Hazard Mitigation Assistance (HMA)  
Guidance on Property Acquisition and Relocation for the Purpose of Open Space

Recent amendments to Title 44 of the Code of Federal Regulations added a new 
Part 80, Property Acquisition and Relocation for Open Space.  More detailed 
guidance to assist with implementation of the provisions found in Part 80 has 
also been developed.  This property acquisition and relocation guidance applies 
to all FEMA hazard mitigation grant programs.  It is included in the FY09 Hazard 
Mitigation Assistance (HMA) Program Guidance at Section 2.3.13 and also governs 
this project type under the Hazard Mitigation Grant Program (HMGP) in place of 
previous desk reference sections.   The property acquisition guidance section 
must be read in conjunction with the overall requirements for each grant program 
including the HMGP.  The Part 80 rule and implementing property acquisition 
guidance are effective for all disasters declared on or after December 3rd, 2007 
(12/03/2007). 

The following is FEMA guidance on property acquisition for the purpose of open 
space for the HMGP.  The text below is identical to that contained in the FY09 
Unified HMA Guidance document, and reflects the section references to that 
document. 

2.3.13 Property Acquisition and Relocation for Open Space

2.3.13.1 General

For property acquisition and relocation projects, FEMA HMA Applicants and 
subapplicants must comply with 44 CFR Part 80, FEMAs Property Acquisition and 
Relocation for Open Space regulation, and this HMA Program Guidance. A project 
may not be framed in a manner that has the effect of circumventing these 
requirements.

This section applies to all the HMA Programs and is also applicable to HMGP, and 
replaces the following portions of the HMGP Desk Reference, Publication FEMA 
345, dated October 1999:

Section 7

Page 7-5 and 7-6, Applicant Agreement to Property Acquisition Requirements 
section;

Section 11

Page 11-5, Duplication of Benefits paragraph;

Pages 11-6 and 11-7;

Pages 11-10 through 11-24;

Job Aid 11-2, 11-3, and 11-4;

Section 12

Page 12-4; and 

Related tools or job-aids

This section, with the exception of Section 2.3.13.2.2 (Open Space 
Requirement/Land Use) applies to projects for which the funding program 
application period opens, or for which funding is made available pursuant to a 
major disaster declared on or after December 3, 2007. Prior to that date, 
applicable program regulations and guidance in effect for the funding program 
shall apply. Section 2.3.13.2.2 (Open Space Requirement/Land Use) applies as of 
December 3, 2007, to all FEMA-funded property acquisitions for the purpose of 
open space, regardless of when the application period opened or when the major 
disaster was declared.

2.3.13.1.1 Purpose and Scope

Generally, FEMA-funded property acquisition projects consist of a community 
purchasing flood-prone structures from willing sellers and either demolishing 
the structures or relocating the structures to a new site outside of the 
floodplain. The purchased property is then maintained for open-space purposes in 
perpetuity in order to restore and/or conserve the natural floodplain functions. 
While some communities may elect to develop a new site outside of the floodplain 
for participating residents to move to, FEMA encourages communities to opt for 
the simpler acquisition and structure removal model. These projects require only 
minimal environmental review, are considerably less expensive, and allow 
homeowners to determine where to relocate.

2.3.13.1.2 Roles and Responsibilities

Applicants/Grantees and subapplicants/subgrantees are responsible for ensuring 
that applications for acquisition/relocation open space projects and the 
implementation of approved projects meet all requirements of Part 80 and this 
Guidance, and for providing the necessary information to enable FEMA 
determinations of eligibility, technical feasibility, cost effectiveness, and 
Environmental/Historic Preservation compliance for proposed projects. They must 
also ensure that applications/subapplications are not framed in a manner that 
has the effect of circumventing any regulatory requirements. Because Federal law 
requires properties acquired with FEMA funds to be maintained as open space in 
perpetuity, Grantees and subgrantees are also responsible for oversight in 
ensuring and enforcing proper land use, and for coordinating with FEMA on any 
future land use or property disposition issues.

During development of a project, property owners are responsible for notifying 
the subapplicant of their interest in participating in the proposed project. 
They must provide all requested information to the subapplicant, and they must 
take all required actions necessary for completing the grant subapplication and 
for implementing the property acquisition activities.

A more complete listing of the responsibilities of all parties can be found at 
44 CFR  80.5.

2.3.13.2 Requirements Prior to Award

2.3.13.2.1 Eligible and Ineligible Costs

2.3.13.2.1.1 Allowable Costs

Allowable costs are those costs that are necessary and reasonable for the proper 
and efficient performance and administration of the Federal award. Allowable 
costs for property acquisition/structure removal projects depend upon the scope 
of the project. 

The following costs associated with the acquisition of hazard-prone real 
property and the demolition of structures are generally allowable:

Market value of the real property (land and structures) either at the time of 
sale or immediately prior to the most recent disaster or flood event subject to 
applicable adjustments. See Section 2.3.13.3.1.5 (Purchase Offer). However, for 
land already owned by an eligible entity, compensation will be for the structure 
and for development rights only, not for the land. This includes any entity 
eligible to apply for grant or subgrant funding under the relevant funding 
program, even if they are not the Applicant or subapplicant for the project;

Fees for necessary appraisal costs, title search, title insurance, property 
inspection, and survey (if necessary);

Fees associated with title transfer, contract review, and other costs associated 
with conducting the real estate settlement including recordation of the deed and 
deed restrictions; and

Demolition and removal of structures.

The following costs associated with the acquisition of hazard-prone property and 
relocation of structures are generally allowable:

Market value of the real property (land only). See Section 2.3.13.3.1.5 
(Purchase Offer). However, for land already owned by an eligible entity 
compensation will be for the development rights. This includes any entity 
eligible to apply for grant or subgrant funding under the relevant funding 
program, even if they are not the Applicant or subapplicant for the project;

Fees for necessary appraisal costs, title search, title insurance, property 
inspection, and survey (if necessary);

Fees associated with title transfer, contract review, other costs associated 
with conducting the real estate settlement, including recordation of the deed 
and deed restrictions;

Jacking and moving of structure to new site;

Necessary individual site preparations including foundation, water, sewer, and 
utility hookups, but not aesthetic improvements and landscaping, new property 
acquisition, or public infrastructure and utility development; and

Demolition, site restoration, and site stabilization for the acquired site.

The following costs of demolition activities at the vacated site are generally 
allowable if necessary for either property acquisition/structure removal project 
type:

Removal of demolition debris to an approved landfill (this includes debris from 
the demolition of houses, garages, driveways, sidewalks and above-grade concrete 
slabs);

Asbestos abatement;

Removal of septic tanks (if not removed, floors and walls must be cracked or 
crumbled so the tank will not hold water, and be filled with sand or other clean 
fill);

Removal of all structure foundation and basement walls to at least 1 foot below 
the finish grade of the site;

Filling of basements with compacted clean fill (basement floors must have a 
minimum one foot diameter hole in the floor to allow for drainage);

Removal of only those trees that restrict the demolition work on any structure;

Termination of all abandoned utilities at least 2 feet below the finish grade of 
the site;

Capping of all wells and/or removal of associated components; and

Grading, leveling, and site stabilization of all demolition sites.

In addition to the allowable costs identified above, in exceptional 
circumstances there may be a significant shortfall between the amount the 
subgrantee pays an owner for his/her damaged residence and the cost of a 
comparable replacement home in a non-hazard-prone location. In that case, the 
State/Grantee may allow the subgrantee to provide owner-occupants a payment to 
apply to the difference between the two amounts, up to $22,500 per property. 
More information about supplemental housing payments can be found in Section 
2.3.13.3.1.7 (Additions to Purchase Offer).

2.3.13.2.1.2 Property-Related Costs That Are Not Allowable

Costs that are not allowable under FEMAs mitigation grant programs include, but 
are not limited to, the following:

Compensation for land that is already held by an eligible entity. This is the 
case even if the eligible entity is not the subapplicant for the project. In 
that event, however, compensation for development rights (i.e., obtaining an 
open space easement) may be an allowable cost; and

The cleanup or remediation of contaminated properties, except for permitted 
disposal of incidental demolition and household hazardous wastes.

2.3.13.2.1.3 Duplication of Benefits

Costs that duplicate amounts received by or available to the Applicant, 
subapplicant, property owner, or affected tenant from another source for the 
same purpose are not allowable. FEMA and the Grantee must avoid DOB between FEMA 
mitigation grant program funds and any other source, as required by 44 CFR  
80.9 (c) and this guidance. More information about DOB can be found in Section 
2.3.13.3.1.6 (Deductions from Purchase Offer). FEMA will recoup duplicative 
amounts identified after grant funds have been expended. Property owners who 
receive duplicative payments following the conclusion of the property settlement 
are responsible for reimbursing the subgrantee for those duplicated funds. 

2.3.13.2.1.4 Negligence, Tortious Conduct, Legal Obligations

Mitigation grant funds are not available when an Applicant, subapplicant, other 
project participant, or third partys negligence or intentional actions 
contributed to the conditions that result in the need for mitigation. 
Additionally, mitigation grant funds are not available to satisfy or reimburse 
for legal obligations, such as those imposed by a legal settlement, court order, 
or State law. 

2.3.13.2.2 Project Eligibility

To be eligible, the subapplicant must acquire the full fee title of properties 
from willing, voluntary sellers, or retain such interest. The subapplicant must 
commit not to use eminent domain should the property owner choose not to 
participate, and must verify that the property is not needed as a part of an 
intended planned project. A property may not be subdivided prior to acquisition, 
except for portions outside the identified hazard area, such as the SFHA or any 
risk zone identified by FEMA (see Section 2.3.13.3.1.10, Relocation and Removal 
of Existing Buildings).

Properties that are eligible for acquisition include those where: 

The property will be acquired from a willing, voluntary seller;

The property contains a structure that may or may not have been damaged or 
destroyed due to an event;

For the FMA, RFC and SRL programs, the property contains a structure insured by 
the NFIP at the time of Application submittal;

All incompatible easements or encumbrances can be extinguished;

The property cannot be contaminated with hazardous materials at the time of 
acquisition, other than incidental demolition or household waste;

Any relocated structure must be placed on a site located outside of the SFHA, 
outside of any regulatory erosion zones, and in conformance with any other 
applicable State or local land use regulations;

The property cannot be part of an intended, planned, or designated project area 
for which the land is to be acquired by a certain date, and/or where there is an 
intention to use the property for any public or private future use inconsistent 
with the open space deed restrictions and FEMA acquisition requirements 
(examples include roads and flood control levees); and

The property will not be subdivided prior to acquisition, except for portions 
outside the identified hazard area, such as the SFHA or any risk zone identified 
by FEMA.

2.3.13.2.2.1 Hazardous Materials

At the time of acquisition, property to be acquired cannot be contaminated with 
hazardous materials other than incidental demolition or household waste. The 
presence of non-leaking underground storage tanks, septic systems, home heating 
oil tanks, and normal quantities of lead, asbestos, and household hazardous 
materials does not preclude the use of grant funds for acquisition. Costs 
associated with disposing of these materials should be addressed in the project 
budget. More information on hazardous materials can be found in Section 
2.3.13.3.1.1 (Hazardous Materials).

2.3.13.2.2.2 Open Space Restrictions

To be eligible, a project must result in property acquisition that meets all of 
the requirements of 44 CFR Part 80 and this Guidance governing the use of grant 
funds and the use of acquired real property, including:

The subgrantee will dedicate and maintain the property in perpetuity for uses 
compatible with open-space, recreational, or wetlands management practices, and 
consistent with conservation of natural floodplain functions, by recording deed 
restrictions consistent with the model deed (see Section 2.3.13.2.3.3, Deed 
Restriction Language);

The property acquired, accepted, or from which structures are removed will carry 
a permanent deed restriction providing that the property be maintained for open-
space, recreational, or wetlands management purposes only;

No new structures will be built on the property except as indicated below:

A public building that is open on all sides and functionally related to a 
designated open-space or recreational use;

A public restroom;

A structure that is compatible with open-space, recreational, or wetlands 
management usage and proper floodplain management policies and practices, which 
the FEMA Regional Administrator approves in writing before the construction of 
the structure begins;

Any structures built on the property according to the third subparagraph above 
will be elevated or flood-proofed to the Base Flood Elevation (BFE) plus 1 foot 
of freeboard and meet applicable requirements of the NFIP floodplain management 
regulations at 44 CFR  60.3;

After settlement, no Federal disaster assistance for any purpose from any 
Federal source, nor flood insurance payments, may be made with respect to the 
property, and no person or entity shall seek such amounts;

The subgrantee must obtain the approval of the State/Grantee and the FEMA 
Regional Administrator before conveying ownership (fee title) of the property to 
another public agency or qualified conservation organization. Property transfer 
to private citizens and corporations will not be approved. All development 
rights in the form of a conservation easement on the property must be conveyed 
to the conservation organization or retained by the subgrantee or other public 
entity; and

The subgrantee accepts responsibility for monitoring and enforcing the deed 
restriction and/or easement language.

2.3.13.2.3 Subapplication Information

2.3.13.2.3.1 Project Information

Subapplicants are responsible for meeting the requirements specified at 44 CFR  
80.13, and must provide information necessary for the Applicant and FEMA to 
determine the eligibility of the project, as specified in the subapplication 
package. This includes project description and property information (including 
Environmental/Historic Preservation information). Project cost estimate 
information for the value of the properties must be provided as appropriate: for 
the HMGP, a cost estimate for each property is required; for the PDM, FMA, RFC, 
and SRL programs, market value documentation is required. Subapplicants must 
include cost effectiveness information, including the net present value of the 
project benefits for each property to be acquired. Additionally, subapplicants 
must identify each property address included in the SOW, and provide a 
photograph of each property. 

The subapplicant should include additional, alternate properties it may 
substitute should one or more of the other properties drop out due to 
eligibility or owner withdrawal. The subapplicant shall provide the same level 
of information for the alternate properties as provided for the proposed 
properties. 

The subgrantee must identify an appeal or reconsideration process for property 
owners who dispute the amount of the purchase offer property valuation.

The subapplicant must also provide certification that each participant who will 
receive pre-event value is a National of the United States or qualified alien. 
Subgrantees will ask all acquisition project participants (property owners) to 
certify that they are either a National of the United States or a qualified 
alien. Subgrantees will offer participants who refuse to certify, or who are not 
Nationals of the United States or qualified aliens, no more than the appraised 
current market value for their property (see Section 2.3.13.3.1.5.2, Purchase 
Offer and Nationality).

2.3.13.2.3.2 Assurances

Subapplicants requesting assistance for property acquisition or building 
relocation must include a written Statement of Assurances in their 
subapplication. Acquisition projects without these formal assurances will not be 
considered for funding. The Statement of Assurances must be signed by the 
subapplicants authorized agent and a model statement is available at: 
http://www.fema.gov/government/grant/resources/acq_assurances.shtm. The 
Statement of Assurances must provide acknowledgment of, and agreement to, the 
following requirements that apply to acquisition of the property:

Participation by property owners is voluntary. The prospective participants have 
been/will be informed in writing that participation in the program is voluntary, 
and that the subapplicant will not use its eminent domain authority to acquire 
their property for the project purposes should negotiations fail.

Example Notices of Voluntary Interest are available at: 
http://www.fema.gov/government/grant/resources/vol_notice1.shtm and 
http://www.fema.gov/government/grant/resources/vol_notice2.shtm;

Each property owner will be informed, in writing, of what the subapplicant 
considers to be the market value of the property. The subapplicant will use the 
model Statement of Voluntary Participation to document the market value of the 
property and will provide a copy for each property after award. This model 
Statement of Voluntary Participation is available on FEMAs Web site at: 
http://www.fema.gov/government/grant/vol_participation.shtm;

All of the requirements of 44 CFR  80.17 and 80.19, this program guidance, and 
the deed restrictions governing the use of the subgrant funding and the use of 
acquired land are applicable. The property shall be dedicated and maintained in 
perpetuity as open space for the conservation of natural floodplain functions 
and restricted from use or development that interferes with that purpose;

Properties associated with the proposed project are not part of an intended, 
planned, or designated project area for which the land is to be acquired by a 
certain date, and/or where there is an intention to use the property for any 
public or private future use inconsistent with the open space deed restrictions 
and FEMA acquisition requirements. Examples include planned construction of, or 
improvements to, publicly owned buildings, road construction projects, flood 
control levees, or other development projects. The acquired land will be 
unavailable for these and all other such incompatible uses. Any intent to use 
any of the properties proposed for acquisition as part of an intended, planned, 
or designated project area could make the project ineligible for mitigation 
grant funding. Subapplicants shall coordinate with the appropriate FEMA Regional 
Office for further information;

Existing buildings will be removed within 90 days of settlement;

Once the subgrantee acquires the property it may convey a property interest only 
with the prior approval of the FEMA Regional Administrator and only to certain 
entities in accordance with 44 CFR  80.19 and this program guidance;

Every 3 years from the date of acquiring the property, the subgrantee must 
submit to the Grantee, who will submit to the FEMA Regional Administrator a 
report certifying that it has inspected the subject property within the month 
preceding the report, and that the property continues to be maintained 
consistent with the provisions of the grant. If the subject property is not 
maintained according to the terms of the grant, the Grantee and FEMA, its 
representatives, successors and assigns are responsible for taking measures to 
bring the property back into compliance;

For an offer of pre-event value, the subgrantee will obtain documentation from 
the property owner demonstrating that the property owner is a National of the 
United States or qualified alien;

After settlement, no disaster assistance for any purpose from any Federal entity 
may be sought or provided with respect to the property, and FEMA will not 
distribute flood insurance benefits for that property for claims related to 
damage occurring after the date of the property settlement; and

At closeout, the subgrantee will provide information in accordance with 44 CFR  
80.21 and this program guidance.

Subapplications that do not include a signed Statement of Assurances 
acknowledging these requirements are incomplete and will not be considered for 
funding.

2.3.13.2.3.3 Deed Restriction Language

The subapplication must also include the deed restriction language, consistent 
with the language in the FEMA Model Deed, that the subapplicant intends to 
record with each property deed (but need not include property specific details). 
A Model Deed Restriction is available on FEMAs Web page at 
http://www.fema.gov/government/grant/resources/pre-award.shtm. The subapplicant 
must seek approval from FEMAs Office of Chief Counsel, through the FEMA 
Regional Office, for any changes in language differing from the Model Deed 
Restriction language. Changes may be made to comply with local legal form 
requirements, but changes to substantive, programmatic provisions will not be 
entertained.

2.3.13.2.3.4 Documentation of Voluntary Interest

Documentation of voluntary interest signed by each property owner must be 
submitted with the project subapplication. This documentation should be 
accomplished as early in the project development process as is feasible. 
Participation in acquisition/relocation projects by property owners is 
voluntary. The prospective participants must be informed in writing that 
participation in the program is voluntary, and that the subapplicant will not 
use its eminent domain authority to acquire their property for the project 
purposes should negotiations fail and the property owner chooses not to 
participate. 

The Notice of Voluntary Interest can be documented using individual signed 
statements, or through a group sign-up sheet (as identified in the examples 
cited below). The documentation must record the name and signature of interested 
property owners associated with each property and must also clearly show each 
property owner acknowledging the following language: 

This project for open space acquisition is voluntary and neither the 
[Applicant] nor the [subapplicant] will use its eminent domain authority to 
acquire the property for open space purposes should negotiations fail and the 
property owner chooses not to participate. 

Example Notices of Voluntary Interest are available at: 
http://www.fema.gov/government/grant/resources/vol_notice1.shtm and 
http://www.fema.gov/government/grant/resources/vol_notice2.shtm.

For the SRL Program, documentation of voluntary interest from each property 
owner may be documented in the Pre-Award Consultation Agreement and included 
with the project subapplication (see Section 3.4.4.4, Consultation with the 
Property Owner).

During the implementation of the project, the subgrantee shall execute a more 
formal Statement of Voluntary Participation with the owner of each property 
identified in the subapplications Statement of Work (see Section 2.3.13.3.1.3, 
Statement of Voluntary Participation).

2.3.13.2.3.5 Tenant Information

Although the property owner must voluntarily agree to participate in the open 
space project, participation is not voluntary for tenants whose property is 
being acquired as a result of an acquisition project. Therefore, the project 
subapplication must document properties occupied by tenants. Tenant assistance 
may include costs such as moving expenses, replacement housing rental payments, 
and relocation assistance advisory services. These costs must be estimated, and 
included in the project cost estimate. More specific information on costs 
related to tenant relocation can be found in Section 2.3.13.3.1.8 (Tenants).

2.3.13.2.3.6 Consultation Regarding Other Ongoing Federal Activities

Because properties acquired under HMA programs must be permanently converted to 
open space and will be unavailable for future development, subapplicants must 
coordinate to ensure that other Federal actions are not anticipated that would 
affect the same parcels considered for acquisition for open space. 

2.3.13.2.3.6.1 U.S. Army Corps of Engineers Coordination

The subapplicant must demonstrate in its subapplication for mitigation 
assistance that it has consulted with the United States Army Corps of Engineers 
(USACE) regarding each subject propertys potential future use for the 
construction of a flood levee system (including berms, floodwalls, or dikes) and 
that USACE will reject future consideration of such use if the subapplicant 
accepts FEMA assistance to convert the property to permanent open space. FEMA 
will not award funds for any property without this documentation. The 
construction of flood levee systems on these lands is incompatible with open 
space uses and, therefore, will not be allowed. This restriction generally does 
not apply to structures for ecosystem preservation, restoration, or enhancement.

If this initial level of consultation with the subapplicant indicates that the 
local government wishes to consider a flood damage reduction levee in the area, 
the subapplicant or local government must then undertake an expanded 
consultation process with the State/Grantee, FEMA, and USACE. The consultation 
will involve the identification and full consideration of future potential land 
use conflicts to enable the local government to make an informed decision 
regarding how it should proceed. There may be situations where the local 
government may be able to pursue both the open space acquisition and flood 
damage reduction levee projects in the same community without any land use 
conflicts (i.e., the levee will not cross acquired land). If, however, the local 
government determines that such conflicts cannot be resolved and chooses to 
pursue the USACE flood damage reduction levee, the local government must notify 
FEMA, through the State/Grantee, that it will not submit a subapplication for 
FEMA mitigation grant funding for property acquisition or relocation for open 
space.

If the local government decides to pursue an acquisition project following the 
consultation process, the subapplicant will include in its subapplication 
assurances a resolution or a comparable document adopted by the governing body 
of the local government that indicates:

In consultation with USACE, the local government has addressed and considered 
the potential future use of these lands for the construction of flood damage 
reduction levees, and has chosen to proceed with acquisition of permanent open 
space; and

The local government understands that land acquired for open space purposes 
under the relevant mitigation grant program will be restricted in perpetuity to 
open space uses and will be unavailable for any use that is incompatible with 
the open space and floodplain purposes designated for the property, including 
the construction of flood damage reduction levees, paved roads, and other 
development.

2.3.13.2.3.6.2 Department of Transportation Coordination

The subapplicant must demonstrate in their subapplication for mitigation 
assistance that they have coordinated with the relevant State Department of 
Transportation (DOT) to ensure that no future, planned improvements or 
enhancements to the Federal aid systems, or other State transportation projects, 
are under consideration that will affect the proposed project area. The 
construction of such improvements, enhancements, or projects on these lands is 
incompatible with open space uses and, therefore, will not be allowed. 

2.3.13.2.3.6.3 Other Federal Agency Coordination

The State/Grantee and subapplicant must demonstrate in the 
application/subapplication for mitigation assistance that they have consulted 
with other Federal agencies, as appropriate, regarding other program 
requirements and/or activities, and identified the relationship to FEMA 
mitigation grant activities and funding. Other Federal agencies requirements 
may apply to the mitigation grant activities if other agency funds are used for 
activities related to the project in the community, or to match the mitigation 
grant funding, such as CDBG funds. In the limited cases when another Federal 
agencys funds may be used to contribute to the non-Federal share of a FEMA-
funded mitigation project, both programs requirements apply to the whole 
project. The State/Grantee is responsible for coordinating the various programs 
available within the State. It is important to include local program 
representatives. Therefore, it is important to coordinate approaches and 
schedules with other programs involved. The objective should be to make the 
process as simple and consistent as possible for subapplicants and homeowners. 

2.3.13.3 Post-award Requirements

2.3.13.3.1 Project Implementation

Before the subgrantee acquires a property, it will ensure the property is not 
contaminated with hazardous materials, confirm a clear title, and determine the 
appropriate mitigation offer for the property and any additional payments 
associated with the property acquisition. After acquiring the property, the 
subgrantee must take steps to convert and maintain the property permanently as 
open space.

2.3.13.3.1.1 Hazardous Materials

The subgrantee shall take steps to ensure that a property with past or present 
commercial or industrial use, or that is adjacent to such property, or that is 
suspected of having hazardous contaminants may be present at the site, is not 
contaminated at the time of acquisition. It shall ensure that the property owner 
provides information identifying what, if any, hazardous materials have been 
deposited or stored on the property (this does not include household hazardous 
wastes). The subgrantee shall require the owner to remove hazardous materials 
and containers. The owner must provide certification from the appropriate State 
agency that the site is clean before the subgrantee can purchase any interest in 
the property. Any cleanup costs associated with obtaining clean-site 
certification, and any costs associated with hazardous materials are not 
eligible project costs. The seller must also agree to indemnify the 
State/Grantee, FEMA, and the subgrantee for any liability arising from previous 
contamination of the property.

If the State/Grantee and FEMA determine that a Phase I environmental site 
assessment is necessary, the subgrantee, FEMA, or the State/Grantee may conduct 
one prior to property acquisition. The cost of Phase III environmental site 
assessment remediation plans, cleanup, and certification of the property are not 
eligible mitigation grant project costs.

2.3.13.3.1.2 Clear Title

The subgrantee shall conduct a title search for each property it plans to 
acquire. The purpose of the title search is to ensure that the owner is the sole 
and actual titleholder to the property, or identify other persons with a 
property interest, and to ensure that the title is clear. This means that there 
are no mortgages or liens outstanding at the time of sale. In addition, there 
may not be incompatible easements or other encumbrances to the property that 
would make it either ineligible for acquisition or noncompliant with open space 
land use restrictions. 

Other requirements in particular include:

A title insurance policy demonstrating that clear (fee) title conveys must be 
obtained for each approved property that will be acquired;

A physical site inspection for each property verifying no physical encumbrances 
to the property (where appropriate this may require a site survey to clearly 
establish property boundaries);

Title to the property must transfer by a warranty deed in all jurisdictions that 
recognize warranty deeds;

All incompatible easements or encumbrances must be extinguished;

The subgrantee shall take possession at settlement;

The subgrantee must record the deed at the same time as and along with the 
programmatic deed restrictions (see Section 2.3.13.2.3.3, Deed Restriction 
Language);

The deed transferring title to the property and the programmatic deed 
restrictions will be recorded according to State law and within 14 days after 
settlement; and

All property transfers shall be consistent with 44 CFR Part 80 and this 
Guidance.

2.3.13.3.1.3 Statement of Voluntary Participation

The Statement of Voluntary Participation documents more formally the Notice of 
Voluntary Interest provided previously in Section 2.3.13.2.3.4 (Documentation of 
Voluntary Interest), as well as documenting information related to the purchase 
offer, as identified in Section 2.3.13. 3.1.5 (Purchase Offer), following. The 
Statement of Voluntary Participation is available on FEMAs Web site: 
http://www.fema.gov/government/grant/vol_participation.shtm. The subgrantee 
shall provide to FEMA a signed copy of the Statement of Voluntary Participation 
for each property after award.

2.3.13.3.1.4 Mitigation Offer

The mitigation offer for acquisition and relocation projects is based on the 
property value (purchase offer information) and applicable additions and 
deductions. Deductions to the purchase offer may include DOB deductions, and 
additions may include any supplemental housing or insurance incentive payments. 
For the SRL program, see Section 3.4.5 (Mitigation Offer Process).

2.3.13.3.1.5 Purchase Offer

The purchase offer is the initial value assigned to the property as determined 
using the approved methodology, which is later adjusted by applicable additions 
and deductions, resulting in a final mitigation offer amount to a property 
owner. In all cases, the subgrantee must ensure that all property owners are 
treated fairly and are offered an equitable package of benefits. The subgrantee 
(using a Statement of Voluntary Participation) shall inform each property owner 
in writing of the market value (pre-event or current) of the property, and the 
method used to determine that value.

If several different entities or programs are acquiring property in the same 
area, property owners may find it confusing if different offers are made to area 
owners at different times. To avoid any negotiation difficulties or confusion, 
the subgrantee should coordinate the release of property valuation information 
and purchase offers to property owners for the various programs. The subgrantee 
may wish to set a time limit with the property owner for the validity of a 
purchase offer. The subgrantee must provide an appeal or reconsideration process 
for property owners who dispute the amount of the purchase offer property 
valuation.

Purchase offers made under the SRL program have different requirements than 
those made under FEMAs other mitigation grant programs and, in addition to the 
following requirements, must comply with the offer requirements identified in 
the SRL FY guidance. The purchase offer of an SRL property must be the greatest 
of the following amounts:

The current market value of the property or the pre-event market value of the 
property;

The original purchase amount paid by the property owner holding the flood 
insurance policy as demonstrated by property closing documents; and

The outstanding amount of any loan to the property owner, secured by a recorded 
interest in the property at the time of the purchase offer.

When determining value based on the outstanding amount of loans to the property 
owner for the SRL program, the loans must be secured by a recorded interest in 
the property at the time of the purchase offer and the value shall not include 
home equity loans or lines of credit secured after the property owner signs the 
Pre-Award Consultation Agreement. Any loans secured after the property owner 
signs the Pre-Award Consultation Agreement are not eligible.

2.3.13.3.1.5.1 Property Valuation

For each property identified for acquisition, the subgrantee shall establish and 
document a property value based on market value. Market value is generally 
defined as:

The amount in cash, or on terms reasonably equivalent to cash, for which in all 
probability the property would have sold on the effective date of the valuation, 
after a reasonable exposure time on the open competitive market, from a willing 
and reasonably knowledgeable seller to a willing and reasonably knowledgeable 
buyer, with neither acting under any compulsion to buy or sell, giving due 
consideration to all available economic uses of the property at the time of the 
valuation.

Current market value reflects the property value at the time of the final 
mitigation offer (see Section 3.4.5, Mitigation Offer Process, for more 
information). Pre-event market value is defined as the market value of the 
property immediately before the relevant event affecting the property. The 
relevant event for assistance under the HMGP is the major disaster under which 
funds are available. For the PDM program, pre-event value is the value before 
the most recent major disaster, however if the project is occurring separate 
from or more than 12 months after a disaster event, the current market value may 
be more appropriate. For the FMA, RFC, and SRL programs the pre-event market 
value is defined as the value of the property immediately before the most recent 
flood event resulting in a NFIP claim of at least $5,000.

The benefit of payment of pre-event market value is only available to an owner 
who owned the property during the event and is a U.S. National or qualified 
alien (see below for more information). If the current property owner purchased 
the disaster damaged property after the major relevant event, or is not a U.S. 
National or qualified alien, then the subgrantee shall not offer the owner more 
than the current market value. 

Typically, acquisition projects require the valuation of the property (land and 
structure as a whole). In situations where an eligible entity already owns the 
property but wants to deed restrict it, valuation will be for the structure and 
development rights instead of for the land. Relocation projects require the 
valuation of land only. 

Valuation Methodologies

The property value, either current or pre-event, must be derived from a 
methodology that results in a reasonable determination of market value. The 
subgrantee must coordinate with the Grantee to determine the methodology that 
will be used for property valuation determinations. This methodology must be 
applied consistently throughout the project area, using the same methodology for 
all properties to be acquired. 

When practicable, the appraisal methodology shall be used. Appraisals must be 
conducted by an appraiser in accordance with the Uniform Standards of 
Professional Appraisal Practice (USPAP). The appraiser must comply with relevant 
State laws and requirements, and shall have the appropriate certification, 
qualifications, and competencies based on the type of property being appraised.

When determining value for a large number of structures, the subgrantee may 
choose to perform appraisals to establish a statistical sampling of property 
values, and develop an adjustment factor to apply to tax assessed values so that 
they reasonably reflect each propertys market value.

2.3.13.3.1.5.2 Purchase Offer and Nationality

A property owner who is not a National of the United States or a qualified alien 
is not eligible for a pre-event market value determination of property value. 
The property value must be based on current market value.

The term National of the United States is defined at 8 U.S.C.  1101 and means 
a citizen of the United States or a person who is not a citizen but who owes 
permanent allegiance to the United States. The term qualified alien is defined 
at 8 U.S.C.  1641 and means an alien who, at the time the alien applies for, 
receives, or attempts to receive a Federal public benefit, is:

An alien who is lawfully admitted for permanent residence under the Immigration 
and Nationality Act [8 U.S.C.  1101 et seq.];

An alien who is granted asylum under Section 208 of such Act [8 U.S.C.  1158];

A refugee who is admitted to the United States under Section 207 of such Act [8 
U.S.C.  1157];

An alien who is paroled into the United States under Section 212(d)(5) of such 
Act [8 U.S.C.  1182 (d)(5)] for a period of at least 1 year;

An alien whose deportation is being withheld under Section 243(h) of such Act [8 
U.S.C.  1253] (as in effect immediately before the effective date of Section 
307 of division C of Public Law 104208) or Section 241(b)(3) of such Act [8 
U.S.C.  1231 (b)(3)] (as amended by Section 305(a) of division C of Public Law 
104208);

An alien who is granted conditional entry pursuant to Section 203(a)(7) of such 
Act [8 U.S.C.  1153 (a)(7)] as in effect prior to April 1, 1980; or

An alien who is a Cuban and Haitian entrant (as defined in Section 501(e) of the 
Refugee Education Assistance Act of 1980).

Subgrantees will ask all acquisition project participants (property owners) to 
certify that they are either a National of the United States or a qualified 
alien. Subgrantees will offer participants who refuse to certify, or who are not 
Nationals of the United States or qualified aliens, no more than the appraised 
current market value for their property. Participants who refuse to certify, or 
are not Nationals of the United States or qualified aliens, also may not receive 
supplemental housing payments as described in Section 2.3.13.3.1.7 (Additions to 
Purchase Offer).

Subgrantees may wish to use FEMA Form 90-69B to obtain certification from 
participating property owners. At the time of certification, the subgrantee will 
ask the property owner to show a form of identification (any identification 
displaying the signers name will suffice). If the property owner applied for 
FEMA disaster assistance, a Form 90-69B will already be on file at FEMA and the 
subgrantee will instead request verification from FEMA through the State/Grantee 
that a certification is on file. 

2.3.13.3.1.6 Deductions from Purchase Offer

Duplication of Benefits

FEMA mitigation grant program funding is supplemental to other funding sources 
and must be reduced by amounts reasonably available (even if not sought or 
received) from other sources to address the same purpose or loss. Insurance 
payments, FEMA housing needs assistance, property-related legal claims and/or 
funds from any other sources that are available for the purpose of making 
repairs to or replacing a structure, or other compensation for the value of the 
real property, are considered duplicated amounts. In this case, the eligible 
project costs are reduced by the duplicative amount. This has the effect of 
reducing both the Federal and non-Federal shares of the project, and ensures 
that mitigation grant funds do not duplicate benefits available to owners and 
tenants from another source for the same purpose. 

The Grantees, subgrantees and project participants (including property owners 
and tenants) must take reasonable steps to recover all such amounts. Amounts 
that are reasonably available to the individual or entity shall be treated as 
benefits available for the same purpose, even if he/she/it did not seek them. 
Duplications can occur at any time in such cases, and if amounts for these 
purposes are received subsequent to the property settlement they must be 
reimbursed to FEMA.

Some examples when DOB occurs include the following:

If the subgrantee decides to offer pre-event market value, duplication may occur 
if homeowners have insurance, loans, repair grants, or other assistance 
available to them to help address the damage to the structure. This is because 
paying full pre-event market value also compensates the owner for the loss of 
value that occurs due to damage. The subgrantee must make the deductions from 
the established pre-event market value purchase offer before making a final 
mitigation offer to the property owner;

Duplication may occur when insurance benefits are available to the property 
owner under an existing policy, whether they submitted a claim or not. (If 
insurance paid a claim that included reimbursement for the property owners own 
labor for clean up, this is not a DOB and it should not be deducted);

Duplication may occur where legal claims are appropriate or legal obligations 
arise (e.g., to comply with a law or court order) that may provide a benefit to 
the property owner on the basis of that property. Parties involved in pending 
legal disputes must take reasonable steps to recover benefits available to them; 
and

Duplications may also occur when relocated tenants receive relocation assistance 
and rental assistance if they have received payments for the same purposes as 
part of the disaster assistance provided by FEMA and other agencies, or payments 
from any other source, as described in Section 2.3.13.3.1.8 (Tenants). Any 
acquisition-related assistance provided to tenants must be reduced accordingly. 
This also affects the total eligible costs allowable for the project (Tenant-
related DOB deductions do not affect amounts available to the property owner). 

For property valuations based on pre-event market value, the following 
procedures assist in preventing mitigation grant funds from duplicating benefits 
available from other sources:

For property owners, the subgrantee establishes the purchase offer property 
value as of a certain date;

The subgrantee provides the State/Grantee with a list of property owners who are 
participating in the property acquisition project, and with a list of tenants 
that will potentially be affected by acquisition of the property they occupy;

The State/Grantee and FEMA inform the subgrantee of the amount of repair or 
replacement assistance available to each property owner, and rental or 
relocation assistance available to tenants from FEMA and the State. FEMA shall 
provide to the State/Grantee and subgrantee NFIP coverage information, including 
the amount paid on a claim and the amount of coverage available;

The subgrantee shall coordinate with property owners who shall disclose all 
potential amounts available to them for the same purpose, as described above, 
including repair or replacement assistance received, all insurance benefits 
available to them under an existing policy (whether they submitted a claim or 
not), and any potential recovery based on litigation or other legal obligations. 
The property owner must take reasonable steps to recover such amounts. Amounts 
that are reasonably available to the property owner shall be treated as benefits 
available for the same purpose, even if the property owner did not seek them. 
The subgrantee shall coordinate with tenants who shall disclose any amounts 
received from rental or relocation assistance;

Property owners who have a U.S. Small Business Administration loan are required 
to repay the loan or roll it over to a new property at closing;

The subgrantee shall identify any other potential sources of benefits to the 
subgrantee, property owner, or tenant; and

The subgrantee shall reduce the purchase offer by the amount of any duplicating 
benefits. Deductions are not taken, however, for amounts the owner can verify 
with receipts that were expended on repairs or cleanup (Subgrantees may not 
credit homeowners for the homeowners own labor hours for repair work).

2.3.13.3.1.7 Additions to Purchase Offer

Supplemental Housing Payments

If a purchase offer for a property is less than the cost for the property owner 
to purchase a comparable replacement dwelling in a non-hazard-prone site in the 
same community, the State/Grantee and subgrantee may choose to make available a 
supplemental payment of up to $22,500 for the property owner to apply to the 
difference. Subgrantees should consider the cost of relocating to a permanent 
residence that is of comparable value and that is functionally equivalent. The 
State/Grantee and subgrantee must demonstrate that all of the following 
circumstances exist:

Decent, safe, and sanitary housing of comparable size and capacity is not 
available in non-hazard-prone sites within the community at the anticipated 
acquisition price of the property being vacated; and/or

The project would otherwise have a disproportionately high adverse effect on low 
income or minority populations because project participants within those 
populations would not be able to secure comparable decent, safe, and sanitary 
housing; and

Funds cannot be secured from other more appropriate sources such as housing 
agencies or voluntary groups.

For SRL only: Property owners that receive additional amounts of SRL program 
funds to cover the original purchase price of the property, or to cover second 
mortgages or other loans, are generally not eligible to receive supplemental 
housing payments.

Incentive Payment for Flood Insured Properties 

For HMGP-funded acquisition/structure removal projects, the State/Grantee has 
the option to allow subgrantees to provide a credit to property owners with 
flood insurance. In this case, the subgrantee would provide an incentive payment 
in an amount equal to up to 5 years of flood insurance premiums actually paid by 
the current property owner for a NFIP Policy for structure coverage.

2.3.13.3.1.8 Tenants

Although the property owner must voluntarily agree to participate in the open 
space project, participation is not voluntary for residential and business 
tenants and owners of mobile homes who rent homepads (homepad tenants) and who 
must relocate as a result of acquisition of their housing. Therefore, these 
tenants are entitled to assistance as required by the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970, as amended, 
(URA). The Act is implemented at 49 CFR Part 24. (Owners participating in FEMA-
funded acquisition projects are not entitled to relocation benefits because the 
voluntary program meets URA exceptions.) URA relocation benefits to displaced 
tenants include moving expenses, replacement housing rental payments, and 
relocation assistance advisory services. This includes owners of manufactured 
homes who lease the pad site.

The amount of assistance the subgrantee must pay to the tenant is described at 
49 CFR Part 24, Subpart E. An eligible displaced tenant is entitled to:

Reasonable out-of-pocket (or fixed schedule) moving expenses; and

Compensation for a reasonable increase in rent and utility costs incurred in 
connection with the relocation in certain circumstances.

Relocation assistance payments for tenants are intended to ensure that these 
individuals are able to relocate to decent, safe, and sanitary comparable 
replacement dwellings outside the floodplain or hazard area. If a tenant chooses 
to purchase a replacement dwelling, the tenant may apply the amount of rental 
assistance to which he or she would be entitled towards the down payment. 
Similarly, if a mobile home owner who rents a homepad chooses to purchase a 
replacement pad or lot, the mobile home owner may apply the amount of rental 
assistance to which he or she would be entitled towards the down payment.

However, mitigation grant funding is supplemental to other primary funding 
sources and must be reduced by amounts reasonably available (even if not sought 
or received) from other sources, such as insurance and other funds to address 
the same purpose or loss. A DOB may occur when relocated tenants receive 
relocation assistance and rental assistance if they have received payments for 
the same purposes as part of the disaster assistance provided by FEMA, the 
State/Grantee, and/or other sources. A DOB verification shall focus on the 
assistance provided through FEMAs disaster assistance programs, including 
temporary housing and rental assistance and/or funds from any other sources. The 
State/Grantee and FEMA shall inform the subgrantee of the amount and source of 
any such assistance provided to tenants who may be displaced by an acquisition 
project. Any acquisition-related assistance provided to tenants must be reduced 
accordingly. This also affects the total eligible costs allowable for the 
project. (Tenant-related DOB deductions do not affect amounts available to the 
property owner.) For more information on DOB see Section 2.3.13.3.1.6 
(Deductions from Purchase Offer).

A person who is an alien not lawfully present in the United States is not 
eligible to receive URA relocation benefits or relocation advisory services. 
FEMA may approve exceptions if unusual hardship to the aliens spouse, parent, 
or child who is a U.S. citizen or an alien admitted for permanent residence, 
would otherwise result. Subgrantees will ask tenants who are potential 
recipients of URA assistance to certify that they are a U.S. citizen or are 
lawfully present in the United States. Subgrantees will not provide URA 
assistance to participants who refuse to certify or who are not a U.S. citizen 
or lawfully present.

Please refer to 49 CFR Part 24 for detailed instructions regarding 
implementation of URA requirements. Subgrantees shall closely coordinate with 
the State/Grantee and FEMA when implementing URA requirements. The State DOT is 
often a good resource in determining how to calculate the appropriate URA 
payment, since the Federal Highway Administration (FHWA) oversees applicability 
of the URA.

2.3.13.3.1.8.1 Rental Payments

A tenant displaced from a dwelling due to a federally funded acquisition project 
is entitled to a rental increase payment if:

That tenant rents or purchases and occupies a decent, safe, and sanitary 
replacement dwelling within 1 year after the date he or she moves out of the 
original dwelling; and

The tenant occupied the displacement dwelling for the 90 days preceding the 
initiation of negotiations for acquisition of the property. The initiation of 
negotiations is defined as the first formal indication that the subgrantee wants 
to purchase a particular property. Any tenant who occupied the dwelling prior to 
a disaster event is usually eligible. The exception to this is if the project 
negotiations are unrelated to a disaster event or begin so long after the event 
that the event is no longer a relevant factor. If the dwelling is re-inhabited 
after the event, former tenants are generally not eligible (generally, a signed 
lease is preferable to prove tenancy; however, other documentation such as 
utility bills may be used to prove tenancy if a signed lease is not available 
due to the disaster event).

Compensation for rent increase is 42 times the amount that is obtained by 
subtracting the base monthly rent for the displacement dwelling from the 
monthly rent and average monthly cost of utilities for a comparable replacement 
dwelling, or the decent, safe, and sanitary replacement dwelling now occupied by 
the displaced person.

The base monthly rent for the displacement dwelling is the lesser of the 
average monthly cost for utilities plus the rent at the displacement dwelling as 
determined by FEMA, or 30 percent of the tenants average gross household 
income. (The URA regulations define tenant as a person who has the temporary 
use and occupancy of real property owned by another.)

Subgrantees may exceed this limit in extraordinary circumstances, if necessary 
to ensure that a displaced tenant will be able to obtain and retain a decent, 
safe, and sanitary (as defined by the URA regulations at 49 CFR  24.2 (a) (8)) 
comparable unit outside of the high-hazard area. A rental assistance payment 
may, at the subgrantees discretion, be disbursed in either a lump sum or in 
installments. However, if any HUD programs are providing partial funding for the 
project, verify those program requirements to ensure proper coordination with 
mitigation grant program requirements. The rental increase payment may not 
exceed a total of $5,250. 

2.3.13.3.1.8.2 Homepad Tenants

Mobile home owners who lease a homepad and who must relocate to a new homepad as 
the result of acquisition of their pre-disaster homepad are also entitled to URA 
relocation benefits and replacement housing payments. Payments to mobile home 
owners shall not duplicate insurance payments or payments made by other Federal, 
State, local or voluntary agencies. Complex situations involving FEMA mobile 
homes that have been donated to a State or local government and then sold to the 
mobile home owner should be directed to the FEMA Regional Office for eligibility 
determination and a calculation of benefits.

Displaced mobile home owners who rent their homepads are entitled to assistance 
as detailed below. However, in only rare cases may the combination of the two 
types of URA assistance exceed $22,500.

Homepad Rental Assistance

The displaced mobile home owner and homepad renter is entitled to compensation 
for rental and utility increases resulting from renting a comparable homepad and 
moving expenses as detailed in the section for tenants. Compensation for homepad 
rent increase is 42 times the amount that is obtained by subtracting the base 
monthly rent for the displacement homepad from the monthly rent and average 
monthly cost of utilities for a comparable replacement homepad. The rental 
increase payment may not exceed a total of $5,250. Displaced mobile homeowners 
are also entitled to one of the following:

Replacement Housing Assistance: For URA purposes the displaced mobile home owner 
is considered to be involuntarily displaced from his or her residence due to the 
homepad owner (landlord) selling that property. Therefore, if the mobile home is 
purchased, the displaced mobile home owner is also entitled to replacement 
housing assistance to compensate for his or her need to find replacement 
housing. Compensation for mobile home replacement is equivalent to the amount 
that is obtained by subtracting the value of the displacement mobile home from 
the cost of a new replacement mobile home. In acquisition projects where the 
mobile homes are intact and are being relocated to new homepads, there is no 
difference. The replacement housing payment may not exceed a total of $22,500. 
If the owner is also being compensated for homepad rental increase, then the 
combination of rental and relocation assistance may not exceed a total of 
$22,500; or

Costs to Move a Manufactured Home: If the manufactured homeowner wishes to move 
their existing home to a new site, rather than sell it, those moving costs are 
eligible. The reasonable cost of disassembling, moving, and reassembling any 
attached appurtenances, such as porches, decks, skirting and awnings, anchoring 
the unit, and utility hook-up charges are included. 

2.3.13.3.1.8.3 Tenant Business

Tenant businesses that are involuntarily relocated due to a FEMA acquisition 
project are also entitled to URA benefits. Assistance provided to a tenant 
business cannot duplicate payments from insurance or any other source. Thus, 
Small Business Administration (SBA) loans and other types of financial 
assistance received after the disaster would have to be factored out of benefits 
received under the URA. The State/Grantee and subgrantees should seek the 
assistance of the FEMA Regional Office in determining benefits for tenant 
businesses. Also, the State DOT can be a good resource for determining benefits 
for tenants, since the FHWA oversees applicability of the URA.

2.3.13.3.1.9 Increased Cost of Compliance and Cost Share

NFIP Insurance coverage provides for a claim payment to pay qualifying owners 
costs to elevate, demolish, or relocate residential structures (nonresidential 
structures may also be floodproofed) after a flood. The maximum amount of ICC 
coverage available is $30,000. Because these are also eligible mitigation grant 
program costs, the homeowner cannot receive grant funds for the same costs. 
However, if the insurance claim does not pay the total mitigation cost, 
mitigation grant funds can be used to pay the remainder. The ICC insurance claim 
payment would then be counted as non-Federal cost share. 

ICC claims can only be used for costs approved as eligible for ICC benefits; 
these can then be applied to the grant program non-Federal match requirement. 
Thus, ICC cant pay for property acquisition, but can pay for demolition or 
structure relocation. Additional information regarding the use of ICC funds can 
be found in Section 2.1.6.2 (Federal Funds Allowed to be used as Non-Federal 
Cost Share). 

2.3.13.3.1.10 Relocation and Removal of Existing Buildings

If the structure on the property is to be relocated, the relocated structure 
must be placed on a site located outside of the SFHA, outside of any regulatory 
erosion zones, and in conformance with any other applicable State or local land 
use regulations. Existing buildings must be removed and/or disposed of in 
accordance with applicable laws within 90 days of closing and settlement of the 
property acquisition transaction. If numerous properties are purchased on 
different dates, the State/Grantee and subgrantee are still responsible for 
structure removal within 90 days of settlement for each individual property. The 
FEMA Regional Administrator can only grant an exception to this requirement in 
accordance with 44 CFR  80.17 (d).

Any relocated structures will be placed on a site outside of SFHAs or any other 
identified hazard areas, and at a distance at least 60 times the average annual 
erosion rate measured from an appropriate erosion reference feature. The owner 
shall ensure the building is brought into compliance with all applicable 
Federal, State, and local laws and regulations.

In certain disaster-related instances, the demolition and debris removal related 
to acquired structures may be eligible for reimbursement under FEMAs Public 
Assistance program if the structures represent a health and safety hazard as a 
result of the disaster. States/Grantees and subgrantees should coordinate with 
the appropriate FEMA Regional Office for more information and to determine 
whether these costs are eligible under that program. If the costs of demolition 
do not qualify for Public Assistance program funding, they are eligible project 
costs under the relevant mitigation grant program. If any parts of the structure 
are sold for salvage value, this amount shall reduce the total cost of the 
project before cost shares are calculated.

2.3.13.3.1.11 Conversion to Open Space

Subgrantees must apply specific deed restriction language to all acquired 
properties to ensure the property will be maintained in perpetuity as open space 
and consistent with natural floodplain functions, as agreed by accepting FEMA 
mitigation grant funding. This is done for each property by recording the open 
space and land use restriction, consistent with FEMA model deed language found 
at http://www.fema.gov/government/grant/resources/pre-award.shtm. Any 
modifications to the model deed restriction language can only be made with prior 
approval from FEMAs Office of Chief Counsel through the appropriate FEMA 
Regional Office.

2.3.13.3.2 Land Use and Oversight

2.3.13.3.2.1 Future Federal Benefits

After settlement of the property acquisition transaction, no disaster assistance 
for any purpose from any Federal entity may be sought or provided with respect 
to the property, and FEMA will not distribute flood insurance benefits for that 
property for claims related to damage occurring after the date of settlement in 
accordance with 44 CFR Part 80 requirements. 

Also, crops for which insurance is not available will not be eligible for any 
disaster assistance and are grown at the farmers risk. Payment through the Non-
Insured Crop Disaster Assistance Program (NAP), 7 U.S.C.  7333, for damage to 
crops for which insurance is not available, is considered to be disaster 
assistance, and as such will not be available to owners of open space-
restricted land. However, benefits obtained through crop insurance programs 
offered under the Federal Crop Insurance Act, as amended, 7 U.S.C.  1501 et 
seq., are not considered disaster assistance, and will be available to owners 
of open space-restricted land.

2.3.13.3.2.2 Open Space Requirements/Land Use

After settlement of the property acquisition transaction, the property must 
permanently be maintained for open space purposes and consistent with natural 
floodplain functions.

Allowable land uses generally may include parks for outdoor recreational 
activities, wetlands management, nature reserves, cultivation, grazing, camping 
(except where adequate warning time is not available to allow for evacuation), 
unpaved surfaces, and other uses FEMA determines compatible with the grant and 
deed restrictions, including more specific listings provided below.

Allowable land uses generally do not include walled buildings, flood control 
structures (such as levees, dikes, or floodwalls), paved surfaces, bridges, 
cemeteries, actions that pose health, safety or environmental risk in the 
floodplain, above- or below-ground pumping stations or storage tanks, placement 
of fill materials, or other uses that obstruct the natural and beneficial use of 
the floodplain (see below for additional detail regarding land use).

The list below is a guide to open space use that addresses typical situations; 
however, the subgrantee and State/Grantee should review every situation using 
the regulations, open space intent, and floodplain management principles. The 
local floodplain administrator should review all proposed use of acquired 
floodplain land. The State/Grantee and subgrantee, in coordination with the 
appropriate FEMA Regional Office, shall determine whether a proposed use is 
allowable, consistent with the deed restrictions, grant agreement, this 
Guidance, and floodplain management requirements.

Allowable Uses Include:

Vegetative site stabilization, agricultural cultivation, and grazing;

Public picnic shelters, pavilions, and gazebos, with associated foundations, 
provided that the structure does not contain walls;

Public restrooms are the only walled and roofed buildings that are allowed;

Small-scale recreational courts, ball fields, golf courses, and bike and walking 
paths;

Camping, except where adequate warning time is not available to allow 
evacuation;

Installation of signs when designed not to trap debris;

Unimproved, unpaved parking consistent with open space uses;

Unpaved access roads, driveways, camping pads limited to those necessary to 
serve the acceptable uses on acquired property. Existing paved roads can be 
reused for these purposes;

Small boat ramps, docks, and piers to serve a public recreational use;

Drainage facilities intended to service onsite needs;

Construction activities, excavation, and other minor water control structures 
necessary to create areas for water detention/retention including wetlands 
restoration or restoration of natural floodplain floodwater storage functions;

Sewer, water, and power to serve the allowable uses. Sewer, water, and power 
line crossings, where there is no floodwater obstruction created and there are 
no other readily available locations for these systems; and

Simple structures used exclusively for agricultural purposes in connection with 
the production, harvesting, storage, drying, or raising of certain agricultural 
commodities, to include livestock, such as a pole-frame building (any such 
structure cannot be of a nature that would make it eligible for insurance under 
the NFIP), and steel grain bins and steel-frame corn cribs.

Uses Generally Not Allowed on Acquired Open Space Land: 

The construction of flood damage reduction levees, dikes, berms, or floodwalls;

All walled buildings or manufactured homes, except public restrooms. Reuse of 
pre-existing structures, unless all walls are removed;

Fences and all other obstructions in the floodway. Fences outside of the 
floodway must be designed to minimize the trapping of debris;

Storage of inventory supporting a commercial operation or governmental facility, 
including wheeled vehicles or movable equipment;

Cemeteries, landfills, storage of any hazardous or toxic materials, or other 
uses that are considered environmentally contaminating, dangerous, or a safety 
hazard;

Pumping and switching stations;

Above- or below-ground storage tanks;

Paved roads, highways, bridges, and paved parking. Paved parking includes 
asphalt, concrete, oil treated soil, or other material that inhibits floodplain 
functions;

Placement of fill, except where necessary to avoid impacting onsite 
archeological resources;

Installation of septic systems or reuse of pre-existing septic systems, except 
to service a permissible restroom; and

Any uses determined by the State/Grantee, FEMA, or FEMA Regional Administrator 
as inconsistent with the regulations, this Guidance, or deed restrictions.

Reuse of existing paved surfaces for recreational uses on the acquired property 
consistent with allowable uses is generally acceptable; however paved surfaces 
beyond those directly required for such uses should be removed. Communities 
shall use unpaved surfaces allowing for natural floodplain functions where 
feasible for allowable uses, particularly trails. Examples include grass, hard-
packed earth, and graded gravel.

Communities may creatively salvage pre-existing structures on the acquired 
property. In some cases, the complete demolition of a structure may not be 
necessary; it may be possible to convert a closed-in structure with walls, such 
as a house, into an open picnic pavilion with a concrete slab floor and posts 
supporting the roof.

2.3.13.3.2.3 Subsequent Transfer of a Property Interest

Post-grant award, the subgrantee may convey a property interest only with the 
prior approval of the appropriate FEMA Regional Administrator and only to 
certain entities in accordance with 44 CFR  80.19 (b) and this Guidance.

After acquiring the property interest, the subgrantee, including successors in 
interest, shall convey any interest in the property only if the appropriate FEMA 
Regional Administrator, through the State/Grantee, gives prior written approval 
of the transferee. The transferee must be another public entity or a qualified 
conservation organization. A qualified conservation organization means an 
organization with a conservation purpose where the organization has maintained 
that status for at least 2 years prior to the opening of the grant application 
period that resulted in the transfer of the property interest to the subgrantee, 
pursuant to Section 170(h)(3) and (4) of the Internal Revenue Code of 1954, as 
amended, and the applicable implementing regulations. The transferee must 
document its status as a qualified conservation organization, where applicable. 
Any request to convey an interest in the property must include a signed 
statement from the proposed transferee that it acknowledges and agrees to be 
bound by the terms of the original mitigation grant/subgrant conveyance, 44 CFR 
Part 80, and this Guidance, and must reference and incorporate the original deed 
restrictions providing notice of the conditions in this section. The statement 
must also incorporate a provision for the property interest to revert to the 
subgrantee or Grantee in the event that the transferee ceases to exist or loses 
its eligible status as defined under this section. See 44 CFR  80.19 for more 
information. 

The subgrantee may convey an easement or lease to a private individual or entity 
for purposes compatible with the uses described in 44 CFR  80.19 and this 
Guidance, with prior approval of the appropriate FEMA Regional Administrator, 
and as long as the conveyance does not include authority to control and enforce 
the terms and conditions identified above. The FEMA Regional Administrator may 
choose to consult with the FEMA Office of Chief Counsel in reviewing documents 
proposed to convey an interest in the property. Any lease or easement must be 
for uses compatible with open space purposes and are clearly subject to the land 
use and other restrictions of the property by reference and/or incorporation of 
the recorded deed restriction language.

2.3.13.3.2.4 Monitoring and Reporting and Inspection

The State/Grantee will work with subgrantees to ensure that the property is 
maintained in accordance with land use restrictions. The State/Grantee and 
subgrantees should jointly monitor and inspect acquired properties every 3 years 
to ensure that the inspected parcels continue to be used for open space 
purposes.

Every 3 years, the subgrantee, the State/Grantee, and FEMA must coordinate to 
ensure the subgrantee submits documentation to the appropriate FEMA Regional 
Administrator certifying that the subgrantee has inspected the subject property 
within the month preceding the report, and that the property continues to be 
maintained consistent with the provisions of the grant/subgrant. If the property 
subsequently transfers to an allowable transferee, the subgrantee, the 
State/Grantee, and FEMA will coordinate with that entity to submit the 
information.

The State/Grantee, FEMA and the subgrantee have the right to enter the parcel, 
with notice, in order to inspect the property to ensure compliance with land use 
restrictions. Subgrantees may identify the open space nature of the property on 
local tax maps to assist with monitoring.

2.3.13.3.2.5 Enforcement

If the required monitoring (or other information) identifies that the subject 
property is not being maintained according to the terms of the grant, the 
subgrantee, State/Grantee, and FEMA are responsible for taking measures to bring 
the property back into compliance.

In the event a property is not maintained according to the identified terms, the 
State/Grantee shall notify the subgrantee (which includes successors in 
interest) that they have 60 days to correct the violation. If the subgrantee 
fails to demonstrate a good faith effort within the terms of the grant agreement 
within 60 days, the State/Grantee shall enforce the terms of the grant agreement 
by taking any measures it deems appropriate, including bringing an action of law 
or equity in a court of competent jurisdiction. If the State/Grantee fails to 
bring the property into compliance, then FEMA may enforce the terms of the grant 
agreement by taking any measures it deems appropriate including:

Withholding FEMA mitigation awards or assistance from the State/Grantee, 
subgrantee, and current holder of the property interest (if different) pending 
corrective action;

Requiring the transfer of title; and/or

Bringing an action of law or equity in a court of competent jurisdiction against 
the State/Grantee, subgrantee, and/or their respective successors and assigns.

FEMA also reserves the right to transfer the property title and/or easement to a 
qualified third party for future maintenance.

2.3.13.4 Post-Grant Requirements

2.3.13.4.1 Closeout Requirements

At completion of the grant/subgrant activity, FEMA and the State/Grantee shall 
identify that all required subgrant activities have been accomplished (in 
accordance with all programmatic guidance and proper grants management practices 
and  80.21), that all properties identified in the application have been 
acquired, and that the model deed restriction language was recorded with each 
corresponding deed. The subgrantee shall provide to FEMA through the 
State/Grantee the following property reporting requirement information:

A photograph of the property site after project implementation;

A copy of the recorded deed and attached deed restrictions for each property;

Latitude and longitude coordinates of the property;

Signed Statements of Voluntary Participation from the owner of each property 
identified in the subgrant SOW. The Statement of Voluntary Participation 
documents more formally the Notice of Voluntary Interest provided in the 
subapplication, as well as documenting required property valuation notices. A 
Model Statement of Voluntary Participation is available on FEMAs Web site at 
http://www.fema.gov/government/grant/vol_participation.shtm or from the 
appropriate FEMA Regional Office; and

For each property identified on FEMAs Repetitive Loss list, a completed FEMA 
form AW-501, documenting the completion of mitigation on the repetitive loss 
property. The form is available on FEMAs Web site at 
http://www.fema.gov/government/grant/resources/aw501ins.shtm.