Wash. Administrator Wilson Issues Public Comment on FEMA Notice

WASHINGTON, Jan. 29 -- The City of Sumner Administrator Jason Wilson, Washington, 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 and posted on Jan. 26, 2022:

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The City of Sumner appreciates the opportunity to comment regarding FEMA's Request for Information (RFI) regarding potential changes to the NFIP's floodplain management standards and the interface between those NFIP standards and the Endangered Species Act (ESA). The City appreciates FEMA's desire to make the NFIP as effective as it can be at reducing flood risk and damage. The City supports revisions to the NFIP's floodplain development standards that would make it easier to permit floodplain and habitat restoration projects. Otherwise, the City of Sumner already applies numerous regulatory programs within its jurisdiction, including Washington's Growth Management Act and Shoreline Management Act. As a result, the City already regulates its land, including floodplains, to reduce risk and protect endangered species and their habitat, and additional regulations via the NFIP are likely to be redundant or conflicting.

Background regarding the City of Sumner, Washington

The City of Sumner formed in the mid-1800s in the agricultural lands near the south end of Puget Sound in Washington State. More than a century before the inception of the NFIP, families were settling in this area and building homes and farms.

The City has a lengthy and complicated history with the White River, which bisects the City. In the 1930s and 1940s, the Army Corps of Engineers constructed the Mud Mountain Dam on the White River approximately 23 river miles upstream of the City, to control flows and reduce flood risk in Sumner and other cities along the White River and the Puyallup River. See https://www.nws.usace.army.mil/Missions/Civil-Works/Locks-and-Dams/Mud-Mountain-Dam/. Thereafter, the adjoining counties (King County and Pierce County) periodically dredged the White River through Sumner to maintain flow capacity. In the late 1990s, however, several anadromous fish species (e.g., chinook salmon and bull trout) were listed as threatened or endangered under the ESA, and dredging stopped. Since then, sand and sediment from Mt. Rainier (the headwaters of the White River) have continued to travel down the river infilling the riverbed, particularly at the north end of the City near the county line between King and Pierce counties and increasing flood risk.

Sumner and the NFIP

The City of Sumner joined the NFIP around 1980. FEMA produced the first Flood Insurance Rate Maps (FIRMs) for the City of Sumner in 1987. Those maps classified the agricultural fields on the east side of the White River as within the zones A2, A3, B and C with base flood elevations (BFEs) from 54 to 70 feet (NAVD 29). See Panels 53053C0213C, 53053C0351C and 53053C0353C. More recently, FEMA updated the SFHA maps for Sumner. Under the revised maps (2017), FEMA substantially expanded by the horizontal and vertical scope of the mapped floodplain, set the BFEs approximately 3 feet higher than the 1987 maps, and designated a wide floodway through the center of the northern portion of the City. See FIRM Panels 53053C0213E, 53053C0351E and 53053C0353E.

Sumner's White River Restoration Project (WRRP)

Recognizing the increasing flood risk in the City (due to the continued aggradation of the White River and restrictions on dredging), the City of Sumner has begun work in the last decade on designing, permitting, funding and constructing a large floodplain habitat restoration project known as the White River Restoration Project (WRRP). The WRRP will improve aquatic habitat and water quality and reduce flood risk by reconnecting the White River with adjoining portions of the floodplain. The project will expand flood storage and reestablish geomorphic processes in this channelized reach of the White River over approximately 203 acres. The project will enable frequent activation of the floodplain, reestablish habitat-forming processes, and maintain those habitats over time, even with continued channel aggradation and climate change.

The WRRP will restore native vegetation, including forested wetland, mixed coniferous and deciduous upland forest, and scrub-shrub plant communities. The proposed stream and floodplain restoration will improve rearing opportunities for ESA-listed salmonids by providing slower water habitats, increased channel complexity, increased number and depths of pools, and more frequently engaged floodplain food webs. The new channel network will be able to adjust to current and future sediment loads.

The WRRP will lower the existing floodplain through grading to restore a more natural channel and floodplain configuration and allow for significant expansion of aquatic habitats. The new floodplain configuration will allow for dynamic channel processes to occur while maintaining stable boundaries to protect adjacent developed areas. New, more natural, channels will be installed as part of the project.

Twenty-one Engineered Log Jams (ELJs) will be installed in the White River channel and new side channels to reverse channel simplification and restore geomorphic and habitat processes. Approximately 163 acres will be planted with native trees, shrubs, and groundcover species indicative of the mixed coniferous and deciduous forested floodplain condition of the lower White River valley to restore native floodplain and riparian plant communities.

The City began design for the WRRP in 2014, and permitting and environmental review in 2020. The WRRP is subject to multiple layers of review. The City is hoping to receive the necessary federal (Clean Water Act, Section 404; ESA Section 7(a)(2) consultation; NHPA Section 106 consultation), state (Washington State Department of Ecology water quality certification; Hydraulic Project Approval), and local (shoreline, critical areas, floodplain, grading permits) authorizations by the end of 2022 so that it may begin construction during the "fish window" in 2023.

Sumner's Responses to FEMA's RFI

Does the NFIP incentivize floodplain development?

That has not been Sumner's experience. Development in Sumner's "floodplain" areas long predates the inception of the NFIP. Moreover, because most of the development in the Sumner floodplain is relatively high value commercial and industrial (value substantially in excess of the NFIP's insurance limits), Sumner is not aware of those property owners relying on the NFIP for flood insurance. As a result, the availability of insurance through the NFIP has not been an incentive to develop in the floodplain. Instead, development in Sumner's floodplains has been a natural offshoot of the fact that populations have historically developed around waterbodies (rivers, coasts) and those area have become economic centers.

Rather than making it easier to develop these properties, the NFIP's floodplain management standards, combined with the ever-evolving FIRMs, have made it progressively more difficult to develop property that for more than a century and until recently numerous government agencies (from the Corps down to the City) understood to be appropriate for development. In fact, as FEMA contemplates more restrictive floodplain development standards, the City is left concerned that these new standards will undermine a significant portion of the City's economic foundation, including our Manufacturing and Industrial Center (MIC). Details regarding the City's Manufacturing and Industrial Center can be found at https://sumnerwa.gov/wp-content/uploads/2018/07/Ex_A_Sumner-Pacific-MICSubarea-Plan-DRAFT-2018-0705.pdf. As part of its minimum floodplain development standards, FEMA should recognize historic patterns of development, and avoid imposing a significant rule changes that render portions of the City unusable/unbuildable in the future.

Are there any NFIP minimum floodplain management standards that currently cause hardship, conflict, confusion or create an economic or financial burden (Question 10)? Are there current regulatory provisions that present recurring difficulties for local and State officials implementing NFIP minimum floodplain standards and if so, what improvements should be made (Question 13)?

Yes, the City spent more than $100,000 on floodplain mapping efforts to try to understand and correct FEMA's substantially outdated FIRMs and confirm that the WRRP will not create a rise anywhere in the floodway (44 CFR Sec.60.12). Had FEMA kept its floodplain maps more up to date and permitted restoration projects to show a "no net rise" (rather than an absolute "no rise"), the City could likely have saved thousands of dollars and several years on the design and implementation of the WRRP, which will produce both substantial flood risk reduction benefits and restore significant habitat for ESA-listed salmonids.

The City strongly encourages FEMA to exempt floodplain restoration projects from the NFIP's floodplain development standards, or, at a minimum, work with those communities implementing floodplain restoration projects to develop functional and appropriate review standards for restoration projects. It is not necessary or appropriate for restoration projects to be subject to the same standards as traditional commercial or residential developments. This is all the more true as FEMA contemplates increasing the types and degree of restrictions as part of an update to the minimum standards.

Are there current regulatory provisions that create duplication, overlap, complexity, or inconsistent requirements or unintended inequities with other FEMA or other Federal programs?

Yes, most large scale projects in the floodplain in western Washington also involve wetlands or other waters of the US. As a result, these projects also trigger review under the Section 404 of the Clean Water Act (CWA). The combination of the NFIP and CWA standards occasionally present impediments to environmentally beneficial floodplain projects. For example, set back levees, which provide flood protection while opening up a wider floodplain habitat area, are often restricted due to the presence of a wetland in the proposed levee footprint. The City is concerned that as FEMA contemplates expanding the restrictions under the NFIP's floodplain development standards, more inconsistencies and complexities will be generated that will make it even harder to permit these already complex projects. To the extent FEMA is contemplating expanding its minimum floodplain development standards to be more restrictive, Sumner requests and encourages FEMA to coordinate with the Army Corps of Engineers and the Environmental Protection Agency (both responsible for Section 404 of the CWA) to develop one set of standards that harmonize the requirements and permitting processes across the NFIP and CWA.

Further, because most larger floodplain projects also trigger CWA Section 404 jurisdiction, those projects also go through some form of ESA Section 7 consultation. At the same time, due to the 2008 Biological Opinion issued by the National Marine Fisheries Service (NMFS) regarding the implementation of the NFIP in the Puget Sound, Sumner and more than 100 other local communities have been attempting for the last decade to understand what NMFS's Biological Opinion means (particularly the ill-defined "no adverse effect" standard), and what FEMA intends to require for continued participation in the NFIP. Again, the City has spent tens of thousands of dollars trying to decipher the provisions and determine what is actually required - all without any financial support from FEMA or the federal government.

What additional considerations should FEMA incorporate into the NFIP minimum floodplain management standards to promote the protection and conservation of T&E species and their designated habitat?

The City encourages FEMA to continue to utilize the Community Rating System (CRS) to create incentives for communities to protect ESA-listed species and designated habitat. Pierce County, in which Sumner is located, and King County, the neighboring county to the north, both participate in the CRS (both Class 2). Rather than spending considerable time and resource developing, implementing - and likely litigating over - a new program to integrate ESA considerations into the NFIP, FEMA should focus its efforts on encouraging more communities to enter the CRS. As part of that, FEMA should expand the CRS's incentives related to the protection of ESA-listed species and habitat and give communities credit for their existing regulations and programs, such as regulations under Washington's Growth Management Act and Shoreline Management Act, mentioned below.

Question 8 in the RFI suggests that FEMA may be considering applying a "no adverse impact" standard nationwide to address ESA-concerns. This standard appears in NMFS' 2008 Biological Opinion and has not proven to be a helpful or successful approach in Washington to our knowledge. Instead, it has created confusion amongst our planning staff and permit applicants who have had difficulty deciphering what it means and applying it to particular development projects.

Further, as noted above, the majority of larger projects in the floodplain also trigger one or more federal authorizations, which also require direct consultation with either NMFS or USFWS under Section 7(a)(2) or the ESA. As a result, creating a stand alone ESA standard as part of the NFIP is likely to create duplicative and redundant requirements. Similarly, Sumner is required under Washington law to plan under the Growth Management Act (Chapter 36.70A RCW) and the Shoreline Management Act (Chapter 90.58 RCW). Both of these statutory schemes incorporate numerous requirements aimed at protecting threatened and endangered species and habitat. These standards apply to all projects in the City, not just larger project that also have a federal authorization or nexus. Rather than attempting to develop a national NFIP standard, FEMA should defer to local governments who are familiar with their landscapes and communities to develop and implement appropriate development standards.

To the extent FEMA is intent on integrating the ESA into the NFIP is some way, FEMA could consider requiring a "no take statement" (like that contemplated in FEMA's 2018 Record of Decision and Nationwide Programmatic EIS) as part of certain developments - e.g., 10 + lot subdivisions, or commercial or industrial developments exceeding 1 acre in size. However, applying some form of ESA requirement for every floodplain permit is simply unnecessary and adds unwarranted review time and cost (both for the applicant and the jurisdiction).

Should FEMA increase the elevation requirements for development in the floodplain (Question 2)?

Sumner understands and appreciates FEMA's consideration of higher elevation standards. At this point, however, Sumner would encourage FEMA to leave any increases in those standards to the discretion of the NFIP-participating jurisdictions. FEMA has no way to know how changing the elevation standards in the floodplain many trigger unintended consequences for the rest of the community - i.e., requiring buildings and structures to elevate above the BFE can create conflicts with adjoining roads and infrastructure that must be reconciled at substantial expense. Again, FEMA could encourage local communities as they plan for the future to further elevate their infrastructure but requiring that as part of the NFIP's minimum floodplain development standards seems likely to create mismatches between development and adjoining infrastructure.

Should FEMA consider expanding the regulated floodplain or take a more risk informed approach to floodplain designation (Question 4)?

It has been the City's experience that FEMA currently lacks the resources to fully implement its existing mapping standards and programs. While FEMA updated the FIRMs for Sumner in 2017, those maps were out of date before they were finalized, in large part because they fail to capture changes in topography and bathymetry that are ongoing in a dynamic river system like the White River. Rather than attempting to expand FEMA's jurisdiction to include new areas or developing predictive maps, the City encourages FEMA to develop a more efficient and cooperative mapping program that enables FEMA to keep its maps up to date with existing conditions. As part of this, FEMA should take advantage of the significant floodplain mapping and modelling that communities, like Sumner, are constantly completing to better understand their flood risk. Where the river or coastal system is very dynamic, FEMA should abandon-requirements to applicants to first recreate FEMA's out of date model before reflecting then current circumstances. Further, often times maps are held up for years in appeals. FEMA should identify a way for the unappealed portion of a map in a jurisdiction to go into effect while the appeal is pending. The current practice of holding the FIRMs for a region or watershed until all appeals have been resolved contributes to the problem of FEMA's FIRMs often being outdated on day one.

Finally, FEMA needs to find a way to better fix its floodplain maps. One of the things that has been most difficult for Sumner - and other cities in the region - has been the evolution of its FIRMs. The SHFA boundary is drawn in one locate in the mid-1980s and has been steadily creeping outwards, capturing and triggering regulation of larger and larger areas. The City acknowledges that these changes reflect changes in flood risk, but it is not feasible to plan and maintain a City when the regulatory foundation is constantly shifting.

The City of Sumner thanks FEMA in advance for its consideration of these comments. To the extent that FEMA considers developing new or different NFIP floodplain management standards, the City requests that FEMA have further direct engagements with the more than 20,000 NFIP-participating jurisdictions around the country to ensure that FEMA considers the unique characteristics of each region. FEMA simply should not develop any proposed regulations without significant additional direct engagement with those who would become subject to those standards.

Sincerely,

Jason Wilson

City Administrator

[email protected]

253.299.5501

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

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