CHAPTER 50

FLOOD PREVENTION AND PROTECTION ASSISTANCE FUND (REPEALED)

Part I

General Information

4VAC5-50-10. Definitions. (Repealed.)

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Department" means the Department of Conservation and Recreation.

"Director" means the Director of the Department of Conservation and Recreation.

"Flood prevention or protection" means the construction of dams, levees, flood walls, channel improvements or diversions, local flood proofing, evacuation of flood-prone areas or land use controls which reduce or mitigate damage from flooding.

"Flood prevention or protection studies" means hydraulic and hydrologic studies of flood plains with historic and predicted floods, the assessment of flood risk and the development of strategies to prevent or mitigate damage from flooding.

"Fund" or "revolving fund" means the Flood Prevention and Protection Assistance Fund, established pursuant to Article 1.2 (§10.1-603.16 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia.

"Local funds" means cash provided for project or study implementation that is not derived from federal or state grants or loans.

"Local public body" means any city, county, town, water authority, service authority or special taxing district.

"Study,""project," or "activity" means those flood prevention or protection measures carried out by the sponsoring local public body that require the provision of nonfederal funds to support the federal effort.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §1.1, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-20. Authority. (Repealed.)

A. Section 10.1-603.19 of the Code of Virginia authorizes the director to make loans and grants from the fund to any local public body for the purpose of assisting the local public body in the development and implementation of flood prevention or protection projects, or for flood prevention or protection studies.

B. Section 10.1-603.18 of the Code of Virginia authorizes the director to promulgate regulations for the administration of the fund.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §1.2, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-30. Purpose. (Repealed.)

The purpose of this chapter is to ensure the proper administration of the fund through the establishment of policies, criteria, conditions, and procedures for awarding loans and grants from the fund to local public bodies.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §1.3, eff. May 9, 1990; repealed, Virginia Register Volume 24, Issue 17, eff. May 28, 2008.

Part II

Eligible Studies, Projects, and Activities

4VAC5-50-40. Introduction. (Repealed.)

Loans and grants from the fund shall be made for the purpose of assisting local public bodies in providing matching funds for flood prevention or protection studies or flood prevention or protection projects and activities.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §2.1, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-50. Eligible flood prevention or protection studies. (Repealed.)

Flood prevention or protection studies that are eligible for loans and grants from the fund are those that provide information on historic or predicted flood events; to otherwise assist in the assessment of flood risks; or to provide information, support and assistance in the development of strategies and plans to prevent or mitigate damage from flooding, including protection of the environment. Eligible flood prevention or protection studies include, but are not limited to, the following:

1. U.S. Army Corps of Engineers water resource development studies specifically authorized by Congress and those studies conducted under the Continuing Authorities program, including, but not limited to, §205, Flood Control Act of 1948, as amended (Small Flood Control Projects) (33 USC §701s); §208, Flood Control Act of 1954, as amended (Snagging and Clearing of Stream Channels) (33 USC §701g); §206 of the Flood Control Act of 1960 (Floodplain Management Services) (33 USC §709a) for provision of floodplain information studies and reports, including restudies; and §22 of the Water Resources Development Act of 1974 (Technical Assistance to States) (42 USC §1961d).

2. U.S. Soil Conservation Service water resources development studies under the small watershed protection program (Watershed Protection and Flood Prevention Act of 1954 (Pub. L. 83-566) (16 USC §1001-1007) and Flood Control Act of 1944 (Pub. L. 78-534) (33 USC §701-1); the River Basin Program (Flood Control Act of 1944 (Pub. L. 78-534) (33 USC §701-1), including floodplain management studies; and the Resource Conservation and Development Program (Pub. L. 88-703, §102 of the Flood and Agriculture Act of 1962).

3. Federal Emergency Management Agency flood insurance studies and restudies and studies required to design and develop disaster preparedness and response programs.

4. Tennessee Valley Authority assisted local flood damage reduction and floodplain protection studies including the provision of floodplain information.

5. National Weather Service studies of the feasibility of installing local flood observation and warning systems.

6. U.S. Geological Survey stream flow information on water gauge heights, discharge runoff, historic flood peaks, flood travel times and other information needed for planning.

7. U.S. Department of the Interior, Fish and Wildlife Service environmental studies and impact assessments under the Fish and Wildlife Coordination Act (16 USC §661-668), National Environmental Policy Act (42 USC §4321-4370a), and the Clean Water Act (§404) (33 USC §1251-1376).

8. U.S. Department of the Interior, National Park Service assistance to local public bodies in carrying out river corridor assessments and in developing plans to protect greenway values through its State and Local Rivers Conservation Assistance Program.

9. U.S. Environmental Protection Agency technical assistance, through its wetlands program, to local public bodies for maintaining or restoring the natural and beneficial values of floodplains.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §2.2, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-60. Eligible flood prevention or protection projects and activities. (Repealed.)

Flood prevention or protection projects and activities that are eligible for loans and grants from the fund are those that reduce or mitigate damage from flooding, such as the construction of dams, levees and floodwalls; channel modifications; flow diversions; flood proofing or retrofitting of structures; flood warning and response systems; floodplain evacuation and relocation; redevelopment, acquisition and open space use; information and education programs; post-flood mitigation; or development and adoption of land use controls. Eligible flood prevention or protection projects and activities include, but are not limited to, the following:

1. U.S. Army Corps of Engineers water resources development projects and activities carried out under the legislation cited under subdivision 1 of 4VAC50-40-50.

2. U.S. Natural Resources Conservation Service water resource development projects and activities carried out under the programs cited under subdivision 2 of 4VAC50-40-50.

3. Federal Emergency Management Agency disaster preparedness assistance program, under §201, Pub. L. 93-288, as amended (42 USC §5131), to assist communities in the preparation of disaster preparedness programs; acquisition of flood damaged properties under §1362 of the National Flood Insurance Act of 1968 (Pub. L. 90-448) (42 USC §4103); and other post-flood hazard mitigation measures under §404, Pub. L. 100-707 (12 USC §1715l).

4. Tennessee Valley Authority assisted local flood damage reduction and floodplain protection projects.

5. National Weather Service local flood warning systems including the Integrated Flood Observing and Warning System (IFLOWS).

6. U.S. Department of the Interior, Fish and Wildlife Service consultation and recommendations for environmental protection and mitigation measures resulting from a proposed project or activity.

7. U.S. Department of the Interior, National Park Service assistance in carrying out plans to protect river corridor greenways through its State and Local Rivers Conservation Assistance Program.

8. U.S. Environmental Protection Agency activities to maintain floodplain natural resources and to restore degraded resources.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §2.3, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-70. Ineligible activities. (Repealed.)

Activities that are not eligible for loans and grants from the fund are:

1. Operation and maintenance of flood prevention or protection projects, whether partially funded under the fund or previously installed or completed by the local public body, with or without assistance from a federal agency;

2. Direct or indirect support of local personnel or any other operating expenses of the local public body; and

3. Studies, projects or activities whose primary purpose is not flood prevention or protection (e.g., erosion control).

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §2.4, eff. May 9, 1990; repealed, Virginia Register Volume 24, Issue 17, eff. May 28, 2008.

Part III

Limitations and Conditions for Loans and Grants

4VAC5-50-80. Conditions and limitations for loans. (Repealed.)

A. Loans from the fund shall be the primary means for providing assistance to local public bodies under this chapter in order to keep the fund viable.

B. No loan from the fund shall be for a period in excess of 20 years.

C. Each loan shall bear interest at the rate of 3.0% annually.

D. Previous obligations incurred by a local public body under written agreements and assurances to provide its share of nonfederal funds, which have not been fulfilled or already obligated in the local budget, are eligible loan items.

E. A lien shall be created against any real or personal property acquired with the proceeds of a loan from the fund.

F. Any real property interest acquired with a loan from the fund shall be dedicated to public open space and recreation or other compatible uses to prevent reuse incompatible with the flood hazard. The local public body shall either retain ownership of such property interest, or retain a perpetual floodplain open space easement which limits the use of such property to flood compatible uses.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §3.1, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-90. Conditions and limitations for grants. (Repealed.)

A. Grants from the fund may be made under special circumstances to provide assistance to local public bodies. The director may authorize a grant after examining the fiscal capability of the applicant, including consideration of past studies, projects and activities that have been terminated because of the inability to provide the local share of nonfederal funds.

B. Any real property interest acquired with a grant from the fund shall be dedicated to public open space and recreation or other compatible uses to prevent reuse incompatible with the flood hazard. The local public body shall either retain ownership of such property interest, or retain a perpetual floodplain open space easement which limits the use of such property to flood compatible uses.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §3.2, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-100. Conditions applicable to all loans and grants. (Repealed.)

A. Grants or loans from the fund may match, but shall not exceed the amount of contribution derived from local funds. No grant or loan award, individually or in combination for a single project, shall exceed 25% of the unencumbered balance of the fund as determined at the beginning of the fiscal year.

B. No loan or grant may be authorized under this chapter unless the following conditions exist:

1. An application meeting the requirements of Part IV (4VAC5-50-110 et seq.) of this chapter has been submitted to the director.

2. The local public body agrees, and furnishes assurance, as the director may require, that it will satisfactorily maintain any structure financed, in whole or in part, through the loans or grants provided under this chapter.

3. If a purpose of the requested loan or grant is to acquire real property, the director shall, prior to acting on the request, require satisfactory evidence that the local public body will acquire the real property if the loan or grant is made.

C. In addition to the foregoing conditions the director may require of a local public body such covenants and conditions as the director deems necessary or expedient to further the purpose of the loan or grant. These additional covenants and conditions need not be identical among local public bodies, and may include, without limitation, any or all of the following, as the director deems appropriate:

1. The creation and maintenance of special funds for the repayment of principal and interest on loans, or for other purposes.

2. The granting and recording of liens on, or security interests in, real and personal property to secure repayment of principal and interest on loans.

3. The use of designated depositories for funds pending their expenditure.

4. The establishment of schedules for the disbursement of funds and the completion of projects.

5. The collection of rents, fees and charges from projects.

6. The procurement of insurance.

D. The director may, as he deems appropriate, consent to and approve any modifications in the terms of any loan or grant to any local public body.

E. A local public body is eligible to receive a grant every five years, provided that it has a flood mitigation plan approved by the director and has demonstrated satisfactory evidence of plan implementation. Lacking an approved plan the local public body is eligible for a grant once very 10 years.

F. The director shall award no grant which would reduce the available balance of the fund below $200,000; however, the director may provide a loan from the unencumbered balance of the fund.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §3.3, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

Part IV

Applications for Loans and Grants

4VAC5-50-110. Local public bodies eligible to apply. (Repealed.)

Any city, county, town, water authority, service authority or taxing district serving as a local sponsor and required to provide matching funds for flood prevention or protection studies, projects and other activities may apply for a loan or grant from the fund.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §4.1, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-120. Required conditions before making application. (Repealed.)

Prior to applying to the director the local public body shall:

1. Be participating in the National Flood Insurance Program, so that its residents shall have the opportunity to purchase flood insurance for future flood losses; and have adopted and be administering land-use regulations that, at a minimum, are compatible with the requirements of the National Flood Insurance Program, or be located in a political subdivision meeting the above conditions;

2. Have entered into any necessary written agreement with the federal agency endorsing the study, project or activity, including provisions for cost sharing; or have adopted a resolution of intent to enter into such agreements; and

3. Have formally adopted a resolution requesting assistance from the fund and have satisfactory assurances of local support, funding, property acquisition and use, and project maintenance and management.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §4.2, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-130. Contents of applications. (Repealed.)

A. Each application shall specify whether a loan or grant is being requested, the amount requested, how it will be used, and whether a loan will be considered in lieu of a grant.

B. The application shall further describe in detail:

1. The area to be studied or protected including the population and value of the property to be protected or affected;

2. Historic flooding data and hydrologic and hydraulic studies projecting flood frequency and extent of flooding of future flood events;

3. The proposed study, project or activity to be funded;

4. The planning process involved, including alternative flood prevention and protection measures which were considered and evaluated;

5. Locally significant natural and beneficial floodplain resources and values that will be maintained, enhanced or restored by the proposed activity;

6. The estimated benefit-cost ratio of the project or activity;

7. An assessment of the applicant's ability to provide its share of the cost of the federal flood control study, project or activity, along with its ability to repay a loan from the fund, or in a grant request, sufficient information about the applicant's fiscal capability to enable the director to determine the need for a grant instead of a loan; and

8. Administration of local floodplain management regulations including a copy of the most recent Community Assistance Visit report prepared by or for the Federal Emergency Management Agency, if available.

C. The application shall provide information on the nonfederal funding schedule in sufficient detail for the director to determine the amounts and dates when approved funds would be applied.

D. The application shall include a formally adopted resolution by the local public body requesting assistance from the fund and providing necessary assurances of local support, funding, property acquisition and use, and maintenance and management.

E. The applicant shall attach to the application copies of federal, state and local permits required to implement the proposed study, project or activity that have been issued, or a list of permits that were applied for prior to submittal of the application.

F. Assistance in preparing the application is available from the department upon request.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §4.3, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-140. Application procedures. (Repealed.)

A. The director will consider applications for loans or grants at least semiannually, in September and March of each year. Applications shall be submitted to the director at least 60 days prior to the date when the application will be considered. The applicant shall be notified whether the application is complete within 30 days after it is received. The applicant shall be given not less than 15 days written notice prior to consideration of the application by the director. The applicant shall have an opportunity to discuss the application with the director or his designee.

B. Upon receipt of notice by the director the applicant may submit a written request to delay consideration until a future meeting if more time is needed to prepare to meet with the director or if the situation has changed since the application was submitted.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §4.4, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-150. Review and action by the director. (Repealed.)

A. The director will consider applications using the following criteria:

1. Whether a loan or grant is requested. Loans will be given priority over grants.

2. The applicant's ability to pay for the nonfederal share.

3. The amount of local contributions in relation to requested state funding. Priorities will be given to larger local cash contributions as an indicator of local burden.

4. The level of multijurisdictional involvement in the study, project or activity in terms of joint support, commitments and funding, including joint applications to the director for funding.

5. The extent of prior local effort to deal with the problems addressed in the application and with other flood related problems, as evidenced by other measures which the applicant has implemented (e.g., flood warning system, redevelopment, acquisition, public policies, stormwater management).

6. Whether the proposed study or project provide for permanent solutions to existing flood related problems and minimize the need for additional measures or excessive operation, maintenance and repair.

7. Whether the proposal is designed to prevent a flood related problem rather than solving an existing problem.

8. The anticipated achievement of multiple objectives and benefits such as recreational opportunities, open-space preservation, ecological enhancement, water quality improvements, increased water supply, and other environmental and conservation factors and needs.

9. The number of innovative solutions to local problems that can be transferred and utilized elsewhere in the Commonwealth.

10. The number of past studies, projects and activities that have been terminated solely because of the inability of the applicant to provide the required nonfederal share.

11. The level of commitment to the administration of local floodplain regulations as evidenced by the dates that regulations were initially adopted, as well as by the funding, staffing, administration and enforcement of such regulations.

12. The implementation of other state policies and regulations for flood prevention and protection; for environmental protection; and for control of stormwater runoff affecting the waters, floodplains, wetlands and watersheds of the Commonwealth.

13. The flood history of the area to be studied or protected including the extent of the area; the flood-prone population; the value of flood-risk property to be affected or protected; the magnitude and frequency of past flood events; the resultant flood damages and environmental losses; and the threat to public health, safety, and welfare.

14. The estimated benefit-cost ratio and cost effectiveness, including overall benefits in excess of costs. Priority will be given to those studies, projects, and activities having higher ratios, and substantial indirect costs and direct damages prevented.

15. The total amount of the requested loan or grant. Priority will be given to less capital intensive uses of the fund.

16. The future need for a loan or grant to expand the project to include additional areas. Priority will be given to projects that provide a permanent solution to the problem such as floodplain evacuation and relocation.

17. The likelihood for the provision of the federal share of the costs for the study, project, or activity, including whether federal assistance has already been requested.

18. The expected life or duration of the study, project or activity.

19. The overall benefit to the Commonwealth resulting from the study, project or activity.

20. The percentage of required nonfederal contributions. Priority will be given to studies, projects or activities having a higher percentage of federal contributions.

B. Upon receipt of completed applications and consideration of the above criteria the director shall establish a state priority list semiannually for the use of the fund. Loans and grants shall be commingled on the priority list.

C. The director may authorize payments from the fund and may establish a schedule of payments in accordance with this priority list to help local public bodies meet their share of the nonfederal contributions.

D. All authorizations by the director are subject to the following limitations: (i) the availability of money in the fund; (ii) the percentage of funds that may be allocated for grants; (iii) the amount that may be approved for a particular applicant; and (iv) the total amounts approved for the semiannual period.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §4.5, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-160. Written agreements required for loan or grant recipients. (Repealed.)

Prior to receiving any funds from an approved loan or grant, the local public body shall enter into a written agreement with the director containing such covenants and conditions as the director may require.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §4.6, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.

4VAC5-50-170. Availability of applications. (Repealed.)

A record of each application for a loan or grant and the action taken by the director shall be available for public inspection at the office of the director and shall be presented to the Governor and members of the legislature prior to budgetary sessions of the General Assembly.

Statutory Authority

§10.1-603.18 of the Code of Virginia.

Historical Notes

Derived from VR217-02-00 §4.7, eff. May 9, 1990; amended, Virginia Register Volume 12, Issue 15, eff. May 15, 1996; repealed, Volume 24, Issue 17, eff. May 28, 2008.