Carter Ph 3 FS-CS100818 U.S. Department of Homeland Security
500 C Street SW
Washington, DC 20472
(4; FEMA
August 18, 2010
MEMORANDUM FOR: Regional Division Directors
Regions I - X
FROM: Doug Bellomo, P.E.
Director, Risk Analysis Division
SUBJECT: Procedure Memorandum 64 — Compliance with the Endangered Species
Act (ESA) for Letters of Map Change
EFFECTIVE DATE: All Conditional Letter of Map Change submittals received as of October
1, 2010
Background: The purpose of the ESA is to conserve threatened and endangered species and the
ecosystems upon which they depend. Congress passed the ESA in 1973 with recognition that the natural
heritage of the United States was of "esthetic, ecological, educational, recreational, and scientific value to
our Nation and its people." Congress understood that, without protection, many of our nation's living
resources would become extinct. Species at risk of extinction are considered endangered, whereas species
that are likely to become endangered in the foreseeable future are considered threatened. At present
approximately 1,900 species are listed as threatened or endangered under the ESA. The U.S. Department
of Interior's Fish and Wildlife Service and the U.S. Department of Commerce's National Marine
Fisheries Service (collectively known as "the Services ") share responsibility for implementing the ESA.
Section 7 of the ESA requires each federal agency to insure that any action it authorizes, funds, or carries
out is not likely to jeopardize the continued existence of any listed species or result in the destruction of
adverse modification of designated critical habitat'.
Section 9 of the ESA prohibits anyone from "taking" or "harming" endangered wildlife and similar
prohibitions are generally extended through regulations for threatened wildlife. If an action might harm
a threatened or endangered species, an incidental take authorization is required from the Services under
Sections 7 or 10 of the ESA.
Issue: Conditional Letters of Map Change (LOMCs) are issued before a physical action occurs in the
floodplain and are FEMA's comments as to whether the proposed project would meet minimum National
Flood Insurance Program (NFIP) requirements and how the proposed changes would impact the NFIP
maps. Because Conditional Letters of Map Revision based -on Fill (CLOMR -Fs) and Conditional Letters
1 In accordance with Section 4 of the ESA, critical habitat includes specific areas essential to conservation of a
species and those areas which may require special management considerations or protection.
2 Harm can arise from "significant habitat modification or degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including breeding, feeding or sheltering" [50 CFR Part 17.3].
Page 2 of 4 Procedure Memorandum No. 64 August 18, 2010
of Map Revision (CLOMRs) are submitted to FEMA prior to construction, there is an opportunity to
identify if threatened and endangered species may be affected by the potential project. If potential
adverse impacts could occur, then the Services may require changes to the proposed activity and/or
mitigation.
For LOMC requests involving floodplain activities that have already occurred, private individuals and
local and state jurisdictions are required to comply with the ESA independently of FEMA's process.
These requests do not provide the same opportunity as Conditional LOMCs for FEMA to comment on the
project because map changes are issued only after the physical action has been undertaken.
The following table provides a general summary of FEMA's ESA requirements.
Request ESA- related Action ESA Requirement Related to FEMA Process
Conditional LOMC Requests
CLOMA No physical modification to floodplain is proposed. ESA compliance is required independently of FEMA's
process. The community needs to ensure that permits
are obtained per requirement under Section 60.3(a)(2)
of FEMA's regulations.
CLOMR -F Proposed placement of fill in the floodplain. ESA compliance must be documented to FEMA prior
to issuance of CLOMR -F. FEMA must receive
confirmation of ESA compliance from the Services.
CLOMR Proposed modifications of floodplains, floodways, or ESA compliance must be documented to FEMA prior
flood elevations based on physical and/or structural to issuance of CLOMR. FEMA must receive
changes. confirmation of ESA compliance from the Services.
LOMC Requests
LOMA No physical modification to floodplain has occurred. ESA compliance is required independently of FEMA's
process. The community needs to ensure that permits
are obtained per requirement under Section 60.3(a)(2)
of FEMA's regulations.
LOMR -F Placement of fill in floodplain has occurred. ESA compliance is required independently of FEMA's
process. The community needs to ensure that permits
are obtained per requirement under Section 60.3(a)(2)
of FEMA's regulations.
LOMR Modifications of floodplains, floodways, or flood ESA compliance is required independently of FEMA's
elevations have occurred based on physical and/or process. The community needs to ensure that permits
structural changes. are obtained per requirement under Section 60.3(a)(2)
of FEMA's regulations.
Action Taken: For CLOMR -F and CLOMR applications, the submittal will be reviewed based on:
• Required data elements cited in the NFIP regulations
• Required data elements cited in the MT -1 and MT -2 Application/Certification Form instructions
• Demonstrated compliance with the ESA
Page 3 of 4 Procedure Memorandum No. 64 August 18, 2010
The CLOMR -F or CLOMR request will be processed by FEMA only after FEMA receives
documentation from the requestor that demonstrates compliance with the ESA. The requestor must
demonstrate ESA compliance by submitting to FEMA either an Incidental Take Permit, Incidental Take
Statement, "not likely to adversely affect" determination from the Services or an official letter from the
Services concurring that the project has "No Effect" on listed species or critical habitat. If the project is
likely to cause jeopardy to listed species or adverse modification of critical habitat, then FEMA shall
deny the Conditional LOMC request. This Procedure Memorandum will not change the review process
for Conditional Letters of Map Amendment (CLOMA), Letter of Map Amendment (LOMA), Letter of
Map Revision based -on Fill (LOMR -F), or Letter of Map Revision (LOMR) applications. In addition,
FEMA's Cooperating Technical Partners will be required to comply with this Procedure Memorandum.
Attachment:
Guidance for Compliance with the Endangered Species Act for Conditional Letters of Map Change
Cc: See Distribution List
Page 4 of 4 Procedure Memorandum No. 64 August 18, 2010
Distribution List (electronic distribution only):
Office of Chief Counsel
Risk Analysis Division
Risk Reduction Division
Environmental and Historic Preservation Unit
Regional Mitigation Divisions
Regional Environmental Officers
Legislative Affairs Division
Production and Technical Services Contractors
Customer and Data Services Contractor
Cooperating Technical Partners
Guidance for Compliance with the Endangered Species Act for
Conditional Letters of Map Change
This document supplements the Federal Emergency Management Agency's (FEMA's) Procedure Memorandum
No. 64. It highlights additional resources and frequently asked questions to help guide Conditional Letter of Map
Revision (CLOMR) and Conditional Letter of Map Revision based on Fill (CLOMR -F) applicants in the Endangered
Species Act (ESA) compliance process. The following sections identify helpful web resources, while the final
section includes responses to frequently asked questions.
NATIONAL FLOOD INSURANCE PROGRAM AND LETTERS OF MAP CHANGE
Additional information about the National Flood Insurance Program (NFIP) and Letters of Map Change (LOMC) is
available from FEMA.
NFIP: http: / /www.fema.gov /hazard /flood /info.shtm
LOMCs: http: / /www.fema.gov /hazard /map /lomc.shtm
ESA OF 1973
Additional information about the ESA and Endangered Species Programs is available from the National Marine
Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS). These two agencies, collectively known
as "the Services," share responsibility for implementing the ESA and assisting all individuals (public and private)
in the ESA compliance process.
NMFS: http: / /www.nmfs.noaa.gov /pr /laws /esa/
USFWS: http: / /www.fws.gov /endangered /whatwedo.html
GETTING STARTED WITH ESA COMPLIANCE AND WHO TO CONTACT
CLOMR and CLOMR -F applicants are responsible for demonstrating to FEMA that ESA compliance has been
achieved prior to FEMA's review of a CLOMR or CLOMR -F application. The applicant may begin by contacting a
local Service office, State wildlife agency office, or independent biologist to identify whether threatened or
endangered species exist on the subject property and whether the project associated with the CLOMR or
CLOMR -F request would adversely affect the species. These entities are also available to discuss questions
pertaining to listed species and ESA compliance.
NMFS Regional Offices: http:/ /www.nmfs.noaa.gov /regional.htm
USFWS Office Directory: http: / /www.fws.gov /offices/
DEMONSTRATING COMPLIANCE WITH THE ESA
If species may be affected adversely by the project, the applicant (as a non - Federal entity) would be required to
obtain compliance through the Section 10 process. This process includes applying for an Incidental Take Permit
(ITP) and preparing a habitat conservation plan (HCP). Additional information about Section 10 requirements
and the permit application process is available from NMFS and USFWS.
ITPs and NMFS: http: / /www.nmfs.noaa.gov /pr /permits /faq esapermits.htm
ITPs and USFWS: http: / /www.fws.gov /endangered /hcp /hcpplan.html
HCPs and NMFS: http: / /www.nwr.noaa.gov /Salmon- Habitat/ Habitat - Conservation - Plans /Index.cfm
HCPs and USFWS: http: / /www.fws.gov /endangered /hcp /index.html
NMFS Permit applications: http: / /www.nmfs.noaa.gov /pr /permits /esa permits.htm
USFWS Permit application: http: / /www.fws.gov /forms /3- 200- 56.pdf
August 18, 2010 Page 1
Guidance to Procedure Memorandum No. 64
To demonstrate to FEMA that ESA compliance has been achieved, the requestor must provide an ITP, an
Incidental Take Statement, a "not likely to adversely affect" determination from the Services, or an official letter
from the Services concurring that the project has "No Effect" on proposed or listed species or designated critical
habitat. If the project is likely to cause jeopardy of a species' continued existence or adverse modification to
designated critical habitat, then FEMA shall refuse to review the CLOMR or CLOMR -F request without prior
project approval from the Services. If a Federal entity is involved in a proposal or project for which a CLOMR or
CLOMR -F has been requested, then the applicant may coordinate with that agency to demonstrate to FEMA
that Section 7 ESA compliance has been achieved through that other Federal agency.
Frequently Asked Questions
For which map change applications does FEMA require demonstrated ESA compliance?
FEMA requires applicants to demonstrate compliance for CLOMRs and CLOMR -Fs only.
Why is ESA compliance required before FEMA can review my CLOMR or CLOMR -F application?
All individuals in this country (private and public) have a legal responsibility to comply with the ESA. FEMA recognizes
that potential projects for which a CLOMR or CLOMR -F has been requested may affect threatened and endangered
species. As a result, FEMA requires documentation to show that potential projects comply with the ESA before a
CLOMR or CLOMR -F application can be reviewed.
Why does FEMA not require demonstration of ESA compliance for other LOMC applications?
Many LOMC requests involve floodplain activities that have occurred already. As a result, FEMA does not have the
opportunity to comment on these projects in terms of ESA compliance prior to the physical changes taking place.
Private individuals and local and state jurisdictions are required to comply with the ESA independently of FEMA's
process.
What will FEMA require from CLOMR and CLOMR -F applicants to demonstrate ESA compliance?
As part of the CLOMR or CLOMR -F application, the requestor must provide an ITP, an Incidental Take Statement, a
"not likely to adversely affect" determination from the Services, or an official letter from the Services concurring that
the project has "No Effect" on proposed or listed species or designated critical habitat.
How much time will be required to achieve ESA Compliance?
The timeframe needed to achieve ESA compliance will depend entirely on the complexity of the project, the extent to
which species may be affected by the project, the quality of biological analyses conducted by the applicant, and the
review process as determined by the Services. Therefore, we recommend that LOMC applicants coordinate with the
Services as soon as possible within the project development process.
Who is available to answer my questions about ESA compliance?
NMFS and the USFWS both have staff available around the country to answer questions about threatened and
endangered species and ESA compliance. Refer to the NMFS Regional Offices and USFWS Office Directory links on
Page 1 of this guidance document to identify the nearest available Service office. FEMA does not have staff available
to assist with this process.
How do 1 determine if there are threatened or endangered species or critical habitat in my project area?
The applicant may begin by contacting a local Service office, state wildlife agency office, or independent biologist to
identify whether threatened or endangered species exist on the subject property and whether the project associated
with the CLOMR or CLOMR -F would adversely affect the species.
August 18, 2010 Page 2
Guidance to Procedure Memorandum No. 64
Do 1 need to hire a biologist for this process?
While hiring a biologist may be unnecessary, doing so may help facilitate the process. Biologists familiar with subject
species and the regulatory process can help adequately complete many of the studies required as part of the Section
10 process and fulfill other Section 10 requirements.
How are the following ESA - related terms defined?
"Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in
any such conduct and may include habitat modification or degradation.
"Harm" can arise from significant habitat modification or degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.
"Section 7" requires all Federal agencies, in consultation with USFWS or NMFS, to use their authorities to further the
purpose of the ESA and to ensure that their actions are not likely to jeopardize the continued existence of listed
species or result in destruction or adverse modification of critical habitat.
"Section 10" lays out the guidelines under which a permit may be issued to non - Federal parties to authorize
prohibited activities, such as take of endangered or threatened species.
"ITP" or incidental take permit is a permit issued under section 10(a)(1)(B) of the ESA to a non - Federal party
undertaking an otherwise lawful project that might result in the "take" of an endangered or threatened species.
Application for an incidental take permit is subject to certain requirements, including preparation by the permit
applicant of a HCP.
"HCP" or habitat conservation plan is a legally binding plan that outlines ways of maintaining, enhancing, and
protecting a given habitat type needed to protect species. It usually includes measures to minimize impacts and may
include provisions for permanently protecting land, restoring habitat, and relocating plants or animals to another
area. An HCP is required before an incidental take permit may be issued to non - Federal parties.
Other ESA - related terms not described here may be defined on the following website:
http: / /www.fws.gov /endangered /pdfs /glossary.pdf
August 18, 2010 Page 3
{Date}
{Affected property owner name} {Affected property
owner mailing address}
Re: Notification of {widening and /or narrowing} of 1% (100 -year) annual chance floodplain
Dear Mr. /Ms. /Mr. & Mrs. {Affected property owner}
The Flood Insurance Rate Map (FIRM) for a community depicts land which has been determined to be subject to a 1%
(100 -year) or greater chance of flooding in any given year. The FIRM is used to determine flood insurance rates and to
help the community with floodplain management.
{Revision Requester} is applying for a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency
(DHS -FEMA) on behalf of {Revision requester's client } to revise FIRM {insert FIRM #, panel #, suffix} for {insert
community name, state} along {insert name of flooding source }. {Revision requester} is proposing to revise the FIRM to
reflect {describe project }.
The revision to the FIRM will result in widening {and narrowing} of the 1% annual chance (Zone A) floodplain for {insert
name of flooding source }. The maximum widening of {enter maximum increase} feetoccurs at a point approximately
{location of maximum widening} while the maximum narrowing of {enter maximum narrowing} feetoccurs at a point
approximately {location of maximum narrowing }.
{Choose one of the following two paragraphs}
This letter is to inform you of the revision of the 1% annual chance (Zone A) floodplain on your property at {insert
physical address }.
{or}
We would like to obtain your acceptance of revision of the 1% annual chance (Zone A) floodplain on your property at
{insert physical address }. Please sign and date the provided copy of this letter to signify your acceptance and return it to
{Revision Requester's address} by {insert date to return acceptance by).
If you have any questions or concerns about the proposed changes to the FIRM or its effects on your property, you may
contact me at {Revision requester contact phone number }.
Sincerely,
{Revision requester name}
{Insert the following if asking for property owner acceptance}
I, {insert property owner name }, accept the redelineation of the 1% annual chance floodplain as described above.
{insert property owner name) Date
Figure 6.
SAMPLE LETTER FOR LOMR NOTIFICATION & ACCEPTANCE IN ZONE A THAT WILL WIDEN AND
NARROW THE FLOODPLAIN BUT NOT ESTABLISH BFEs
Instructions MT -2 Forms 15
w � -`cry, Federal Emergency Management Agency
• �{ 1 g Y
• M`_ r Washington, D.C. 20472
9 „:.,: c
April 30, 2001
MEMORANDUM FOR: Hazards Study Branch, Washington, DC Office
Regional Engineers, Regions I -X
Map Coordination Contractors
[original signed]
FROM: Michael K. Buckley, P.E.
Director, Technical Services Division
Mitigation Directorate
SUBJECT: Policy for Use of HEC -RAS in the NFIP
Background:
The U.S. Army Corps of Engineers (USACE) is a leading Federal agency in the development
of hydrologic and hydraulic computer modeling programs. These programs have been used
throughout the history of the National Flood Insurance Program (NFIP) for flood hazard
mapping and the creation of Flood Insurance Studies (FISs) and Flood Insurance Rate Maps
(FIRMs). The HEC -2 computer model is one specific model that has been used extensively
throughout the history of the NFIP for hydraulic calculations to determine base (1- percent-
annual- chance) flood elevations (BFEs).
The Hydrologic Engineering Center of the USACE released the River Analysis System,
HEC -RAS, to replace the HEC -2 hydraulic model. It is a completely new piece of software;
in fact, none of the hydraulic routines from HEC -2 were used in the HEC -RAS software.
This memorandum addresses the policy for the use of HEC -RAS to replace HEC -2 models
for flood hazard mapping in the NFIP.
Issues:
The majority of detailed FISs and FIRMs in existence today have used the HEC -2 model to
calculate BFEs. Paragraph 65.6(a)(8) of the NFIP regulations states that computer model
used in support of a map revision must use the same computer model as was used in the
original study. Since the USACE no longer supports the use of the HEC -2 model, FEMA
must determine when it is appropriate to use HEC -RAS when the original study used HEC -2
to determine BFEs.
FEMA issued a policy statement on March 14, 1997, that explained the appropriate uses of
HEC -RAS. Briefly, it stated that HEC -RAS could be used for a FIS revision or restudy when
one of the following conditions had been met:
• The entire stream was rerun using HEC -RAS; or
• the stream reach remodeled using HEC -RAS was hydraulically independent from the rest
of the stream, e.g. the stream was restudied from the downstream confluence with the
receiving stream (or other hydraulic control section) upstream to a dam or other hydraulic
control section.
Given that the USACE replaced HEC -2 with HEC -RAS, FEMA is hereby revising its policy
statement to encourage the use of HEC -RAS when appropriate, using the following guidance.
Final Procedure:
New detailed Flood Insurance Studies:
For FISs that have not yet been started, and for streams for which there is not an effective
detailed study, FEMA encourages the use of HEC -RAS rather than HEC -2. Note that other
computer models may also be used; FEMA's complete list of acceptable computer models
may be viewed on our web site at http: / /www.fema.gov /fhm/en modl.shtm . HEC -2 is still
considered an acceptable hydraulic model; however the use of HEC -RAS instead of HEC -2
is strongly encouraged.
Revisions to Effective Flood Insurance Studies:
For revisions or restudies of detailed - studied streams, where the effective model is
HEC -2, the conversion to HEC -RAS is encouraged. The following guidelines must be
followed to convert an effective HEC -2 model to HEC -RAS.
• The effective HEC -2 model should be rerun on the requestor's computer in HEC -
RAS to create the duplicate effective model. The differences in water - surface
elevation between the effective model and the duplicate effective model must be fully
documented and thoroughly explained. Most differences in water - surface elevation
can be attributed to the (1) differences in bridge /culvert modeling routines, (2)
method of conveyance calculations, (3) critical depth default, and (4) floodway
computations. The HEC -RAS User's Manual and the HEC -RAS Hydraulics
Reference Manual provide details on computational differences between the two
models and guidance on simulating HEC -2 results; these manuals should be
consulted to explain the differences between the effective and duplicate effective
models.
• Once the duplicate effective model has been established, the corrected effective,
existing conditions, and post - project conditions models can be created in HEC -RAS,
using the duplicate effective HEC -RAS model as the basis.
• The HEC -RAS models must tie in to the effective water - surface profile within 0.5
foot at the upstream and downstream ends of the revised reach, in compliance with
Subparagraph 65.6(a)(2) of the NFIP regulations.
Because the USACE has replaced the HEC -2 model with HEC -RAS, we support the use of
HEC -RAS wherever practicable. I trust that this adequately explains the procedures to
convert HEC -2 models to HEC -RAS for flood hazard mapping purposes in the NFIP. If you
have any comments or questions, please do not hesitate to contact Ms. Sally P. Magee of our
Headquarters staff in Washington, D.C. at (202) 646 -8242, or by e-mail at
sally.magee@fema.gov.