127.21 Federal Emergency Management Agency (FEMA) Flood Buyout Properties

127.21.1 Introduction

127.21.1.1 Overview

The Flood Disaster Protection Act of 1973, as amended by the Disaster Relief and Emergency Assistance Act of 1988 (The Stafford Act), identified the use of disaster relief funds under Section 404 for the Hazard Mitigation Grant Program (HMGP), including the acquisition and relocation of flood damaged property. The Volkmer Bill further expanded the use of HMGP funds under Section 404 to “buyout” flood damaged property, which had been affected by the Great Flood of 1993.

The federal government, through the FEMA, administers the HMGP to purchase flood-prone properties, rather than repeatedly providing disaster relief after each flooding episode. The state liaison for FEMA, the Missouri State Emergency Management Agency (SEMA), finds and purchases flood-damaged properties. Although FEMA allows private ownership, SEMA only allows public ownership in Missouri; therefore after purchase, the properties are owned by various local (city and county) public jurisdictions.

There are several thousand “flood-buyout” parcels throughout the state and there are numerous restrictions on these FEMA buyout properties. No structures or improvements may be erected on these properties unless they are open on all sides. The site shall be used only for open space purposes and shall stay in public ownership. These conditions and restrictions (among others), along with the right to enforce them, are deemed to be covenants running with the land in perpetuity and are binding on subsequent successors, grantees, or assigns.

The buyout property restrictions preclude development of the parcels, including placement of fill material or bridge piers; thus the deed restrictions are a constraint to building roads and bridges. Any decision involving these properties should take into consideration that two to three years is needed to obtain an exemption from FEMA to utilize these parcels. This exemption would likely be a permanent easement rather than a transfer of property.

127.21.1.2 Laws and Regulations

• 44 CFR 206.434(d)—codifies the Hazard Mitigation Grant Program.
• Stafford Act, Section 404, 1988—created the Hazard Mitigation Grant Program.
• Volkmer Bill, 1993—an amendment to the Stafford Act, it substantially increased funding to the Hazard Mitigation Grant Program.
• National Environmental Policy Act (NEPA) of 1969.

127.21.1.3 Process

The district must complete and submit a Request for Environmental Services (RES) to the Design Division’s environmental section. Upon receiving an RES from the district, the environmental specialist will identify whether the project takes place in an area with FEMA buyout properties and the extent of encroachment. Avoidance is strongly recommended. If the buyout property cannot be avoided, the environmental specialist, with help from the district, will begin coordination with the local government administrator as well as SEMA to obtain relief from the open space restriction. The SEMA will forward this request to FEMA’s regional office, then on to the FEMA Director’s office in Washington, D.C. The request may be granted subject to conditions. FEMA may then prepare the legal instruments to amend the deed and allow construction to take place.

127.21.2 Project Development Milestones

127.21.2.1 Location/Conceptual Plans Stage

At the Location/Conceptual Plan stage, the environmental specialist will identify whether the project takes place in an area with FEMA buyout properties and the extent of encroachment. Avoidance is strongly recommended. If the buyout property cannot be avoided, the environmental specialist, with the help of the district, will begin coordination with the local administrator, as well as SEMA, to obtain relief from the open space restriction. This request will be forwarded by SEMA to FEMA’s regional office, then on to the FEMA Director’s office in Washington, D.C. The request may be granted subject to conditions. FEMA may then prepare the legal instruments to amend the deed to allow construction to take place. Because of the amount of time involved in processing FEMA buyout property, pertinent information should be sent to the environmental specialist as soon as possible.

127.21.2.2 Preliminary Plans Stage

At the Preliminary Plans stage, the environmental specialist will identify whether the project takes place in an area with FEMA buyout properties, and the extent of encroachment. Avoidance will be strongly recommended. If the buyout property cannot be avoided, the environmental specialist, with the help of the district, will begin coordination with the local administrator, as well as SEMA, to obtain relief from the open space restriction. This request will be forwarded by SEMA to FEMA’s regional office, then on to the FEMA Director’s office in Washington, D.C. The request may be granted subject to conditions. FEMA may then prepare the legal instruments to amend the deed to allow construction to take place. Because of the amount of time involved in processing FEMA buyout property, pertinent information should be sent to the environmental specialist as soon as possible.

127.21.2.3 Right of Way Plans Stage

At the Right of Way Plans stage, the environmental specialist will identify whether the project takes place in an area with FEMA buyout properties, and the extent of encroachment. Avoidance is strongly recommended. If the buyout property cannot be avoided, the environmental specialist, with the help of the district, will begin coordination with the local administrator, as well as SEMA, to obtain relief from the open space restriction. This request will be forwarded by SEMA to FEMA’s regional office, then on to the FEMA Director’s office in Washington, D.C. The request may be granted subject to conditions. FEMA may then prepare the legal instruments to amend the deed to allow construction to take place. Because of the amount of time involved in processing FEMA buyout property, pertinent information should be sent to the environmental specialist as soon as possible.

127.21.2.4 Final Design Stage

At the Final Design stage, the FEMA buyout process must be nearing completion to avoid delays to letting the project since the property cannot be purchased or given a permanent easement until the issue is resolved. However, if unknown FEMA buyout property is discovered at this stage, the environmental specialist will identify the extent of encroachment. Avoidance of flood buyout properties is strongly recommended. If the buyout property cannot be avoided, the environmental specialist, with the help of the district, will begin coordination with the local administrator, as well as SEMA, to obtain relief from the open space restriction. This request will be forwarded by SEMA to FEMA’s regional office, then on to the FEMA Director’s office in Washington, D.C. The request may be granted subject to conditions. FEMA may then prepare the legal instruments to amend the deed to allow construction to take place.

127.21.2.5 Letting

Coordination between MoDOT, the local administrator, and SEMA must begin well before letting so there is time to obtain relief from open space restrictions on FEMA buyout properties. If this has not begun prior to letting, the project will experience significant delays until this coordination has been achieved. The affected buyout property cannot be purchased or given a permanent easement until FEMA prepares the legal instruments to amend the deed to allow construction to occur.