The following comments are submitted by the Virginia Department of Transportation in response to the Draft Virginia Floodplain Management Standards for State-Owned Property. This submission is the first of a multi-part submission and consists of comments numbered 1 through 13.
On April 12, 2023, Governor Youngkin signed Chapters 762 and 777 of the 2023 Acts of Assembly. These chapters require that, no later than September 30, 2023, the Department of Conservation and Recreation (DCR), in cooperation with the Secretaries of Administration, Agriculture and Forestry, Commerce and Trade, Education, Health and Human Resources, Natural and Historic Resources, Public Safety and Homeland Security, and Transportation, or their designees, the Special Assistant to the Governor for Coastal Adaptation and Protection, or his designee, and any additional state officials designated by the Chief Resilience Officer, establish state standards for development in a flood plain for all state agencies and departments of the Commonwealth.
On August 25, 2023, a copy of Draft Virginia Floodplain Management Standards for State-Owned Property (the “State Standards”) was posted for public comment, for 15 days until September 9, 2023. This submission is provided to communicate comments and concerns of the Virginia Department of Transportation (VDOT) regarding the State Standards. Comments are provided below, followed by rationale, and suggested revisions.
Section 1.1—Floodplain Development Standards for state-owned properties
Section 1.2—Statutory Authorities
This recommendation is further supported by VDOT’s additional federal regulatory oversight by the Federal Highway Administration (FHWA) pursuant to 23 CFR 650, Subpart A, Location and Hydraulic Design of Encroachments on Flood Plains, which embodies the longstanding agreement between FHWA and the Federal Emergency Management Agency (FEMA) regarding operating procedures for the implementation of the NFIP for linear transportation infrastructure (see https://www.fhwa.dot.gov/engineering/hydraulics/policymemo/820625.pdf ). VDOT is concerned that a complex and varying array of regulations would negatively and unduly impact the effective construction, operation, and maintenance of the state systems of highways without the expected corresponding benefit to resilience.
Section 1.6—Abrogation and Greater Restrictions
Under the NFIP, the state is a community that is jurisdictionally separate from its local governments as the term, pursuant to 44 CFR § 59.1, “means any State or area or political subdivision thereof . . . which has authority to adopt and enforce flood plain management regulations for the areas within its jurisdiction.” (Emphasis added.) VDOT recommends that Section 1.6 be clarified to ensure the ongoing sovereignty of the Commonwealth over its political subdivisions: “In the event of a conflict between these Standards and any other statutory or regulatory requirements of the Commonwealth, the more restrictive State standard or regulatory requirement shall govern.”
Section 2.1—Designation of the Floodplain Administrator
Section 2.2—Duties and Responsibilities of the Floodplain Administrator
Section 2.4—Use and Interpretation of FIRMS
“C. Design flood elevations and designated boundaries in the floodplain based on the most accurate hydraulic and hydrologic inputs shall take precedence over base flood elevations and floodway boundaries by any other sources
if such sources show reduced floodway widths and/or lower base flood elevations.
D. Other sources of data shall be reasonably used if such sources
show increased base flood elevations and/or larger floodway areas are based on more accurate hydraulic and hydrologic inputs than are shown on FIRMs and in FISs.”
Comments numbered 14 through 39 will be submitted via separate submission(s).