American Rivers, Association of State Wetland Managers Issue Joint Public Comment on FEMA Notice

WASHINGTON, Oct. 28 -- Eileen Shader, director of river restoration at American Rivers, and Marla J. Stelk, executive director of the Association of State Wetland Managers, Windham, Maine, have issued a joint public comment on the Federal Emergency Management Agency notice entitled "Request for Information: National Flood Insurance Program's Community Rating System". The comment was written on Oct. 22, 2021, and posted on Oct. 25, 2021:

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American Rivers and the Association of State Wetland Managers (ASWM) submit the following comments in response to the Request for Information on the National Flood Insurance Program's Community Rating System pre Federal Register Docket IS FEMA-2021-0021.

American Rivers believes every community in our country should have clean water and a healthy river. Since 1973, American Rivers has protected wild rivers, restored damaged rivers and conserved clean water for people and nature. With headquarters in Washington, D.C., offices across the country, and over 350,000 members, supporters, and volunteers, American Rivers is the premier river conservation organization in the United States, delivering solutions that will last for generations to come.

The Association of State Wetland Managers is a nonprofit professional organization that supports the use of sound science, law, and policy in development and implementation of state and tribal wetland programs. Since 1983, ASWM and its member states and tribes have had long-standing positive and effective working relationships with federal agencies in the implementation of both regulatory and non-regulatory programs designed to protect the nation's aquatic resources.

ASWM is a founding member of the Natural Floodplain Functions Alliance (NFFA), an affiliation of nonprofit and private organizations, government agencies and individuals dedicated to the protection and preservation of the natural functions of floodplains, including coastal areas. ASWM is also a founding member of the Wetlands Mapping Consortium (WMC), an interdisciplinary group of wetland scientists and managers interested in mapping and monitoring wetlands with remotely sensed images and/or using the resultant products to best manage wetland resources.

Below we provide two overarching comments regarding the Community Rating System, and answers to several of the questions posed by FEMA in the RFI. Thank you for considering our recommendations.

Comments:

1) Effectiveness of the Community Rating System requires strengthening the NFIP to support protection and restoration of natural and beneficial floodplain functions.

The Community Rating System was authorized to provide incentives for NFIP participating communities to implement flood risk reduction actions that exceed the minimum standards of the NFIP. While this remains a desirable tactic, the effectiveness of the CRS at incentivizing higher standards and practices is only as effective as the bar set by the components of the NFIP- insurance, floodplain management standards, mapping, and mitigation. These four legs of the NFIP stool combined have a profound impact on the development decisions in floodplains across the nation.

States, tribes and local communities have many reasons to want to restore floodplains in a manner that optimizes natural functions, including legal obligations to comply with endangered species conservation or to meet water quality requirements. However, many of these entities run into barriers with FEMA programs. For instance, FEMA requirements for no rise certificates and expensive hydrology and hydraulic modeling prior to planting native trees on open space properties has resulted in conflicts in Pennsylvania, Vermont, and other locations seeking to maximize native vegetation on floodplains to meet water quality standards. Likewise, in August 2020, FEMA rescinded a policy intended to make it easier for local communities to issue floodplain development permits for fish habitat restoration projects in the floodway, a decision that has caused significant impact on the ability of Pacific Northwest communities to implement projects to restore habitat for salmon species listed as Threatened or Endangered under the Endangered Species Act.

FEMA has not comprehensively updated the minimum criteria for construction and land-use in flood-prone areas since the 1970's. In the intervening five decades, development in flood hazard areas has continued and the impacts of climate change have altered precipitation rates and increased flood events. As a consequence, flood damages continue to rise. FEMA must assess the current minimum standards and amend them to account for future conditions and land-use changes in order to achieve the goals of the NFIP and reduce flood damages to the nation. Our organizations are encouraged that FEMA recently issued a Request for Information/1 to seek feedback from the public on the current floodplain management standards to inform actions to revise the NFIP minimum floodplain management standards. Our organizations are submitting comments that recommend ways the minimum land use standards required under the NFIP can improve protection and restoration of the natural and beneficial functions of floodplains in order for our nation to become more resilient to the impacts of climate change and contribute to solving national water resources related issues including the biodiversity crisis and equitable access to clean water.

2) FEMA should center protection and restoration of natural and beneficial floodplain functions as an explicit goal of the CRS Program.

Floodplains provide incredible value to society. The 1994 revisions to A Unified Program for Floodplain Management by the Federal Interagency Floodplain Management Task Force noted that "relatively undisturbed floodplains or those that have been restored to a nearly natural state provide a wide range of benefits to both human and natural systems. Some of these benefits are static in nature (e.g. providing aesthetic pleasure) and some are dynamic processes (e.g., filtering nutrients)."/2

The landmark Executive Order 11988, Floodplain Management, enshrined the importance of natural floodplains and charged every federal agency with taking "action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the natural and beneficial values served by floodplains..." In order for a floodplain to function in a manner that maximizes the natural and beneficial values (i.e., benefits) provided to people and the environment, research/3 demonstrates that four key attributes must be attained:

* Connectivity: A functional floodplain is physically accessible by water from its adjacent river or stream to allow an exchange of water, nutrients, sediment and organisms.

* Variable Flow: A functional floodplain is connected to a river capable of producing flows with magnitudes large enough to inundate the floodplain. Additionally, a river must produce such flows at specific times of the year, for adequate spans of time, and at variable return frequencies to maximize a full range of ecological functions. Together, variable flow describes the necessary timing, duration, magnitude, and frequency (TMDF) of flows that support local biota.

* Spatial Scale: A functional floodplain must have the space to accommodate inundation and the resulting habitat and landscape forming processes that occur.

* Habitat and Structural Diversity: diversity of sediment erosion and deposition conditions, gradients of hydrologic connectivity, ecological succession and naturally accumulated debris generate habitat supportive of terrestrial and aquatic organisms. Ideally, these features emerge from co-occurrence of the previous three attributes.

The attributes of floodplains listed above catalyze the biological, chemical and physical processes that generate the benefits that floodplains can provide to society including flood conveyance and moderation, water quality improvements, carbon sequestration, aquifer recharge, habitat for aquatic organisms, etc. However, when human activities alter the attributes of a functional floodplain they can disrupt these processes, resulting in a reduction or destruction of floodplain functions. The Task Force on the Natural and Beneficial Functions of the Floodplain identifies some of the most common human activities that impact functional floodplains:

* Channelization and diversions

* Dams and reservoirs

* Levees, dikes and floodwalls

* Dredging and excavation

* Urbanization

* Mining

* Agriculture and forestry

* Introduction of exotic species

* Recreation/4

The Community Rating System optimizes credits for actions that can help preserve and increase the amount of floodplain open space, however the program falls short when it comes to rewarding actions that would increase the quality and quantity of functional natural floodplains. For instance, after FEMA funds acquisition and demolition projects for flood-prone properties, FEMA requires the property to be dedicated and maintained in perpetuity as open space for the conservation of natural floodplain functions. Per a FEMA Fact Sheet/5 on the program, the following land uses are allowed:

* Parks for outdoor recreational activities

* Wetlands management

* Nature reserves, cultivation, grazing, and camping (except where adequate warninign time is not available to allow evacuation)

* Unimproved, unpaved parking areas

* Buffer zones

* Other uses FEMA determines compatible

While these land uses are all preferable to urban and residential development, they do not equally foster the conservation of natural floodplain functions. Many communities that engage in open space preservation projects on floodplain land establish public parks, athletic fields, or other uses that utilize turf grass as a primary vegetation on the landscape. According to the National Academies of Science:

"Although [Landscaped and Turf Areas] are some of the only true pervious surfaces in municipal areas, disturbed urban soils can be severely compacted, with much more reduced infiltration rates than are assumed for undisturbed regional soils. Besides the usually greater than expected quantities of runoff of pervious surfaces in urban areas, they can also contribute high concentrations of various pollutants. In areas with high rain intensities, erosion of sediment can be high from pervious areas, resulting in much higher concentrations of total suspended solids (TSS) than from paved areas. Also, landscaping chemicals, including fertilizers and pesticides, can be transported from landscaped urban areas. Undeveloped woods in urban areas can have close to natural runoff conditions, but many parks and other open-space areas usually have degraded runoff compared to natural conditions. Turf grass has unique characteristics compared to other landscaped areas in that the soil structure is usually more severely degraded compared to natural conditions. The normally shallower root systems are not as effective in restoring compacted soils and they can remain compacted due to some activities (pathways, parked cars, playing fields, etc.) that do not occur on areas planted with shrubs and trees."/6

As an incentive program, with a specific authorized goal of protecting the natural and beneficial functions of floodplains, the Community Rating System should be designed in a way that rewards and encourages communities who go above and beyond when it comes to restoring functional floodplains. In order to do so, the CRS Program must elevate protection and restoration of natural and beneficial floodplain functions to a co-equal goal of the program. FEMA can take this action under the existing authorization for the CRS Program.

Per 42 USC Sec. 4022(b)(1), the FEMA Administrator is authorized to carry out a Community Rating System that achieves the following goals:

"(A) to provide incentives for measures that reduce the risk of flood or erosion damage that exceed the criteria set forth in section 4102 of this title and evaluate such measures;

(B) to encourage adoption of more effective measures that protect natural and beneficial floodplain functions;

(C) to encourage floodplain and erosion management; and

(D) to promote the reduction of Federal flood insurance losses."/7 (emphasis added)

The definition of "natural and beneficial floodplain functions" is defined as "(A) the functions associated with the natural or relatively undisturbed floodplain that (i) moderate flooding, retain flood waters, reduce erosion and sedimentation, and mitigate the effects of waves and storm surge from storms, and (ii) reduce flood related damage; and (B) ancillary beneficial functions, including maintenance of water quality and recharge of groundwater, that reduce flood related damage;" 42 USC Sec. 4121(a)(12).

However, despite this clear requirement that the CRS encourage adoption of more effective measures that protect natural and beneficial floodplain functions, the National Flood Insurance Program Community Rating System Coordinator's Manual fails to specifically acknowledge the natural and beneficial functions of floodplains. According to the CRS Coordinator's Manual the goals of the CRS are:

1) Reduce and avoid flood damage to insurable property

2) Strengthen and support the insurance aspects of the NFIP

3) Foster comprehensive floodplain management8

This failure to directly include natural and beneficial functions of floodplains in the goals of the CRS program relegates natural and beneficial functions of floodplains to an ancillary benefit of the program, rather than one of the primary goals as intended by Congress.

In order to center protection and restoration of the functions of floodplains in land use requirements under the CRS, FEMA should take the following actions:

1) Seek changes to the authorizing language for the Community Rating System to strengthen the emphasis on protection and restoration of the natural and beneficial functions of floodplains. At a minimum, the following changes should be made: a) U.S. Code Sec. 4022 (b)(B) should be amended to read "to encourage adoption of more effective measures that protect and restore natural and beneficial floodplain functions"

b) 42 U.S. Code Sec. 4121 (12) should be amended to ensure that the definition of natural and beneficial floodplain functions to reflect the best available science which demonstrates that functional floodplains must be connected to rivers, experience variable flows, and have diverse structure and habitat to provide multiple benefits to society (water quality maintenance, flood conveyance and moderation, carbon sequestration, etc.,);

2) Update the CRS Coordinator's Manual and all supporting documents to clearly acknowledge protection and restoration of functional floodplain habitats as co-equal goals of the CRS program.

Responses to Questions Posed in the Request for Information:

Question 2: What are the challenges with the current CRS program that need to be addressed and why? How can the CRS program be modified, expanded, or streamlined to better address or resolve these challenges?

The incentive structure of CRS could be more effective if local governments received incentives for community level actions taken to reduce flood risk and protect and restore natural floodplain functions. Currently, the burden of taking flood risk reduction actions, and the administrative burden of participating in the CRS falls on the local government. Local governments have many competing priorities that they must devote staff resources to, and to some degree these priorities are influenced by the demands of their citizens. The Community Rating System is not a program that most individuals are aware of, and it seems unlikely that many communities hear from their citizens that participation in the program is a high priority. If FEMA wants to encourage more communities to participate in the CRS, and to take additional actions to reduce flood risk and protect and restore floodplain functions, the program should be adapted to provide benefits to local governments.

Question 3: While the CRS program is technically available to all compliant NFIP communities, is access to the CRS program equitable for all communities? If not, what changes to the CRS program could make it more equitable for all communities? How could the CRS program provide better outreach to disadvantaged communities to encourage participation? How could the CRS program provide better outreach to households in disadvantaged communities to encourage participation in the NFIP?

No, access to the CRS program is not equitable for all communities. The administrative burden for the CRS is too great for many communities to participate, particularly for smaller communities, or those with smaller municipal budgets who do not have paid leadership and staff to complete the enrollment and annual renewal requirements. FEMA should explore and implement programmatic reforms that will streamline the administrative requirements and ease the burden on municipal staff. For instance:

* The annual renewal process could be streamlined to reduce the time required by local government staff.

* Allow reimbursement of administrative costs for CRS, and/or for administrative costs to be eligible for hazard mitigation grant programs.

* Develop an online hub for communities to submit their enrollment and renewal paperwork. This approach would also allow for comprehensive tracking of CRS activities by participating communities across the nation.

* Encourage diverse job development in the hazard mitigation field of practice in participating communities.

Question 4: How could the CRS program better promote and/or incentivize improved reduction of future conditions and risks such as climate change, sea-level rise, urban flooding, and future development?

In addition to the recommendations above to center protection and restoration of natural floodplain functions in the CRS program, the CRS program could better promote and/or incentivize improved reduction of future conditions and risks such as climate change by:

* Adding a programmatic goal of improved resilience to future conditions like climate change.

* Providing credits for climate resilience and adaptation planning, local compliance with the federal flood risk management standard, and identification and implementation of projects that adapt floodplain infrastructure to higher standards.

* Providing additional credits to communities who restore and/or enhance floodplain functions to address specific climate change threats (i.e., flood and drought resilience, and habitat connectivity to support species migration)

Question 8: What existing sources of data can FEMA leverage to better assist communities to assess, communicate, and drive the reduction of current and future flood risk? Can FEMA leverage new technologies to modify or streamline the CRS program? If so, what are they and how can FEMA use new technologies to achieve the statutory objectives of the program?

The CRS program issues credits to communities that produce maps of the natural functions and resources of their flood-prone areas. Unfortunately, many communities are ill-equipped to produce maps of floodplain and wetland functions, generally due to a lack of expertise, a lack of understanding regarding the importance of floodplain functions, and/or a lack of funding. With the significant increases in flooding events, both natural disasters and "nuisance" flooding, communities find themselves embracing the old "tried and true" structural methods for flood control such as sea walls and groins, as they are well understood strategies, supported by existing federal programs and regulations.

Floodplains exist within a greater watershed context and the functions that they provide vary depending on the condition of the floodplain and other land uses within the watershed. As such, floodplain maps that provide data on floodplain functions and condition need to be created on a watershed scale. However, FEMA's Risk Mapping, Assessment and Planning (MAP) program generally only includes data on elevation, hydrology, infrastructure, hydraulics and land use for the purpose of informing NFIP rates, not data on natural ecosystem functions which can reduce flooding, improve water quality, or consider significant habitat which might be critical for endangered or threatened species.

Currently there are efforts among several other federal agencies, to create maps and data on wetland and floodplain functions, such as the U.S. Forest Service's National Riparian Inventory Base Map (which recognizes the dynamic and transitional nature of riparian areas by accounting for hydrologic, geomorphic and vegetation data as inputs) and the hydrogeomorphic approach (HGM) used by the U.S. Army Corps of Engineers for compensatory mitigation projects to ensure that any impacted wetland or stream functions are replaced by the mitigation project. Additionally, many states are using the U.S. Fish and Wildlife Service's National Wetlands Inventory (NWI) data paired with LLWW descriptors (landscape position, landform, waterflow path, and water body type) to predict wetland functions on the landscape.

FEMA's floodplain management efforts would be dramatically improved if they were informed by geospatial data that illustrates floodplain functions (including wetlands, coastlines, streams and rivers) as dynamic, hydrologically connected components of a larger watershed to support more strategic local land use decisions (e.g., restoration and/or open space conservation priorities), reducing flood risk while increasing co-benefits such as recreation, clean drinking water, habitat for threatened and endangered species, and avoided damage costs.

Question 10: What successful approaches have been taken by State, local, Tribal, and Territorial governments that the CRS program could leverage to better support community participation in the CRS program? In what ways could the CRS program better support States, Tribes, Territories and Regions, and flood control and water management districts to improve community participation in the program? What innovative changes could the CRS program make to be simpler for communities to join and maintain participation?

FEMA should look to states, tribes, territories and regions that have successful multi-benefit programs that prioritize restoration of functional floodplains. There is a growing list of state and regional programs that are requiring or encouraging river communities to recognize the dynamic nature of rivers, streams and floodplains and manage their development to safely convey flood waters. Examples of programs include:

* Washington's Floodplains by Design

* The Central Valley Flood Protection Plan

* Vermont Rivers Program & Functioning Floodplain Initiative

* Sierra Nevada Headwaters Partnership

* Oregon Stream Function Assessment Method (SFAM) and the Oregon Rapid Wetland Assessment Protocol (ORWAP), support a statewide function- and watershed- based aquatic resources mitigation framework.

Question 11: How could the CRS program provide better outreach to disadvantaged communities to encourage participation? How could the CRS program provide better outreach to households in disadvantaged communities to encourage participation in the NFIP?

As mentioned previously, the administrative burden of the CRS is frequently the reason that communities do not participate in the CRS program, particularly if they do not have paid staff and technical resources. FEMA must both reduce the administrative burden in addition to fostering development of staff and technical resources in these communities. FEMA can support staff development by:

* Incentivizing states and regional planning commissions and/or regional councils of government to foster regional staffing positions that assist communities with NFIP compliance and CRS participation requirements.

* Partnering with agencies and organizations that have connections to households in disadvantaged communities such as HUD, HBCU, and BIA.

* Directly supporting staffing needs through FEMA grant programs.

Thank you for the opportunity to provide comments on the Community Rating System. We look forward to seeing significant improvements to the National Flood Insurance Program and CRS that will improve resilience to climate change, address inequities in flood risk reduction, and protect and restore natural floodplain functions across the nation.

Sincerely,

Eileen Shader, Director, River Restoration, American Rivers

Marla J. Stelk, Executive Director, Association of State Wetland Managers

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Footnotes:

1/ Request for Information on the National Flood Insurance Program's Floodplain Management Standards for Land Management and Use, and an Assessment of the Program's Impact on Threatened and Endangered Species and Their Habitats, Federal Emergency Management Agency. 86 FR 56713. (10/12/2021).https://www.federalregister.gov/documents/2021/10/12/2021-22152/request-for-information-on-the-national-flood-insurance-programs-floodplain-management-standards-for

2/ Task Force on the Natural and Beneficial Functions of the Floodplain. "The Natural and Beneficial Functions of Floodplains: Reducing Flood Losses By Protecting and Restoring the Floodplain Environment". June 2002. https://www.hud.gov/sites/documents/DOC_14217.PDF

3/ Reconnecting Rivers to Floodplains: Returning natural functions to restore rivers and benefit communities, American Rivers. 2016 https://www.americanrivers.org/wp-content/uploads/2016/06/ReconnectingFloodplains_WP_Final.pdf

4/ Task Force on the Natural and Beneficial Functions of the Floodplain. "The Natural and Beneficial Functions of Floodplains: Reducing Flood Losses By Protecting and Restoring the Floodplain Environment". June 2002. https://www.hud.gov/sites/documents/DOC_14217.PDF

5/ "Frequently Asked Questions Property Acquisitions for Open Space". FEMA, Federal Insurance and Mitigation Administration. https://www.pema.pa.gov/Mitigation/Grants-Projects/Documents/FEMA-Property-Acquisitions-Open-Space-FAQ.pdf

6/ National Research Council 2009. Urban Stormwater Management in the United States. Washington, DC: The National Academies Press. https://doi.org/10.17226/12465.

7/ 42 U.S. Code Sec. 4022(b) https://www.law.cornell.edu/uscode/text/42/4022

8/ National Flood Insurance Program Community Rating System Coordinator's Manual, FEMA. FIA-15/2017. https://www.fema.gov/sites/default/files/documents/fema_community-rating-system_coordinators-manual_2017.pdf

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The notice can be viewed at: https://www.regulations.gov/document/FEMA-2021-0021-0001

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