September 9, 2023
Ms. Angela Davis
Acting Division Director Floodplain Management
Virginia Department of Conservation and Recreation
Division of Dam Safety and Floodplain Management
600 East Main Street, 24th Floor
Richmond, VA 23219
Re: Draft Virginia Floodplain Management Standards for State-Owned Property
Dear Ms. Davis:
On behalf of Wetlands Watch, Southern Environmental Law Center, Environmental Defense Fund, Chesapeake Bay Foundation, Virginia League of Conservation Voters, Virginia Conservation Network, and the Virginia Floodplain Management Association, we appreciate the opportunity to submit comments on the general notice posted on the Virginia Town Hall by the Virginia Department of Conservation and Recreation, Division of Dam Safety and Floodplain Management and entitled “Draft Virginia Floodplain Management Standards for State-Owned Property.” These standards are required to be developed as a result of Code of Virginia §10.1-603 which Governor Youngkin signed on April 12, 2023.
Based on full review of the general notice and the associated floodplain management standards, the following are compiled comments for your consideration:
It would seem given the magnitude and importance of these standards for state-owned facilities, that a 15-day only review period for this general notice is not enough time to properly review all the proposed material and assess its consistency with federal regulation and the Commonwealth’s Executive Orders 45 (November 2018) and 24 (November 2018).
The posting of this general notice for public comment on Virginia Town Hall was a surprise to many and was not disclosed as an item that was forthcoming in floodplain program discussions/meetings with the Virginia Department of Conservation and Recreation, including the recent annual Virginia floodplain coordination meeting of July 28, 2023.
Development of the standards seems to have been performed by using the state floodplain ordinance template. This ordinance is intended for locality use to administrate a floodplain program. It is unclear how this will transform to a state regulation, instead of a local ordinance.
It is unclear how the logistics of performing the plan review and permit issuances needed (procedurally) to meet the requirements of this draft standard will be achieved. In essence, one state agency will be tasked to perform plan review and issue a permit for all other state agency projects. Staffing and workload associated with such a program element could be enormous and there should be information available to the public to know how the plan review and permit intake and processing system will work.
In relation to the above comment, the number of submittals from projects for all other Commonwealth agencies could be astronomical if you consider developments/improvements that occur throughout the state (VDOT, State Parks, Universities and Colleges, Jails and other state institutions, etc.).
In relation to the above comment, it is unclear what qualifications state agency plan review and permit issuance staff would need in order to fulfill the requirements of these standards (planners, engineers, certified floodplain manager, registered professional engineer, etc.) and/or if any of these services would be performed by consultants under contract with the Commonwealth.
In the Article I General Provisions, Section 1.1 (Floodplain Development Standards), Part B of the standards addresses if the site/project is in a non-participating National Flood Insurance Program (NFIP) community. It is unclear what the process is if the site/project is located in a participating NFIP community that has a floodplain management program and floodplain administrator and who would have authority to make required determinations and perform the requirements of the program.
We recommend that the Article I General Provisions, Section 1.2 (Statutory Authorities) include an additional purpose of “preserving and enhancing the natural and beneficial functions of properly-managed floodplains.” This addition will acknowledge references to the value of natural and beneficial functions included in Executive Order 45, which states “[t]he floodplain management policies identified in this Order are intended to avoid unnecessary costs from flooding, to reduce risks to human health, safety, and welfare, and to protect, preserve, and enhance the natural and beneficial uses of properly-managed floodplains to property and development under state ownership.”
Article I, Section 1.3 (Applicability), Part A is the only section which vaguely addresses how VDOT projects will be handled. State-owned facility terminology in the standards could be interpreted to not include those roadway linear projects which are just situated in a right-of-way or easement. It is unclear how new or expansion road projects that are in road rights-of-way or easements, rather than on state-owned land, will be handled. Many road projects are of a linear nature with bridges and culverts and other types of waterway enclosures that intersect with FEMA designated Special Flood Hazard Areas (SFHAs).
In relation to the above comment, if VDOT linear projects in rights-of-way or easements are subject to plan review and permit issuance requirements associated with these standards, the amount of submittals necessary could be significant from a staffing and workload aspect and as mentioned before. There should be information available to the public to know how the plan review and permit intake and processing system would work.
In several instances of the standards, it is indicated that the Commonwealth’s Chief Resilience Officer (CRO) serves to intercede as backup or to settle disputes or appeals to variances, even down to the level of interpreting the boundary of a floodplain. This does not seem prudent. Further, it is unclear whether the CRO would have proper certifications and expertise to perform these tasks or make these types of decisions under the requirements of the National Flood Insurance Program (NFIP).
The standards indicate that determinations and variances are made/issued by the floodplain administrator or CRO. It is also indicated that appeals from such determinations/variances are made to those same individuals. This is not common as usually appeals are made to an established board or commission in a public meeting format. Examples of this are the Commonwealth’s Chesapeake Bay Preservation Area (CBPA) and Virginia Stormwater Management (VSMP) programs. In addition, it is unclear whether the CRO would have property certifications and expertise to determine whether an appeal should be granted.
In regards to Article III, Section 3.1 (Variance Permits and Exemptions), Code of Virginia §10.1-603(C) indicates that a permit may be issued by the Department only if no feasible alternative to development in a floodplain exists. This important precondition to a permit approval should be clearly reflected within the standards; however, it is not clear whether/where it has been incorporated.
In regards to Article III, Section 3.1 (Variance Permits and Exemptions), Part C(2), it is not clear whether all of the numbered considerations/factors listed within this subsection C apply in any particular case. Clarification is necessary. In addition, section C(2) uses the subjective word “unacceptable.” It is unclear who is going to make that determination and what standards they are to use in determining whether the outcomes listed within this section reach a level making them “unacceptable.”
In Article III, Section 3.2 (Activities Exempted), first paragraph it is indicated that “projects that have been determined to have an insignificant effect on flooding characteristics and water conveyances may be exempt from the variance permitting requirement.” First, permit and variance issuances are two different procedures, so use of the term “variance permitting” is confusing. In addition, it is unclear who is going to make the determination as to the above - administrative personnel, technical staff, CFM’s, professional engineer’s, floodplain administrator, CRO, etc.
In Article III, Section 3.2 (Activities Exempted), Part B (Small Projects), it seems that the term “farming” with landscaping and gardening as a minor soil disturbing project is going to be problematic. Farming or agricultural activities, if done by an agency of the Commonwealth or its agent as a project (or its designee by contract), should be its own exemption and not put under the small or minor project category.
There are two Parts D’s and two Part E’s in Article III, Section 3.2 (Activities Exempted).
Consistent with the Commonwealth’s Chesapeake Bay Preservation Area Program (CBPA), Article III, Section 3.2 (Activities Exempted), Part D (Improvements with Location-Specific Functionally Dependent Uses) should probably cite the term “water-dependent” somewhere.
For Article III, Section 3.2 (Activities Exempted), Part E (Placement of Buildings, Structures or Accessory Structures), some of the potentially exempt uses in this list (Items 1 through 8) seem like things that generally should not be located in a floodplain. We recommend reconsidering whether certain uses, such as gas storage tanks, dormitories, museums, and libraries should be included in this list of potentially exempt uses.
In Article III, Section 3.2, Part E (Ground Disturbing Activities), it is understandable why certain ground or land-disturbing activities could be considered exempt, especially if the activity does not include a building or structure on a state-owned land. However, it is confusing as ground or land-disturbing activities are usually necessary as part of site, building and utility construction activities. Clarifications would be helpful in this section. For example, example #3 states “clearing, grading, filling, drilling and mining activities.” Site work for building construction normally would include clearing, grading and filling; therefore some clarification is necessary.
Language in Article III, Section 3.2 (Activities Exempted), Part H is a bit confusing in that if issuance of a variance would increase the risk to life and property, then other provisions of these standards - such as Section 3.1(C)(2) and Section 3.1(F)(2) - would seem to indicate that such a variance shall not be issued. Also it is unclear if the notification as required in this section H is associated with a denial of a variance. If so, we recommend clarifying the provision to read “The Floodplain Administrator shall notify the applicant of a variance permit, Director of DGS and Director of DCR, in writing that a variance application has been denied because the issuance of a variance to construct a building with the lowest floor elevated below the one percent (1%) annual chance flood height would increase the risks to life and property.”
In Article IV, Section 4.1 (Procedure), we recommend that evidence of wetland or stream impact permits from applicable agencies (US Army Corp. of Engineers, Virginia DEQ, VMRC, etc.) should be required within the list.
There is a fragmented sentence in the last sentence in the second to last paragraph in Article IV, Section 4.1 (Procedure). It says “Upon receipt of a completed variance permit application…”
In Article IV, Section 4.3 (General Floodplain Development Standards), Part G, it is unclear how the provision requiring onsite sewage/septic disposal systems to be located and constructed to avoid impairment and contamination during flooding will be determined and ensured. Clarification may be necessary. In addition, in this section it is stated “In addition to provisions A through H above…”. This should read “A through G” above.
In Article IV, Section 4.4 (Freeboard Standards for New State-Owned Buildings), Part B(3) indicates a freeboard of five (5) feet whereas in Executive Order No. 45 the comparable standard was eight (8) feet. It is unclear what the justification was to propose a lower standard compared to the applicable section in the Executive Order.
In Article IV, Section 4.4 (Freeboard Standards for New State-Owned Buildings), Part B(4) indicates a freeboard of three (3) feet whereas in Executive Order No. 45 the comparable standard was five (5) feet. It is unclear what the justification was to propose a lower standard compared to the applicable section in the Executive Order.
In Article IV, Section 4.4 (Freeboard Standards for New State-Owned Buildings), Sea Level Rise Planning Standards Part A, it is recommended that the NOAA Intermediate-High Scenario curve for Year 2100 be used as the Commonwealth standard for predicting sea level rise as proposed in this section. In this section, it is also unclear how determinations will be made to select or use an alternative “best available data” that could be used to replace the reputable NOAA standard. It is recommended that use of an alternative or best available data be explained or clarified in this section of the standards. Further, it should be clarified that 2017, or most recent release, NOAA Intermediate-High Scenario curve should be used.
In Article IV, Section 4.4 (Freeboard Standards for New State-Owned Buildings), Sea Level Rise Planning Standards Part B, the cited four (4) feet of sea level rise is low for the NOAA Intermediate-High scenario projections for the year 2100 at various points across the Commonwealth of Virginia. Six (6) feet is a more appropriate estimate given the NOAA Intermediate-High scenario.
On the last page, Article V (Enactment) shows “to be determined” and is therefore incomplete. This is after the Article IV (Glossary).
We thank you for your work to advance proper floodplain management activities within the Commonwealth of Virginia and for this opportunity to comment on the posted general notice.
Sincerely,
Morgan Butler
Senior Attorney
Southern Environmental Law Center
Patrick Calvert
Director of Policy and Campaigns:
Clean Water & Land Conservation
Virginia Conservation Network
Jay Ford
Virginia Policy and Grassroots Advisor
Chesapeake Bay Foundation
Chris Leyen
Policy Director
Virginia League of Conservation Voters
Kristin Owen
President
Virginia Floodplain Management Association
Emily Steinhilber
Virginia Director: Climate Resilient Coasts & Watersheds
Environmental Defense Fund
Mary-Carson S. Stiff
Executive Director
Wetlands Watch