Wash. Ecology Department Issues Public Comment on FEMA Notice

WASHINGTON, Jan. 29 -- Joenne McGerr, program manager for the Shorelands and Environmental Assistance Program at the Washington Department of Ecology, 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 Jan. 25, 2022, and posted on Jan. 26, 2022:

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Thank you for the opportunity to comment on National Flood Insurance Program's Floodplain Management Standards for Land Management and Use under Docket ID: FEMA-2021-0024.

The Department of Ecology has multiple responsibilities in floodplain areas within the State of Washington. Most pertinent of these responsibilities include the following:

* Promotion of flood safety through National Flood Insurance Program implementation and state floodplain management statutes;

* Providing guidance and technical support for implementation of the state's Growth Management Act;

* Issuance of flood protection construction grants for levee and floodwall construction;

* Ensuring that flood management projects and activities are consistent with the Washington Shoreline Management Act;

* Ensuring water quality compliance pursuant to the Clean Water Act, including achievement of water temperatures that support the viability of species listed pursuant to the Endangered Species Act; and,

* Ecological restoration through the Washington State Floodplains by Design program.

* Developing and implementing an integrated Chehalis Basin Strategy for flood damage reduction and habitat improvement.

FEMA has an extraordinarily difficult task in attempting to develop a single set of regulations that apply across an entire nation where demands on floodplains are many and varied. This task is further complicated by the fact that the character of floodplains can differ significantly in different parts of the country. Several factors uniquely influence what floodplain regulations must accomplish in Washington. These include:

* Significant Population Growth

FEMA's funding formula for the CAP-SSSE program has identified Washington as a fast growing state. From April 1, 2019 to April 1, 2020, the state's growth rate has been estimated to be 1.45 percent. While state laws and programs create limits on the expansion of urban growth areas in Western Washington floodplains, NFIP standards continue to allow floodplain development even when a floodplain location is not required. A strong floodplain management framework is needed to prevent inappropriate and risk-prone growth in the state's floodplains. While state law has unique features that help to limit growth in floodways, NFIP standards can facilitate growth outside of floodways. This leaves Washington floodplains susceptible to flood risk impacts from population growth.

* Treaty Obligations

Certain state agencies are operating under a court injunction to correct fish passage problems in much of Western Washington to address treaty obligations with federally recognized tribes. The Washington Department of Transportation has identified 272 culverts that need replacement within the culvert injunction area. There are numerous additional culverts that also need replacement across the state. Meeting the requirements of such injunctions and treaty obligations has been complicated and slowed by NFIP requirements.

* Endangered Species Act

Implementation of the NFIP in the Puget Sound region is subject to unique requirements stemming from a Biological Opinion issued by the National Marine Fisheries Service under the Endangered Species Act. Efforts in the state to restore habitat needed to meet ESA requirements have been slowed by NFIP standards. Existing NFIP requirements have required complex engineering assessments even for small projects that have net flood safety improvements.

General Comments

Optional State Program via Delegated Authority

One approach to designing a national program that addresses regional and localized circumstances is to allow states the option to develop their own floodplain management programs that meet defined floodplain management goals. These goals could be developed jointly by federal agencies that have an interest in floodplain planning, including FEMA, NOAA, and the EPA. States with experience in developing delegated authority programs should also be able to contribute to establishing the programs high level goals. The three federal agencies could jointly review and approve qualified state regulatory plans. Once approved, the state would implement the plan. CAP-SSSE funding would still be available, although the funding formula would need to be adjusted slightly. The value of an optional delegated authority approach will be seen at several points in these comments.

Goals that would need to be considered include:

1. Building Safety. An approved state plan would likely need to meet the national minimums for building elevation, elevation of mechanical equipment, flood venting, building materials and construction techniques. The initial petition for rule-making from Association of State Floodplain Managers (ASFPM) and the Natural Resources Defense Council (NRDC) suggested stronger building standards. States utilizing optional delegated authority will likely adopt building safety standards beyond the minimum requirements. We note that in Washington, the freeboard requirements in the I-codes are currently being implemented as minimum standards.

2. Utility standards. Minimum standards for utilities will continue to be necessary. That utilities be waterproof or elevated above the design flood elevation will continue to be important.

3. Floodways and Flood Flow Pathways. While flood flow paths need to be preserved, states should have the option to manage and limit the change in flood elevation that development causes. The goal would likely include a maximum cumulative rise level. However the approach for implementing the standard would be designed by the state. The primary goal of floodways is to maintain a flood pathway while allowing a state to allow uses necessary to meet public obligations such as flood risk prevention, treaty obligations, and enhancement of habitat for ESA listed species. Notice requirements for flow path changes should be identified. Existing state standards provide support for flood safety could be considered.

4. Infrastructure Standards. States should develop infrastructure resiliency standards. The standards should focus on resiliency without adverse impacts to other floodplain uses. Thus, the standard will articulate the design flood that the infrastructure should be resilient against. This standard will need to be broader than simply an elevation standard since elevating some infrastructure can cause adverse effects on nearby uses.

This standard could classify infrastructure based on the criticality of the asset (e.g., lifeline interstate, hospital, etc., as compared to a shed located on private property). After a multidisciplinary team has assessed and mapped identified hazards in the watershed, infrastructure assets located within the flood and erosion hazards should be identified where their vulnerability to natural hazards can be assessed. A standard that assesses variability in both flood flows (e.g., flood elevation and inundation extent hazards) and erosion rates (erosion hazard) should be utilized.

5. Coastal V Zone Standards. The principles and requirements of the existing V Zone standards should be included. Additional freeboard is likely needed. The provisions should continue to not allow fill or grading of sand dunes in V-zones.

6. Erosion and mudflow Requirements. Meet the goals of 44 CFR 60.4 and .5. States could have the option to adopt additional requirements relating to channel migration or post-wildfire flood risk.

7. Environmental Standards. NFIP standards should support ecological restoration and maintaining ecological functions. The state should identify ecological functions being performed and incorporate protection and enhancement of those ecological functions into their planning and regulations.

8. Floodplain Land Uses. NFIP goals should allow states to recognize that certain land uses require floodplain locations. This goal could discourage land uses that do not have an intrinsic need for a floodplain attribute. States may be able to develop unique approaches that both supports flood safety and land uses that need floodplain locations.

The state program option would probably look similar to delegated programs such as the Coastal Zone Management Program for states that wish to participate.

View full comment at https://downloads.regulations.gov/FEMA-2021-0024-0231/attachment_1.pdf

Sincerely,

Joenne McGerr

Program Manager

Shorelands and Environmental Assistance Program

cc: Chad Berginnis, Executive Director, Association of State Floodplain Managers

Brynne Walker, Chair, Northwest Floodplain Management Association

Brandon Parsons, Associate Director, American Rivers

Morgan Wilson, Governor's Office

Julie Heilman, Department of Transportation

Dave Anderson, Director, Department of Commerce

Nicole Czarnomski, Department of Fish and Wildlife

Stacey McClain, Washington Emergency Management Division

Craig Bill, Governor's Office of Indian Affairs

Laura Watson, Director, Department of Ecology

Diane Clifford, Department of Ecology

Sharlett Mena, Department of Ecology

Tyson Oreiro, Department of Ecology

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

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