All activities assisted by HMA programs must conform to FEMA regulations on floodplain management and protection of wetlands in 44 CFR Part 9 and the eight-step decision-making process (refer to Figure 5). Proposed actions located in the 1% annual chance floodplain (or 0.2% annual chance floodplain for critical actions), and proposed actions that have the potential to affect or be affected by a floodplain or wetland will only be eligible for an award or subaward if the applicant or subapplicant demonstrates that there is no practicable alternative to locating the action in a floodplain or wetland in accordance with 44 CFR §§ 9.9-11.
A critical action is an action for which even a slight chance of flooding poses too great of a risk. It may or may not be associated with a critical facility.[113] FEMA is responsible for determining if an action is a critical action. If FEMA identifies a critical action, FEMA must evaluate potential harm to the action from the 0.2% annual chance flood.
Critical Action Definition
Critical actions are defined in 44 CFR § 9.4, which includes examples of actions for which even a slight chance of flooding is too great. If an action is not specified in 44 CFR Part 9, FEMA uses the U.S. Water Resource Council Floodplain Management Guidelines for Implementing EO 11988, amended by EO 13690, and the following series of questions about the subject structure or facility to determine whether a proposed action is deemed a critical action:
- If flooded, would the proposed action create an added dimension to the disaster, such as for liquefied natural gas terminals and facilities producing and storing highly volatile, toxic or water-reactive materials?
- Given the flood warning lead-time available, would the occupants of buildings such as hospitals, schools and nursing homes be sufficiently mobile to avoid loss of life and injury?
- Would essential and irreplaceable records, utilities and/or emergency services be lost or become inoperative if flooded?
If any of the answers are “yes,” then the proposed action is a critical action.
HMA cannot be used to assist new construction or substantial improvements in a floodway or new construction in a Coastal High Hazard Area unless it constitutes a functionally dependent use or facilitates an open space use.[114] Substantial improvement is defined as any reconstruction, rehabilitation, addition or other improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement.[115] However, the costs to elevate or dry floodproof a damaged structure or facility are not included in determining whether the substantial improvement threshold is triggered.
Figure 5. Eight-Step Decision-Making Process for Floodplain Management Considerations and Protection of Wetlands