EVALUATION OF FLOOD HAZARD IN LOCATING FEDERALLY OWNED OR FINANCED BUILDINGS, ROADS, AND OTHER FACILITIES, AND IN DISPOSING OF FEDERAL LANDS AND PROPERTIES

[Executive Order 11296, 31 Fed. Reg. 10663]

Whereas uneconomic uses of the Nation's flood plains are occuring and potential flood losses are increasing despite substantial efforts to control floods; and

Whereas national and regional studies of areas and property subject to flooding indicate a further increase in flood damage potential and flood losses, even with continuing investment in flood protection structures; and

Whereas the Federal Government has extensive and continuing programs for the construction of buildings, roads, and other facilities and annually disposes of thousands of acres of Federal lands in flood hazard areas, all of which activities significantly influence patterns of commercial, residential, and industrial development; and

Whereas the availability of Federal loans and mortgage insurance and land use planning programs are determining factors in the utilization of lands:

Now, therefore, by virtue of the authority vested in me as President of the United States, it is hereby ordered as follows:

SECTION 1. The heads of the executive agencies shall provide leadership in encouraging a broad and unified effort to prevent uneconomic uses and development of the Nation's flood plains and, in particular, to lessen the risk of flood losses in connection with Federal lands and installations and federally financed or supported improvements. Specifically:

(1) All executive agencies directly responsible for the construction of Federal buildings, structures, roads, or other facilities shall evaluate flood hazards when planning the location of new facilities and, as far as practicable, shall preclude the uneconomic, hazardous, or unnecessary use of flood plains in connection with such facilities. With respect to existing Federally owned properties which have suffered flood damage or which may be subject thereto, the responsible agency head shall require conspicuous delineation of past and probable flood heights so as to assist in creating public awareness of and knowledge about flood hazards. Whenever practical and economically feasible, flood proofing measures shall be applied to existing facilities in order to reduce flood damage potential.

(2) All executive agencies responsible for the administration of Federal grant, loan, or mortgage insurance programs involving the construction of buildings, structures, roads, or other facilities shall evaluate flood hazards in connection with such facilities and, in order to minimize the exposure of facilities to potential flood damage and the need for future Federal expenditures for flood protection and flood disaster relief, shall, as far as practicable, preclude the uneconomic, hazardous, or unnecessary use of flood plains in such connection. (3) All executive agencies responsible for the disposal of Federal lands or properties shall evaluate flood hazards in connection with lands or properties proposed for disposal to non-Federal public instrumentalities or private interests and, as may be desirable in order to

minimize future Federal expenditures for flood protection and flood disaster relief and as far as practicable, shall attach appropriate restrictions with respect to uses of the lands or properties by the purchaser and his successors and may withhold such lands or properties from disposal. In carrying out this paragraph, each executive agency may make appropriate allowance for any estimated loss in sales price resulting from the incorporation of use restrictions in the disposal documents.

(4) All executive agencies responsible for programs which entail land use planning shall take flood hazards into account when evaluating plans and shall encourage land use appropriate to the degree of hazard involved.

SEC. 2. As may be permitted by law, the head of each executive agency shall issue appropriate rules and regulations to govern the carrying out of the provisions of Section 1 of this order by his agency. SEC. 3. Requests for flood hazard information may be addressed to the Secretary of the Army or, in the case of lands lying in the basin of the Tennessee River, to the Tennessee Valley Authority. The Secretary or the Tennessee Valley Authority shall provide such information as may be available, including requested guidance on flood proofing. The Department of Agriculture, Department of the Interior, Department of Commerce, Department of Housing and Urban Development, and Office of Emergency Planning, and any other executive agency which may have information and data relating to floods shall cooperate with the Secretary of the Army in providing such information and in developing procedures to process information requests.

SEC. 4. Any requests for appropriations for Federal construction of new buildings, structures, roads, or other facilities transmitted to the Bureau of the Budget by an executive agency shall be accompanied by a statement by the head of the agency on the findings of his agency's evaluation and consideration of flood hazards in the development of such requests.

SEC. 5. As used in this order, the term "executive agency" includes any department, establishment, corporation, or other organizational entity of the executive branch of the Government.

SEC. 6. The executive agencies shall proceed immediately to develop such procedures, regulations, and information as are provided for in, or may be necessary to carry out, the provisions of Sections 1, 2, and 3 of this order. In other respects this order shall take effect on January 1, 1967.

THE WHITE HOUSE,

August 10, 1966.

LYNDON B. JOHNSON.

AUTHORITY: The provisions of this Part 1711 issued under sec. 9, Public Law 89-769, 80 Stat. 1316; E.O. 11051, 27 F.R. 9683, 3 CFR, 1959-1963 Comp.

§ 1711.1 Purpose.

The purpose of this part is to prescribe the standards and procedures to be followed in providing Federal assistance to repair, restore, or reconstruct any project of a State, county, municipal, or other local government agency for flood control, navigation, irrigation, reclamation, public power, sewage treatment, water treatment, watershed development, or airport construction which was damaged or destroyed as a result of a major disaster, and for the resulting additional eligible costs incurred to complete any such facility, which was in the process of construction or was completed but not accepted by the public operating authority when damaged or destroyed as a result of such major disaster, under section 9 of Public Law 89-769.

$1711.2 Definitions.

Except as otherwise stated, the following terms shall have the following meanings when used in the regulations in this part:

(a) Act. Public Law 89-769 enacted November 6, 1966, entitled "Disaster Relief Act of 1966."

(b) Major disaster. A major disaster as determined by the President pursuant to Public Law 81-875 entitled "An Act to authorize Federal assistance to States and local governments in major disasters, and for other purposes", approved September 30, 1950, as amended (42 U.S.C. 1855-1855g).

(c) Applicant. A State, county, municipal or other local government

agency.

(d) Contractor. Any individual, partnership, corporation, agency, or other entity (other than an organization engaged in the business of insurance) performing work for an eligible applicant.

§ 1711.3 Requests for Federal assistance.

(a) After the declaration of a major disaster by the President of the United States, under the provisions of Public Law 81-875, Federal financial assistance shall be provided under the Act on the basis of project applications submitted by the State and local governments to the respective Regional Director pursuant to the Federal-State Disaster Assistance Agreement and in accordance with this part. The project application shall include the name and type of facility damaged, the type and estimated extent of damage, a detailed estimate of eligible work required and the cost thereof, the amount of funds being requested, the name(s) of the contractor(s) (if any) involved and complete technical data supporting the claim. The above information is to be furnished for each feature of a project.

(b) 1 For major disasters declared prior to the date of publication of "Administrative Procedures for Furnishing Assistance Under the Provisions of Section 9, Public Law 769, 89th Congress," project applications under this part shall be submitted within 90 days of the date of publication of such administrative procedures. For major disasters declared on or after that date, project applications under this part shall be submitted not later than 90 days following the date of the President's declaration of a major disaster. If the circumstances of the disaster are such as to make the time limitation impracticable, the Regional Director may extend it for a reasonable period. The filing of an application shall be without prejudice to any unresolved questions which may be pending between the applicant and the contractors.

(c) Every project application shall contain a certification by the Governor, or his authorized representative as designated in the Federal-State Disaster Assistance Agreement, that Federal financial assistance involved will be, or has been, expended in accordance with applicable law and regulations thereunder.

(d) The Regional Director shall, upon receipt of the request, direct an appropriate Federal agency to make an inspection at the site of the work, review available records, and provide an analysis of the claim and findings as to the work eligible under the Act. Upon receipt of the Federal agency analysis and findings, the Regional Director shall forward to the National Office his recommendation together with the project application and all supporting material. The Director, OEP, shall determine the amount of eligible work and approve the application not to exceed 50 percent of the cost thereof, or disapprove the application.

(e) If a project application is approved without change by the Director, signed copies thereof evidencing such approval shall be returned to the State.

(f) If the Director's approval of the project application is made subject to revisions or additional conditions, the project application may be given provisional approval and returned to the State (and through the State to the applicant if applicable) for consent to such revisions or additional conditions. If the State (and applicant) accepts such revisions or additional conditions, it shall so signify by signing and returning the project application.

1 Amended to read as set forth in the text by 32 Fed. Reg. 12845.

(g) If a project application is disapproved by the Director, the application shall be returned to the State with a statement of the reasons for such disapproval: Provided, If the project application is disapproved because of inadequacy of information, it may be resubmitted by the State within 30 days of the date of the return to the State for reconsideration by the Director.

§ 1711.4 Eligible projects.

An eligible project is any project of an eligible applicant for flood control, navigation, irrigation, reclamation, public power, sewage treatment, water treatment, watershed development, or airport construction (or a part of such facility), which was in the process of construction when damaged or destroyed by a major disaster. A project under construction by a Federal agency is not an eligible project within the meaning of the Act.

§ 1711.5 Criteria of eligible costs.

Eligible costs are defined to mean those costs determined by the Director of the Office of Emergency Planning as incurred or to be incurred in (a) restoring a public facility to substantially the same condition as existed prior to the damage resulting from the major disaster, and (b) completing construction not performed prior to the major disaster to the extent the increase of such costs over original construction costs is attributable to changed conditions resulting from the major disaster.

§ 1711.6 Reimbursement.

Reimbursement under this part shall be made through the State to the applicant which is constructing the public facility or for which it is being constructed, except that if the economic burden of the eligible costs of repair, restoration, reconstruction, or completion is incurred by a contractor, the applicant shall reimburse such contractor not to exceed 50 per centum of those costs. Reimbursement will be made under this part only after all eligible work is completed: Provided, That the Director may, at his discretion, approve periodic reimbursements based on progress of work. No reimbursement will be made to any party for damages caused by its own negligence.

§ 1711.7 Application of certain sections of Part 1710.

The following sections of Part 1710 of this chapter are applicable to this part: §§ 1710.2 (e), (g), (h), (i), and (j), 1710.3–1710.6, 1710.8, 1710.11, 1710.15 and such other provisions of Part 1710 of this chapter as may be consistent with the Act and the regulations in this part. § 1711.8 Effective date.

This part shall become effective on the 30th day following the date of publication in the FEDERAL REGISTER1 and shall apply with respect to any major disaster occurring after October 3, 1964.

Dated: May 19, 1967.

FARRIS BRYANT,

Director,

Office of Emergency Planning?

1 Published May 25, 1967, and effective June 24, 1967.

2 Sec. 402, Supplemental Appropriation Act, 1969, Public Law 90-608, approved Oct. 21, 1968, 82 Stat. 1190, 1194, changed the name Office of Emergency Planning to Office of Emergency Preparedness.