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Required Endangered Species Act Compliance Documentation for Conditional Letter of Map Revision Requests

The purpose of the Endangered Species Act (ESA) is to conserve threatened and endangered species and the ecosystems upon which they depend. Conditional Letter of Map Revision/Conditional Letter of Map Revision with Fill are submitted to FEMA prior to construction.

FEMA’s Conditional Letter of Map Revision process is independent of the ESA.  All proposed private development projects are required to comply with the ESA independently.

Non-Federal Projects

1. No potential for “Take” exists

This means that the project has no potential to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct to threatened and endangered species.

The requester will be responsible for the potential for take determination and the determination is not required to come from, or be concurred by, the U.S. Department of Interior’s Fish and Wildlife Service (USFWS) and the U.S. Department of Commerce’s National Marine Fisheries Service (NMFS), collectively known as “the Services."

2. If a “Take” is determined or has the potential to occur

The requester can consider contacting the Services to discuss potential project revisions to eliminate the “Take.”

3. Incident Take Permit

If neither 1 or 2 are possible and the project has the potential to “Take” listed species, this permit may be submitted showing that the project is the subject, or is covered by the subject, of the permit.

Federal Construction

If federal construction, funding or permitting is involved in a project for which a Conditional Letter of Map Revision/Conditional Letter of Map Revision with Fill has been requested, then the applicant may use that agency’s Section 7 consultation to document to FEMA that ESA compliance has been achieved.

ESA Documentation

The ESA documentation may be:

  1. A “No Effect” determination made by, or concurred by, the federal agency;
  2. A “Not Likely to Adversely Affect” determination with concurrence from the Services;
  3. A biological opinion with a “no jeopardy” determination or with accepted reasonable and prudent alternatives;
  4. A copy of a federally issued permit with justification that the proposed development for which a Conditional Letter of Map Revision/Conditional Letter of Map Revision with Fill is sought is covered by the permit.

For Letter of Map Revision (LOMR) requests involving floodplain activities that have occurred already, private individuals and local and state jurisdictions are required to comply with the ESA independently of FEMA’s process. The community needs to ensure that permits are obtained per the National Flood Insurance Program regulations at Code of Federal Regulation Title 44 §60.3(a)(2).