§ 9.11 Mitigation. ( a ) *Purpose.* This section expands upon the directives set out in § 9.6 of this part and sets out the mitigative actions required if the preliminary determination is made to carry out an action that affects or is in a floodplain or wetland.
( b ) *General provisions.* ( 1 ) The Agency shall design or modify its actions so as to minimize harm to or within the floodplain;
( 2 ) The Agency shall minimize the destruction, loss or degradation of wetlands;
( 3 ) The Agency shall restore and preserve natural and beneficial floodplain values; and
( 4 ) The Agency shall preserve and enhance natural and beneficial wetland values.
( c ) *Minimization provisions.* The Agency shall minimize: ( 1 ) Potential harm to lives and the investment from flooding based on flood elevations as established by § 9.7(c);
( 2 ) Potential adverse impacts the action may have on others; and
( 3 ) Potential adverse impact the action may have on floodplain and wetland values.
( d ) *Minimization Standards.* The Agency shall apply, at a minimum, the following standards to its actions to comply with the requirements of paragraphs (b) and (c) of this section (except as provided in § 9.5(c), (d), and (g) regarding categories of partial or total exclusion). Any Agency action to which the following specific requirements do not apply, shall nevertheless be subject to the full 8-step process (§ 9.6) including the general requirement to minimize harm to and within floodplains: ( 1 ) There shall be no new construction or substantial improvement in a floodway and no new construction in a coastal high hazard area, except for: ( i ) A functionally dependent use; or
( ii ) A structure or facility which facilitates an open space use.
( 2 ) For a structure which is a functionally dependent use or which facilitates an open space use, the following applies: Any construction of a new or substantially improved structure in a coastal high hazard area must be elevated on adequately anchored pilings or columns, and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the floodplain as established by § 9.7(c). The structure shall be anchored so as to withstand velocity waters and hurricane wave wash.
( 3 ) The following applies to elevation of structures: ( i ) There shall be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the elevation of the floodplain as established by § 9.7(c).
( ii ) If the subject structure is nonresidential, instead of elevating the structure, FEMA may approve the design of the structure and its attendant utility and sanitary facilities so that the structure is watertight below the flood elevation with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.
( iii ) The provisions of paragraphs (d)(3)(i) and (ii) of this section do not apply to the extent that FEMA Resilience has granted an exception under § 60.6(b) of this chapter, or the community has granted a variance which the Regional Administrator determines is consistent with § 60.6(a) of this chapter. In a community which does not have a FEMA regulatory product in effect, FEMA may approve a variance from the standards of paragraphs (d)(3)(i) and (ii) of this section, after compliance with the standards of § 60.6(a).
( 4 ) There shall be no encroachments, including but not limited to fill, new construction, substantial improvements of structures or facilities, or other development within a designated regulatory floodway that would result in any increase in flood elevation within the community during the occurrence of the 1 percent annual chance (base) flood discharge. Until a regulatory floodway is designated, no fill, new construction, substantial improvements, or other development shall be permitted within the 1 percent annual chance (base) floodplain unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the 1 percent annual chance (base) flood more than the amount designated by the NFIP or the community, whichever is most restrictive.
( 5 ) Even if an action is a functionally dependent use or facilitates open space uses (under paragraph (d)(1) or (2) of this section) and does not increase flood heights (under paragraph (d)(4) of this section), such action may only be taken in a floodway or coastal high hazard area if: ( i ) Such site is the only practicable alternative; and
( ii ) Harm to and within the floodplain is minimized.
( 6 ) In addition to standards (d)(1) through (d)(5) of this section, no action may be taken if it is inconsistent with the criteria of the National Flood Insurance Program (44 CFR part 59 *et seq.*) or any more restrictive Federal, State or local floodplain management standards.
( 7 ) New construction and substantial improvement of structures shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill, in all cases in coastal high hazard areas and elsewhere, where practicable.
( 8 ) To minimize the effect of floods on human health, safety and welfare, the Agency shall: ( i ) Where appropriate, integrate all of its proposed actions in floodplains into existing flood warning and preparedness plans and ensure that available flood warning time is reflected;
( ii ) Facilitate adequate access and egress to and from the site of the proposed action; and
( iii ) Give special consideration to the unique hazard potential in flash flood, rapid-rise or tsunami areas.
( 9 ) In the replacement of building contents, materials and equipment, the Regional Administrator shall require as appropriate, flood proofing and/or elevation of the building and/or elimination of such future losses by relocation of those building contents, materials, and equipment outside or above the floodplain as established by § 9.7(c).
( e ) *Restore and preserve.* ( 1 ) For any action taken by the Agency which affects the floodplain or wetland and which has resulted in, or will result in, harm to the floodplain or wetland, the Agency shall act to restore and preserve the natural and beneficial values served by floodplains and wetlands.
( 2 ) Where floodplain or wetland values have been degraded by the proposed action, the Agency shall identify, evaluate, and implement measures to restore the values.
( 3 ) If an action will result in harm to or within the floodplain or wetland, the Agency shall design or modify the action to preserve as much of the natural and beneficial floodplain and wetland values as is possible.
[45 FR 59526, Sept. 9, 1980, as amended at 46 FR 51752, Oct. 22, 1981; 48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984; 49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 89 FR 57044, July 11, 2024]