44 C.F.R. Subpart J—Coastal Barrier Resources Act
Title 44 - Emergency Management and Assistance
Source: 55 FR 2311, Jan. 23, 1990, unless otherwise noted.
This subpart implements the Coastal Barrier Resources Act (CBRA) (Pub. L. 97–348) as that statute applies to disaster relief granted to individuals and State and local governments under the Stafford Act. CBRA prohibits new expenditures and new financial assistance within the Coastal Barrier Resources System (CBRS) for all but a few types of activities identified in CBRA. This subpart specifies what actions may and may not be carried out within the CBRS. It establishes procedures for compliance with CBRA in the administration of disaster assistance by FEMA. It shall be the policy of FEMA to achieve the goals of CBRA in carrying out disaster relief on units of the Coastal Barrier Resources System. It is FEMA's intent that such actions be consistent with the purpose of CBRA to minimize the loss of human life, the wasteful expenditure of Federal revenues, and the damage to fish, wildlife and other natural resources associated with coastal barriers along the Atlantic and Gulf coasts and to consider the means and measures by which the long-term conservation of these fish, wildlife, and other natural resources may be achieved under the Stafford Act. Except as otherwise provided in this subpart, the definitions set forth in part 206 of subchapter D are applicable to this subject. (a) Consultation means that process by which FEMA informs the Secretary of the Interior through his/her designated agent of FEMA proposed disaster assistance actions on a designated unit of the Coastal Barrier Resources System and by which the Secretary makes comments to FEMA about the appropriateness of that action. Approval by the Secretary is not required in order that an action be carried out. (b) Essential link means that portion of a road, utility, or other facility originating outside of the system unit but providing access or service through the unit and for which no alternative route is reasonably available. (c) Existing facility on a unit of CBRS established by Public Law 97–348 means a publicly owned or operated facility on which the start of a construction took place prior to October 18, 1982, and for which this fact can be adequately documented. In addition, a legally valid building permit or equivalent documentation, if required, must have been obtained for the construction prior to October 18, 1982. If a facility has been substantially improved or expanded since October 18, 1982, it is not an existing facility. For any other unit added to the CBRS by amendment to Public Law 97–348, the enactment date of such amendment is substituted for October 18, 1982, in this definition. (d) Expansion means changing a facility to increase its capacity or size. (e) Facility means “public facility” as defined in §206.201. This includes any publicly owned flood control, navigation, irrigation, reclamation, public power, sewage treatment and collection, water supply and distribution, watershed development, or airport facility; and nonfederal-aid street, road, or highway; and any other public building, structure, or system, including those used for educational, recreational, or cultural purposes, or any park. (f) Financial assistance means any form of Federal loan, grant guaranty, insurance, payment rebate, subsidy or any other form of direct or indirect Federal assistance. (g) New financial assistance on a unit of the CBRS established by Public Law 97–348 means an approval by FEMA of a project application or other disaster assistance after October 18, 1982. For any other unit added to the CBRS by amendment to Public Law 97–348, the enactment date such amendment is substituted for October 18, 1982, in this definition. (h) Start of construction for a structure means the first placement of permanent construction, such as the placement of footings or slabs or any work beyond the stage of excavation. Permanent construction for a structure does not include land preparation such as clearing, grading, and placement of fill, nor does it include excavation for a basement, footings, or piers. For a facility which is not a structure, start of construction means the first activity for permanent construction of a substantial part of the facility. Permanent construction for a facility does not include land preparation such as clearing and grubbing but would include excavation and placement of fill such as for a road. (i) Structure means a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a mobile home. (j) Substantial improvement means any repair, reconstruction or other improvement of a structure or facility, that has been damaged in excess of, or the cost of which equals or exceeds, 50 percent of the market value of the structure or placement cost of the facility (including all “public facilities”) as defined in the Stafford Act) either: (1) Before the repair or improvement is started; or (2) If the structure or facility has been damaged and is proposed to be restored, before the damage occurred. If a facility is a link in a larger system, the percentage of damage will be based on the relative cost of repairing the damaged facility to the replacement cost of that portion of the system which is operationally dependent on the facility. The term substantial improvement does not include any alternation of a structure or facility listed on the National Register of Historic Places or a State Inventory of Historic Places. (k) System unit means any undeveloped coastal barrier, or combination of closely related undeveloped coastal barriers included within the Coastal Barrier Resources System as established by the section 4 of the CBRA, or as modified by the Secretary in accordance with that statute. (a) The limitations on disaster assistance as set forth in this subpart apply only to FEMA actions taken on a unit of the Coastal Barrier Resources System or any conduit to such unit, including, but not limited to a bridge, causeway, utility, or similar facility. (b) FEMA assistance having a social program orientation which is unrelated to development is not subject to the requirements of these regulations. This assistance includes: (1) Individual and Family Grants that are not for acquisition or construction purposes; (2) Crisis counseling; (3) Disaster Legal services; and (4) Disaster unemployment assistance. Except as provided in §§206.345 and 206.346, no new expenditures or financial assistance may be made available under authority of the Stafford Act for any purpose within the Coastal Barrier Resources System, including but not limited to: (a) Construction, reconstruction, replacement, repair or purchase of any structure, appurtenance, facility or related infrastructure; (b) Construction, reconstruction, replacement, repair or purchase of any road, airport, boat landing facility, or other facility on, or bridge or causeway to, any System unit; and (c) Carrying out of any project to prevent the erosion of, or to otherwise stabilize, any inlet, shoreline, or inshore area, except that such assistance and expenditures may be made available on units designated pursuant to Section 4 on maps numbered S01 through S08 for purposes other than encouraging development and, in all units, in cases where an emergency threatens life, land, and property immediately adjacent to that unit. The following types of disaster assistance actions are exceptions to the prohibitions of §206.344. (a) After consultation with the Secretary of the Interior, the FEMA Regional Director may make disaster assistance available within the CBRS for: (1) Replacement, reconstruction, or repair, but not the expansion, of publicly owned or publicly operated roads, structures, or facilities that are essential links in a larger network or system; (2) Repair of any facility necessary for the exploration, extraction, or transportation of energy resources which activity can be carried out only on, in, or adjacent to coastal water areas because the use or facility requires access to the coastal water body; and (3) Restoration of existing channel improvements and related structures, such as jetties, and including the disposal of dredge materials related to such improvements. (b) After consultation with the Secretary of the Interior, the FEMA Regional Director may make disaster assistance available within the CBRS for the following types of actions, provided such assistance is consistent with the purposes of CBRA; (1) Emergency actions essential to the saving of lives and the protection of property and the public health and safety, if such actions are performed pursuant to sections 402, 403, and 502 of the Stafford Act and are limited to actions that are necessary to alleviate the impacts of the event; (2) Replacement, reconstruction, or repair, but not the expansion, of publicly owned or publicly operated roads, structures, or facilities, except as provided in §206.347(c)(5); (3) Repair of air and water navigation aids and devices, and of the access thereto; (4) Repair of facilities for scientific research, including but not limited to aeronautical, atmospheric, space, geologic, marine, fish and wildlife and other research, development, and applications; (5) Repair of facilities for the study, management, protection and enhancement of fish and wildlife resources and habitats, including but not limited to, acquisition of fish and wildlife habitats and related lands, stabilization projects for fish and wildlife habitats, and recreational projects; and (6) Repair of nonstructural proejcts for shoreline stabilization that are designed to mimic, enhance, or restore natural stabilization systems. (a) Emergency assistance. The Regional Director may approve assistance pursuant to sections 402, 403, or 502 of the Stafford Act, for emergency actions which are essential to the saving of lives and the protection of property and the public health and safety, are necessary to alleviate the emergency, and are in the public interest. Such actions include but are not limited to: (1) Removal of debris from public property; (2) Emergency protection measures to prevent loss of life, prevent damage to improved property and protect public health and safety; (3) Emergency restoration of essential community services such as electricity, water or sewer; (4) Provision of access to a private residence; (5) Provision of emergency shelter by means of providing emergency repair of utilities, provision of heat in the season requiring heat, or provision of minimal cooking facilities; (6) Relocation of individuals or property out of danger, such as moving a mobile home to an area outside of the CBRS (but disaster assistance funds may not be used to relocate facilities back into the CBRS); (7) Home repairs to private owner-occupied primary residences to make them habitable; (8) Housing eligible families in existing resources in the CBRS; and (9) Mortgage and rental payment assistance. (b) Permanent restoration assistance. Subject to the limitations set out below, the Regional Director may approve assistance for the repair, reconstruction, or replacement but not the expansion of the following publicly owned or operated facilities and certain private nonprofit facilities. (1) Roads and bridges; (2) Drainage structures, dams, levees; (3) Buildings and equipment; (4) Utilities (gas, electricity, water, etc.); and (5) Park and recreational facilities. (a) Location determination. For each disaster assistance action which is proposed on the Atlantic or Gulf Coasts, the Regional Director shall: (1) Review a proposed action's location to determine if the action is on or connected to the CBRS unit and thereby subject to these regulations. The appropriate Department of Interior map identifying units of the CBRS will be the basis of such determination. The CBRS units are also identified on FEMA Flood Insurance Maps (FIRM's) for the convenience of field personnel. (2) If an action is determined not to be on or connected to a unit of the CBRS, no further requirements of these regulations needs to be met, and the action may be processed under other applicable disaster assistance regulations. (3) If an action is determined to be on or connected to a unit of the CBRS, it is subject to the consultation and consistency requirements of CBRA as prescribed in §§206.348 and 206.349. (b) Emergency disaster assistance. For each emergency disaster assistance action listed in §206.346(a), the Regional Director shall perform the required consultation. CBRA requires that FEMA consult with the Secretary of the Interior before taking any action on a System unit. The purpose of such consultation is to solicit advice on whether the action is or is not one which is permitted by section 6 of CBRA and whether the action is or is not consistent with the purposes of CBRA as defined in section 1 of that statute. (1) FEMA has conducted advance consultation with the Department of the Interior concerning such emergency actions. The result of the consultation is that the Secretary of the Interior through the Assistance Secretary for Fish and Wildlife and Parks has concurred that the emergency work listed in §206.346(a) is consistent with the purposes of CBRA and may be approved by FEMA without additional consultation. (2) Notification. As soon as practicable, the Regional Director will notify the designated Department of the Interior representative at the regional level of emergency projects that have been approved. Upon request from the Secretary of the Interior, the Associate Director, SLPS, or his or her designee will supply reports of all current emergency actions approved on CBRS units. Notification will contain the following information: (i) Identification of the unit in the CBRS; (ii) Description of work approved; (iii) Amount of Federal funding; and (iv) Additional measures required. (c) Permanent restoration assistance. For each permanent restoration assistance action including but not limited to those listed in §206.346(b), the Regional Director shall meet the requirements set out below. (1) Essential links. For the repair or replacement of publicly owned or operated roads, structures or facilities which are essential links in a larger network or system: (i) No facility may be expanded beyond its predisaster design. (ii) Consultation in accordance with §206.348 shall be accomplished. (2) Channel improvements. For the repair of existing channels, related structures and the disposal of dredged materials: (i) No channel or related structure may be repaired, reconstructed, or replaced unless funds were appropriated for the construction of such channel or structure before October 18, 1982; (ii) Expansion of the facility beyond its predisaster design is not permitted; (iii) Consultation in accordance with §206.348 shall be accomplished. (3) Energy facilities. For the repair of facilities necessary for the exploration, extraction or transportation of energy resources: (i) No such facility may be repaired, reconstructed or replaced unless such function can be carried out only in, on, or adjacent to a coastal water area because the use or facility requires access to the coastal water body; (ii) Consultation in accordance with §206.348 shall be accomplished. (4) Special-purpose facilities. For the repair of facilities used for the study, management, protection or enhancement of fish and wildlife resources and habitats and related recreational projects; air and water navigation aids and devices and access thereto; and facilities used for scientific research, including but not limited to aeronautical, atmospheric, space, geologic, marine, fish and wildlife and other research, development, and applications; and, nonstructural facilities that are designed to mimic, enhance or restore natural shoreline stabilization systems: (i) Consultation in accordance with §206.348 shall be accomplished; (ii) No such facility may be repaired, reconstructed, or replaced unless it is otherwise consistent with the purposes of CBRA in accordance with §206.349. (5) Other public facilities. For the repair, reconstruction, or replacement of publicly owned or operated roads, structures, or facilities that do not fall within the categories identified in paragraphs (c)(1), (2), (3), and (4) of this section: (i) No such facility may be repaired, reconstructed, or replaced unless it is an “existing facility;” (ii) Expansion of the facility beyond its predisaster design is not permitted; (iii) Consultation in accordance with §206.348 shall be accomplished; (iv) No such facility may be repaired, reconstructed, or replaced unless it is otherwise consistent with the purposes of CBRA in accordance with §206.349. (6) Private nonprofit facilities. For eligible private nonprofit facilities as defined in these regulations and of the type described in paragraphs (c)(1), (2), (3), and (4) of this section: (i) Consultation in accordance with §206.348 shall be accomplished. (ii) No such facility may be repaired, reconstructed, or replaced unless it is otherwise consistent with the purposes of CBRA in accordance with §206.349. (7) Improved project. An improved project may not be approved for a facility in the CBRS if such grant is to be combined with other funding, resulting in an expansion of the facility beyond the predisaster design. If a facility is exempt from the expansion prohibitions of CBRA by virtue of falling into one of the categories identified in paragraph (c)(1), (2), (3), or (4) of this section, then an improved project for such facilities is not precluded. (8) Alternate project. A new or enlarged facility may not be constructed on a unit of the CBRS under the provisions of the Stafford Act unless the facility is exempt from the expansion prohibition of CBRA by virtue of falling into one of the categories identified in paragraph (c)(1), (2), (3), or (4) of this section. As required by section 6 of the CBRA, the FEMA Regional Director will consult with the designated representative of the Department of the Interior (DOI) at the regional level before approving any action involving permanent restoration of a facility or structure on or attached to a unit of the CBRS. (a) The consultation shall be by written memorandum to the DOI representative and shall contain the following: (1) Identification of the unit within the CBRS; (2) Description of the facility and the proposed repair or replacement work; including identification of the facility as an exception under section 6 of CBRA; and full justification of its status as an exception; (3) Amount of proposal Federal funding; (4) Additional mitigation measures required; and (5) A determination of the action's consistency with the purposes of CBRA, if required by these regulations, in accordance with §206.349. (b) Pursuant to FEMA understanding with DOI, the DOI representative will provide technical information and an opinion whether or not the proposed action meets the criteria for a CBRA exception, and on the consistency of the action with the purposes of CBRA (when such consistency is required). DOI is expected to respond within 12 working days from the date of the FEMA request for consultation. If a response is not received within the time limit, the FEMA Regional Director shall contact the DOI representative to determine if the request for consultation was received in a timely manner. If it was not, an appropriate extension for response will be given. Otherwise, he or she may assume DOI concurrence and proceed with approval of the proposed action. (c) For those cases in which the regional DOI representative believes that the proposed action should not be taken and the matter cannot be resolved at the regional level, the FEMA Regional Director will submit the issue to the FEMA Assistant Associate Director for Disaster Assistance Programs (DAP). In coordination with the Office of General Counsel (OGC), consultation will be accomplished at the FEMA National Office with the DOI consultation officer. After this consultation, the Assistant Associate Director, DAP, determines whether or not to approve the proposed action. Section 6(a)(6) of CBRA requires that certain actions be consistent with the purposes of that statute if the actions are to be carried out on a unit of the CBRA. The purpose of CBRA, as stated in section 2(b) of that statute, is to minimize the loss of human life, wasteful expenditure of Federal revenues, and the damage to fish, wildlife, and other natural resources associated with the coastal barriers along with Atlantic and Gulf coasts. For those actions where a consistency determination is required, the FEMA Regional Director shall evaluate the action according to the following procedures, and the evaluation shall be included in the written request for consultation with DOI. (a) Impact identification. FEMA shall identify impacts of the following types that would result from the proposed action: (1) Risks to human life; (2) Risks of damage to the facility being repaired or replaced; (3) Risks of damage to other facilities; (4) Risks of damage to fish, wildlife, and other natural resources; (5) Condition of existing development served by the facility and the degree to which its redevelopment would be encouraged; and (6) Encouragement of new development. (b) Mitigation. FEMA shall modify actions by means of practicable mitigation measures to minimize adverse effects of the types listed in paragraph (a) of this section. (c) Conservation. FEMA shall identify practicable measures that can be incorporated into the proposed action and will conserve natural and wildlife resources. (d) Finding. For those actions required to be consistent with the purposes of CBRA, the above evaluation must result in a finding of consistency with CBRA by the Regional Director before funding may be approved for that action.
Title 44: Emergency Management and Assistance
PART 206—FEDERAL DISASTER ASSISTANCE FOR DISASTERS DECLARED ON OR AFTER NOVEMBER 23, 1988
Subpart J—Coastal Barrier Resources Act
§ 206.340 Purpose of subpart.
§ 206.341 Policy.
§ 206.342 Definitions.
§ 206.343 Scope.
§ 206.344 Limitations on Federal expenditures.
§ 206.345 Exceptions.
§ 206.346 Applicability to disaster assistance.
§ 206.347 Requirements.
§ 206.348 Consultation.
§ 206.349 Consistency determinations.
§§ 206.350-206.359 [Reserved]
