University of Minnesota Issue Public Comment on FEMA Notice

WASHINGTON, Dec. 7 -- The University of Minnesota, Minneapolis, has issued a public comment on the Federal Emergency Management Agency notice entitled "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". The comment was written on Dec. 3, 2021, and posted on Dec. 6, 2021:

The comment was co-signed by Maysa Alquaisi, Sarah Bauer, Mike Nottke and Kendall Prior, law students.

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We are a group of four law students currently enrolled in an environmental law course at the University of Minnesota Law School. As part of the course, we studied your agency and created a project about the intersection of disaster mitigation and environmental law. As individuals who have lived through natural disasters, we also have a personal interest in the development of new Floodplain Management Standards. Our comments below reflect three major areas of interest to us detailed in FEMA's RFI:

* Mitigation as a means to reduce, rather than exacerbate, economic and racial inequity (Q5, Q11)

* Changes to Floodplain Management which encourage working work with, rather than fighting, natural ecosystems, including habitat protection for threatened and endangered species (Q12, Q4, Q17, Q7, Q6)

* Changes to the state-level mitigation planning process to include more voices from the community (Q18)

A) Mitigation Should be a Means to Reduce, Rather than Exacerbate, Economic and Racial Inequity.

(Q5) Funds for managed retreat should be directed 1) to communities and individuals who cannot afford to accomplish managed retreat on their own, and/or 2) individuals and communities situated in risky areas who cannot afford to implement mitigation strategies to lower their flood insurance rates. While FEMA has some mitigation grants available to individuals and families that live in flood-prone areas, many do not have the means to contribute any substantial amount necessary for workable mitigation measures. For example, it is costly and requires a family to stay out of the house during construction when the property is being lifted above sea level on stilts.

Discontinuing flood insurance for repetitive loss properties also disproportionately affects BIPOC individuals and families, as well as those near the poverty line who have no option but to rebuild in the same location. If a community contains repetitive loss properties, those properties are devalued, their owners have lost equity in their homes, the community loses its tax base, and the community shrinks. Targeted funding should therefore be provided for managed retreat to compensate the most at-need individuals to begin a life in a less risky home of their choosing, and so communities can rebuild in a way that makes the most sense for them. By targeting lower income individuals and families for managed retreat, this would also increase the likelihood of taxpayer dollars going directly to those in need of assistance, rather than corporations and landlords who profit off simply rebuilding properties in flood-prone areas rather than utilizing proper mitigation methods. This is a matter of reducing economic inequality after a disaster, as well as an environmental imperative for communities blighted by these properties.

Like many other forms of insurance, the NFIP requires available funds for an individual or family to be able to contribute and receive benefits. If an individual or family cannot pay the NFIP rates, they will be forced to opt out of insuring their property against flooding. Without the NFIP, any damage to their property incurred during a natural disaster will fall on FEMA and other community resources to pay for the damage; the system thus cyclically exacerbates economic and racial inequity for those who cannot afford to mitigate damage through the NFIP. At FEMA's November 15 RFI informational meeting, a commenter discussed how often people must decide between getting medicine or paying for their flood insurance; this should not be a decision anyone should have to make. Something must be done to lower the cost of payments and promote mitigation so the cost of damage after a natural disaster is far lower. Whether this means restructuring the NFIP to make it more attainable for lower income families or finding ways to more fully subsidize it, FEMA must take action to support American families and prevent flood damage.

Lastly, (Q11) there should absolutely be a universal affirmative obligation on the part of sellers and/or lessors of residential properties to disclose information about flood risk to prospective buyers or lessees. As FEMA knows, flood disclosure policies vary wildly from state to state, with 21 states earning an "F" grade from FEMA's own panel. FEMA's flood maps do not account for climate change, and significant flooding events increasingly impact areas currently deemed to be low-risk. Since FEMA's own resources do not allow homebuyers to make informed decisions about the flood-risk associated with their future property, disclosure should be mandatory. This is not only an important issue of general consumer protection, but also a means to economically protect individuals unable to afford surprise high flood insurance premiums.

B) Changes to Floodplain Management which encourage working with, rather than fighting, natural ecosystems, including protecting the habitats of threatened and endangered species

First, (Q12) FEMA should absolutely base NFIP minimum floodplain standards on future risk and incorporate projections of climate change. (Q4) If areas surrounding an SFHA also experience significant flooding, then flood maps and management standards should reflect that increased risk. Climate change is accelerating, meaning environmental and economic vulnerability to natural disasters will only worsen. It therefore makes no sense to spend money on new structures, or pay to rebuild old ones, using outdated program standards that already fail to protect people and do not reflect reality. Every fifteen dollars spent on relief could be prevented by one dollar on disaster preparedness, including mitigation. FEMA should therefore spend as much money as possible on proactive measures and mitigation.

Second, we believe that FEMA can be doing more to benefit endangered and threatened species. (Q7 and Q6) Removal of the 0.75 threshold for ecosystem benefits in the Benefit Cost Ratio in mitigation project assessments was a great start. We would like FEMA to go farther with this policy by making it even more attractive to build projects incorporating ecosystem benefits. This can be accomplished by: requiring projects to incorporate ecosystem benefits or lower-impact development standards (suggestion 7(e)), give out more grant funding to projects to incorporate ecosystem benefits through existing grant programs, or incorporate ecosystem benefits as a criteria for reduction of flood insurance premiums through the Community Rating System.

We believe FEMA is likely to encounter "takings" challenges to outright prohibition of building in floodplains. However, FEMA could discourage mitigation techniques known to protect individual properties at the expense of wildlife and other property owners, such as (Q17) the use of fill material. FEMA could also increase funding for floodplain buyouts/managed retreat so that structures both a) prone to repeat flooding and b) located in traditional ranges/critical habitat of T&E species return to their natural state. Merely identifying areas critical to T&E species and FEMA's compliance with the Endangered Species Act is clearly not enough for habitat protection. FEMA should exercise its "power of the purse" more aggressively to make building harmful structures less attractive.

C) (Q18) Changes to the State-level Mitigation Planning Process Should Include More Voices from the Community

As of the 2015 release of FEMA's state mitigation planning guidelines, states are encouraged, but not required, to meet with local and tribal governments when executing their mitigation plans.

However, for FEMA to properly make informed decisions on approving mitigation planning, it is imperative that FEMA requires states and local governments to contact and work with affected tribal and local communities.

One effective way to solicit the voices of these communities is having a notice and comment period for mitigation plans that are pending review from FEMA. However, a more proactive approach would require a meeting with tribal and municipal governments prior to the submission of a mitigation plan. In these meetings, local and tribal governments should be given the opportunity to advocate for their communities to be reviewed by FEMA and directly addressed by the state. These localized communities are more familiar and better informed on how to address the hazards at risk. Floodplain strategy is going to differ based on the frequency and likelihood of flooding, the already existing infrastructure, and the economic sustainability of the municipal economy.

The state's role in community planning should not just be a managerial one. The states should listen to the needs and concerns of these communities, then it can enact the mitigation plan that would directly affect these same communities.

In conclusion, we hope to see changes to the program which better serve the goals of environmental and economic justice for the entire community. FEMA is in a better position to accomplish these goals than other agencies and has a huge part to play in our collective response to climate change.

Thank you for considering our comments.

Maysa Alquaisi, Sarah Bauer, Mike Nottke, Kendall Prior

University of Minnesota Law Students, Classes of 2022 and 2023

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The notice can be viewed at https://www.regulations.gov/document/FEMA-2021-0024-0001

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