Endangered Species Act for Conditional Letters of Map Change

FEMA requires applicants to demonstrate compliance for CLOMRs and CLOMR-Fs only.

All individuals in this country (private and public) have a legal responsibility to comply with the ESA. FEMA recognizes that potential projects for which a CLOMR or CLOMR-F has been requested may affect threatened and endangered species. As a result, FEMA requires documentation to show that potential projects comply with the ESA before a CLOMR or CLOMR-F application can be reviewed.

Many LOMC requests involve floodplain activities that have occurred already. As a result, FEMA does not have the opportunity to comment on these projects in terms of ESA compliance prior to the physical changes taking place. Private individuals and local and state jurisdictions are required to comply with the ESA independently of FEMA’s process.

As part of the CLOMR or CLOMR-F application, the requestor must provide an ITP, an Incidental Take Statement, a “not likely to adversely affect” determination from the Services, or an official letter from the Services concurring that the project has “No Effect” on proposed or listed species or designated critical habitat.

The timeframe needed to achieve ESA compliance will depend entirely on the complexity of the project, the extent to which species may be affected by the project, the quality of biological analyses conducted by the applicant, and the review process as determined by the Services. Therefore, we recommend that LOMC applicants coordinate with the Services as soon as possible within the project development process.

NMFS and the USFWS both have staff available around the country to answer questions about threatened and endangered species and ESA compliance. Refer to the NMFS Regional Offices and USFWS Office Directory links on Page 1 of this guidance document to identify the nearest available Service office. FEMA does not have staff available to assist with this process.

The applicant may begin by contacting a local Service office, state wildlife agency office, or independent biologist to identify whether threatened or endangered species exist on the subject property and whether the project associated with the CLOMR or CLOMR-F would adversely affect the species.

“Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct and may include habitat modification or degradation. “Harm” can arise from significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. “Section 7” requires all Federal agencies, in consultation with USFWS or NMFS, to use their authorities to further the purpose of the ESA and to ensure that their actions are not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat. “Section 10” lays out the guidelines under which a permit may be issued to non-Federal parties to authorize prohibited activities, such as take of endangered or threatened species. “ITP” or incidental take permit is a permit issued under section 10(a)(1)(B) of the ESA to a non-Federal party undertaking an otherwise lawful project that might result in the “take” of an endangered or threatened species. Application for an incidental take permit is subject to certain requirements, including preparation by the permit applicant of a HCP. “HCP” or habitat conservation plan is a legally binding plan that outlines ways of maintaining, enhancing, and protecting a given habitat type needed to protect species. It usually includes measures to minimize impacts and may include provisions for permanently protecting land, restoring habitat, and relocating plants or animals to another area. An HCP is required before an incidental take permit may be issued to non-Federal parties.

No physical modification to floodplain is proposed. ESA compliance is required independently of FEMA’s process. The community needs to ensure that permits are obtained per requirement under Section 60.3(a)(2) of FEMA's regulations.

Proposed placement of fill in the floodplain. ESA compliance must be documented to FEMA prior to issuance of CLOMR-F. FEMA must receive confirmation of ESA compliance from the Services.

Proposed modifications of floodplains, floodways, or flood elevations based on physical and/or structural changes. ESA compliance must be documented to FEMA prior to issuance of CLOMR. FEMA must receive confirmation of ESA compliance from the Services.

No physical modification to floodplain has occurred.ESA compliance is required independently of FEMA’s process. The community needs to ensure that permits are obtained per requirement under Section 60.3(a)(2) of FEMA’s regulations.

Placement of fill in floodplain has occurred.ESA compliance is required independently of FEMA’s process. The community needs to ensure that permits are obtained per requirement under Section 60.3(a)(2) of FEMA’s regulations.

Modifications of floodplains, floodways, or flood elevations have occurred based on physical and/or structural changes. ESA compliance is required independently of FEMA’s process. The community needs to ensure that permits are obtained per requirement under Section 60.3(a)(2) of FEMA’s regulations.

A LOMR‐F is a Letter of Map Revision Based on Fill. A LOMR‐F may be used if a structure or property is elevated on fill and the top of the fill around the entire perimeter of the structure and the lowest floor of the structure are at or above the BFE. The fill must meet the requirements of NFIP regulations as outlined in 44 CFR § 65.5.