[Code of Federal Regulations]
[Title 44, Volume 1]
[Revised as of October 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 44CFR60.6]

[Page 244-246]
 
              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE
 
 CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND 
                                SECURITY
 
PART 60_CRITERIA FOR LAND MANAGEMENT AND USE--Table of Contents
 
      Subpart A_Requirements for Flood Plain Management Regulations
 
Sec.  60.6  Variances and exceptions.

    (a) The Administrator does not set forth absolute criteria for 
granting variances from the criteria set forth in Sec. Sec.  60.3, 60.4, 
and 60.5. The issuance of a variance is for flood plain management 
purposes only. Insurance premium rates are determined by statute 
according to actuarial risk and will not be modified by the granting of 
a variance. The community, after examining the applicant's hardships, 
shall approve or disapprove a request. While the granting of variances 
generally is limited to a lot size less than one-half acre (as set forth 
in paragraph (a)(2) of this section), deviations from that limitation 
may occur. However, as the lot size increases beyond one-half acre, the 
technical justification required for issuing a variance increases. The 
Administrator may review a community's findings justifying the granting 
of variances, and if that review indicates a pattern inconsistent with 
the objectives of sound flood plain management, the Administrator may 
take appropriate action under Sec.  59.24(b) of this subchapter. 
Variances may be issued for the repair or rehabilitation of historic 
structures upon a determination that the proposed repair or 
rehabilitation will not preclude the structure's continued designation 
as a historic structure and the variance is the minimum necessary to 
preserve the historic character and design of the structure. Procedures 
for the granting of variances by a community are as follows:
    (1) Variances shall not be issued by a community within any 
designated regulatory floodway if any increase in flood levels during 
the base flood discharge would result;
    (2) Variances may be issued by a community for new construction and 
substantial improvements to be erected on a lot of one-half acre or less 
in size contiguous to and surrounded by lots with existing structures 
constructed below the base flood level, in conformance with the 
procedures of paragraphs (a) (3), (4), (5) and (6) of this section;
    (3) Variances shall only be issued by a community upon (i) a showing 
of good and sufficient cause, (ii) a determination that failure to grant 
the variance would result in exceptional hardship to the applicant, and 
(iii) a determination that the granting of a variance will not result in 
increased flood heights, additional threats to public safety, 
extraordinary public expense, create nuisances, cause fraud on or 
victimization of the public, or conflict with existing local laws or 
ordinances;
    (4) Variances shall only be issued upon a determination that the 
variance is the minimum necessary, considering the flood hazard, to 
afford relief;
    (5) A community shall notify the applicant in writing over the 
signature of a community official that (i) the issuance of a variance to 
construct a structure below the base flood level will result in 
increased premium rates for flood insurance up to amounts as high as $25 
for $100 of insurance coverage and (ii) such construction below the base 
flood level increases risks to life and property. Such notification 
shall be maintained with a record of all variance actions as required in 
paragraph (a)(6) of this section; and
    (6) A community shall (i) maintain a record of all variance actions, 
including justification for their issuance, and (ii) report such 
variances issued in its annual or biennial report submitted to the 
Administrator.
    (7) Variances may be issued by a community for new construction and 
substantial improvements and for other development necessary for the 
conduct of a functionally dependent use provided that (i) the criteria 
of paragraphs (a)(1) through (a)(4) of this section are met, and (ii) 
the structure or other development is protected by methods that minimize 
flood damages during the base flood and create no additional threats to 
public safety.

[[Page 245]]

    (b)(1) The requirement that each flood-prone, mudslide (i.e., 
mudflow)-prone, and flood-related erosion prone community must adopt and 
submit adequate flood plain management regulations as a condition of 
initial and continued flood insurance eligibility is statutory and 
cannot be waived, and such regulations shall be adopted by a community 
within the time periods specified in Sec. Sec.  60.3, 60.4 or Sec.  
60.5. However, certain exceptions from the standards contained in this 
subpart may be permitted where the Administrator recognizes that, 
because of extraordinary circumstances, local conditions may render the 
application of certain standards the cause for severe hardship and gross 
inequity for a particular community. Consequently, a community proposing 
the adoption of flood plain management regulations which vary from the 
standards set forth in Sec. Sec.  60.3, 60.4, or Sec.  60.5, shall 
explain in writing to the Administrator the nature and extent of and the 
reasons for the exception request and shall include sufficient 
supporting economic, environmental, topographic, hydrologic, and other 
scientific and technical data, and data with respect to the impact on 
public safety and the environment.
    (2) The Administrator shall prepare a Special Environmental 
Clearance to determine whether the proposal for an exception under 
paragraph (b)(1) of this section will have significant impact on the 
human environment. The decision whether an Environmental Impact 
Statement or other environmental document will be prepared, will be made 
in accordance with the procedures set out in 44 CFR part 10. Ninety or 
more days may be required for an environmental quality clearance if the 
proposed exception will have significant impact on the human environment 
thereby requiring an EIS.
    (c) A community may propose flood plain management measures which 
adopt standards for floodproofed residential basements below the base 
flood level in zones A1-30, AH, AO, and AE which are not subject to 
tidal flooding. Notwithstanding the requirements of paragraph (b) of 
this section the Administrator may approve the proposal provided that:
    (1) The community has demonstrated that areas of special flood 
hazard in which basements will be permitted are subject to shallow and 
low velocity flooding and that there is adequate flood warning time to 
ensure that all residents are notified of impending floods. For the 
purposes of this paragraph flood characteristics must include:
    (i) Flood depths that are five feet or less for developable lots 
that are contiguous to land above the base flood level and three feet or 
less for other lots;
    (ii) Flood velocities that are five feet per second or less; and
    (iii) Flood warning times that are 12 hours or greater. Flood 
warning times of two hours or greater may be approved if the community 
demonstrates that it has a flood warning system and emergency plan in 
operation that is adequate to ensure safe evacuation of flood plain 
residents.
    (2) The community has adopted flood plain management measures that 
require that new construction and substantial improvements of 
residential structures with basements in zones A1-30, AH, AO, and AE 
shall:
    (i) Be designed and built so that any basement area, together with 
attendant utilities and sanitary facilities below the floodproofed 
design level, is watertight with walls that are impermeable to the 
passage of water without human intervention. Basement walls shall be 
built with the capacity to resist hydrostatic and hydrodynamic loads and 
the effects of buoyancy resulting from flooding to the floodproofed 
design level, and shall be designed so that minimal damage will occur 
from floods that exceed that level. The floodproofed design level shall 
be an elevation one foot above the level of the base flood where the 
difference between the base flood and the 500-year flood is three feet 
or less and two feet above the level of the base flood where the 
difference is greater than three feet.
    (ii) Have the top of the floor of any basement area no lower than 
five feet below the elevation of the base flood;
    (iii) Have the area surrounding the structure on all sides filled to 
or above the elevation of the base flood. Fill

[[Page 246]]

must be compacted with slopes protected by vegetative cover;
    (iv) Have a registered professional engineer or architect develop or 
review the building's structural design, specifications, and plans, 
including consideration of the depth, velocity, and duration of flooding 
and type and permeability of soils at the building site, and certify 
that the basement design and methods of construction proposed are in 
accordance with accepted standards of practice for meeting the 
provisions of this paragraph;
    (v) Be inspected by the building inspector or other authorized 
representative of the community to verify that the structure is built 
according to its design and those provisions of this section which are 
verifiable.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 
1984; 50 FR 36025, Sept. 4, 1985; 51 FR 30308, Aug. 25, 1986; 54 FR 
33550, Aug. 15, 1989]