North Carolina Buncombe County Disaster Relief Homeowner Grant Program; Based on New FEMA Mitigation Standards

Everything you need to know about whether homeowners will be given grants to rebuild, reconstruct, relocate or have the option of selling their property based on new FEMA floodplain rules.

North Carolina municipalities are holding public meetings and providing information on the options for homeowners and the business community throughout this week discussing options for recovery and rebuilding the community. There are multiple options for property owners dependent on the new FEMA new Floodplain final rules that came into effect on September 9, 2024. Many communities fall under the Special Flood Hazard Area zones determined by FEMA. Special Flood Hazard Area (SFHA) designated areas must follow the 1% chance of flooding in any given year, also known as a "1-percent-annual-chance flood" or "base flood" effective September 2024. FEMA Floodplain Final Rule The below North Carolina yellow highlighted counties qualify for multiple options under Hazard Mitigation Grants which provide funding through federal and state programs SFHA ZONES

Options vary depending on the substantial damage assessment to the home or structure based on the below three options.

North Carolina Homeowners Have Three Options:

Option One Elevation Program:

Helps homeowners raise their homes to a height that's 2 feet above the 100-year flood elevation.

Rebuild North Carolina:

Helps eligible property owners sell their homes and relocate to safer areas. The Rebuild North Carolina plan was developed in 2019 to help residents who live in SFHA designations to rebuild, relocate and recovery from natural disasters.

The Rebuild North Carolina plan bases their decisions on the FEMA 100-year floodplain rule based on zones:

An area identified by FEMA subject to inundation from a flood having a one percent or greater chance of being equaled or exceeded in any given year. Also referred to as the base flood or Special Flood Hazard Area (SFHA). These areas are labeled as Zone A, Zone AO, Zone AH, Zones A1- A30, Zone AE, Zone A99, Zone AR, Zone AR/AE, Zone AR/AO, Zone AR/A1-A30, Zone AR/A, Zone V, Zone VE, and Zones V1-V30 on the Flood Insurance Rate Map (FIRM). Interactive FEMA Flood Map

500-year floodplain: An area identified by FEMA as having a 0.2 percent change of being inundated by a flooding event in any given year. These moderate flood hazard areas are labeled Zone B or Zone X (shaded) on the Flood Insurance Rate Map, and are the areas between the limits of the base flood and the 0.2-percent-annual-chance (or 500-year) flood. Typically the 500-year floodplain rule applies to critical infrastructure outlined in the September 9, 2024, floodplain final rule 8-Step Decision tree process.

Mitigation Reconstruction Program:

Helps eligible property owners sell their homes and relocate to safer areas. This is a FEMA-funded program designed to reduce further damages and losses following a disaster. The county and state work together through the program to assist homeowners in the following types of projects:

1). Acquisitions - If your property has been “substancially damaged”, you are located in a SFHA and wish to relocate from that area, you can sign up for the acquisition program. Your home will be bought at the value your property would have been appraised at the day before the disaster took place. The property may be used for the public in the future such as the creation of recreational parks and/or undeveloped green spaces for perpituity.

2). Elevations - These are completed when your home may have had water on the first floor and you are in a flood hazard area. The program helps raise your home to a height 2 feet above the 100-year flood elevation through a new foundation. Temporary lodging will be provided, and no household items need to be moved out of the home for the process. FEMA's Direct Federal Assistance (DFA) module compares the before- and after-mitigation conditions. It uses documented historic damages or professional expected damages to calculate the project benefits. https://fema.gov/sites/default/files/documents/fema_technical-job-aid-elevation.pdf…

Considering the home's classification FEMA's grant can cover 75%, 90%, or 100% of the elevation costs, depending on the home's classification. For example, a home classified as an NFIP Repetitive Loss (RL) is eligible for 75%, while a home classified as a FEMA Severe Repetitive Loss (SRL) is eligible for 100%. Homeowners may be eligible for Increased Cost of Compliance (ICC) coverage if their home was substantially damaged or has sustained repetitive damage. Programs available to assist with construction costs:

Eligible homeowners who have NFIP policies (live in an SFHA) and whose homes were substantially damaged may be eligible for Increased Cost of Compliance (ICC) coverage of up to $30,000. This can pay all or part of the cost to elevate your home to the current effective base flood elevation. This program determinants include cost for flood proofing, elevation, demolition or relocation.

You may be eligible for ICC coverage if your local floodplain building official determines either:

Your structure is substantially damaged, meaning the cost to repair the flood damaged structure is 50 percent or more of its pre-disaster market value. Or . . .

Your property sustained repetitive damage, meaning that flood damage has occurred twice in the past 10 years, and the cost of repairing the flood damage, on average, equaled or exceeded 25 percent of the property market value at the time of each flood. Those two flood damage events must have resulted in flood insurance claim payments, and the community’s floodplain management ordinance must have a repetitive loss provision.

3). Mitigation reconstruction - If your home is determined ineligible for elevation, this program involves tearing down the old home and building a new foundation, then building a new home. Newly built houses will be constructed using standard floor plans. After FEMA acquires land in Buncombe County, North Carolina, through a disaster relief program, the land is deeded to the county for parks, greenways, and other municipal projects.

But there is great news for many people that are at the crossroad of deciding which option works based for them based on the SFHA designations because a Washington DC District Court of Appeals has ruled on a recent case that may give you options outside of the region floodplain rules promulgated over the last four years. The Strategic Buyout Program Manual link explains the program in great detail.

Great News Helene and Milton Disaster Recovery Survivors; A Washington DC District Court of Appeals Rules Unfavorably Regarding Executive Regulatory Directives

The Council on Environmental Quality (CEQ) establishes the tools and instructions for federal agencies on compliance rules promulgated from the National Environmental Protection Act (NEPA). The National Environmental Policy Act plays a big part in compliance and implementation of the FEMA floodplain rules through existing procedures including the President’s Council on Environmental Quality (CEQ) Task Force. The CEQ Climate and Economic Justice Screening Tool is then used by all other agencies when determining Environmental Impact, regulations and subsequent Federal Register final rule changes. In November 2022, the White House Council on Environmental Quality (CEQ), in partnership with the U.S. Digital Service, released the “version 1.0" of the Climate and Economic Justice Screening Tool (CEJST 1.0) to assist federal agencies in identifying disadvantaged communities. Version CEJST 2.0 is available now.

Van Ness Feldman LLC explains the potential limitations, paths forward based on the Washington D.C. District Court of Appeals ruling and a scheduled Supreme Court argument scheduled before the end of the year that address similar legal arguments. Essentially, the CEQ has been determined to be unconstitutional because CEQ “Environmental Impact Decisions” are by the direction of the Executive Branch and not inacted by the legislative branch.

CEQ NEPA Explained

The President’s Council on Environmental Quality (CEQ) National Environmental Protection Act and future “Environmental Impact Decisions Across the Whole-Of-Government Approach to Environmental and Natural Disasters.

The Van Ness Feldman Environmental Law Firm captures it concisely below:

“Under applicable federal and local rules, parties have 45 days to seek rehearing en banc of the court’s opinion. If granted, the court clerk will enter an order vacating the original panel’s judgment. If denied, any petition to the U.S. Supreme Court for a writ of certiorari is due within 90 days. There is also a potential for the parties to seek a stay of the decision. If granted, a stay would delay the effect of the decision.

Implications

If upheld, this case is likely to have sweeping implications for project developers and all federal agencies, the totality of which is currently unknown. Impacts on Ongoing NEPA Reviews Several key provisions of NEPA were integrated into statute last year as part of the 2023 Fiscal Responsibility Act. Those amendments remain in effect. Additionally, CEQ guidance remains valid, but is only guidance and not binding on agencies.

Impacts on Agency NEPA regulations

Although the court’s decision held that CEQ’s NEPA regulations are invalid, it is less clear how this decision impacts other agencies’ NEPA regulations. As the court noted, many agencies have adopted their own NEPA regulations intended to supplement CEQ’s regulations. The court opinion indicates, however, another agency’s adoption or incorporation of CEQ’s NEPA regulations does not revive the validity of CEQ’s NEPA regulations. Further, depending on how an agency’s NEPA regulations refer to or treat the CEQ regulations, it is possible that an individual agency’s NEPA regulations could also be deemed invalid. This would likely have an agency-by-agency impact, based on the specific language of that agency’s NEPA regulations.

Impacts on NEPA litigation

If this decision stands, parties (applicants, agencies, and project opponents) may be circumspect about relying upon CEQ’s NEPA regulations as the basis for their arguments. Instead, parties are likely to try to find support in the language of the NEPA statute, and applicable case law derived from the statute (rather than regulations). However, even with last year’s regulatory NEPA amendments, key terms like “environmental impacts” are undefined in the statute. This decision may also have an impact on, or be addressed in, another major NEPA case, Seven County Infrastructure Coalition v. Eagle County, Colorado (Docket 23-975), set to be argued before the U.S. Supreme Court on December 10, 2024. Washing D.C. District Court of Appeals ruling MARIN AUDUBON SOCIETY, ET AL., PETITIONERS v. FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION AND NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR

Residents in the hurricane devastated areas certainly have many decisions to make at this very moment. My concern is for the families who are struggling to feed their families, maintain parental custody of children, and struggling to stay warm with the cold weather approaching that you may relinguish property rights just to meet immediate needs. Hopefully with the potential changes coming soon with the recent Washington D.C. District Court of Appeals ruling and the upcoming Supreme Court case, future options will be more plentiful. Hang on tight if you can, I know there are many relief organizations working diligently to aid the suffering communities. God Bless You All.