The Federal Emergency Management Agency (FEMA) on Oct. 1 enacted new guidance that will apply to developers in many flood-prone areas that provide habitat for threatened and endangered species.

The guidance — Procedure Memorandum 64 — was issued in response to several successful lawsuits by environmental groups against FEMA for not appropriately considering its responsibilities under the Endangered Species Act (ESA) when commenting on Conditional Letter of Map Revision (CLOMR) allowing development to occur.

Before they submit a CLOMR, land developers are being required to tell FEMA if their proposed project would sufficiently modify the floodway, base-flow elevation and/or 100-year floodplain (Special Flood Hazard Area) as shown on FEMA’s Flood Insurance Rate Maps. 

A CLOMR-F — a Conditional Letter of Map Revision based on Fill — is requested from FEMA when the parcel or proposed structure will be elevated by fill material to be above the base, 100-year floodplain. 

Property owners usually seek a CLOMR on large projects such as levees and dams and residential or commercial developments, while a CLOMR-F might be used for projects on smaller parcels or small parts of a subdivision. While CLOMRs and CLOMR-Fs are not required by FEMA, a local planning board may require them prior to approving a development concept or plan.

When NAHB staff members met with FEMA to discuss the implications of Procedure Memorandum 64 for the development community, the agency reiterated its decision to shift its Endangered Species Act Section 7 consultation obligation to private landowners by requiring them to provide proof that they are complying with the provisions of the ESA when submitting a CLOMR or CLOMR-F.

This change will likely add time and expense to any project in which the property owners need flood map revisions to move forward, because they will have to contact their local Fish and Wildlife Service office for guidance. 

However, should a CLOMR or CLOMR-F require Section 7 consultation, FEMA said it would evaluate the matter and decide whether to consult based on the resources it has available to perform the consultation.

As currently written, the Procedural Memorandum 64 is likely to impose a burden upon developers, builders and private landowners seeking a CLOMC.

NAHB has added clarifying information on the ESA section of its website and continues to discuss with both FEMA and the Fish and Wildlife Service on the future implications of the memorandum.

For more information, e-mail Larissa Mark at NAHB, or call her at 800-368-5242 x8157.