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

1. Section 1.1(A)(1) provides that "Virginia shall comply with the minimum floodplain management criteria set forth in 44 CFR §§ 60.3, 60.4, and 60.5." Section 1.2 and subsequent sections of the State Standard, however, are more stringent than federal law, specifically those sections addressing state-managed floodplains including the 0.2% flood zones and sea-level rise inundation areas. VDOT is seeking clarification in this regard.

2. Section 1.1(B) provides that state development activity on state-owned property shall comply with the State Standards when located in a non-participating local community. VDOT requests that the Section 1.1(B) be amended as follows to clarify that the State Standards apply to such state development activity on state-owned property statewide, required when occurring in a non-participating local community and an option when occurring in a participating local community, since the Commonwealth is a legal community distinct from local political subdivisions under the National Flood Insurance Program (NFIP): “If any State-owned property is located in a non-participating local community, then the State shall comply with the requirements of the Virginia Floodplain Development Standards (the Standard). If any State-owned property is located in a participating local community, then the state agency with jurisdiction over the property may elect to comply with either the requirements of the participating local community or these Standards.”

3. In Section 1.1(C)—and throughout the State Standards—VDOT recommends replacing the term “variance permit” with the term “permit,” consistent with Va. Code § 10.1-603: “No state-owned buildings, or buildings constructed on state-owned property, shall be constructed, reconstructed, purchased, or acquired by the Commonwealth within state-managed floodplains in any community unless a variance permit is granted by the Department of Conservation and Recreation (DCR), as outlined in these Standards.”

4. The Commonwealth routinely purchases structures or buildings in the acquisition of highway rights of way for the sole purpose of demolition to accommodate the construction of new linear transportation infrastructure.  These structures or buildings may be located within a floodplain as defined in Article IV (Glossary) of the Standards.  VDOT requests that Section 1.1 (C) also be amended to include the following language to ensure that permits would not be required for activities that reduce floodplain risks to life and property by the removal of manmade structures: “No state-owned buildings, or buildings constructed on state-owned property, shall be constructed, reconstructed, purchased, or acquired by the Commonwealth within state-managed floodplains in any community unless a variance permit is granted by the Department of Conservation and Recreation (DCR), as outlined in these Standards provided, however, that the acquisition of buildings for the sole purpose of demolition shall not require a permit.”  

Section 1.2—Statutory Authorities

5. The cited authorities, Va. Code § 10.1-658 (declaring the risks of recurrent flooding and supporting resilience through the Coastal Resilience Master Plan and the Virginia Flood Protection Master Plan) and 44 CFR § 59.22(a)(2) (requiring a State Standard that meets minimum NFIP requirements), do not grant DCR the authority to restrict or prohibit linear transportation infrastructure. VDOT requests that Section 1.2(B) be amended to provide: “Restricting or prohibiting certain uses, activities, and development from locating within the state-managed floodplains, where practicable[.]”

6. Also in Section 1.2(B), the term "state-managed floodplains" should be replaced with "special flood hazard areas” in alignment with NFIP terminology. State Standards that restrict or prohibit linear transportation infrastructure development outside of special flood hazard areas and beyond the minimum NFIP standards could impose significant regulatory and financial burdens on state- and federally-funded linear transportation projects. Accordingly, VDOT recommends that Section 1.2(B) also be amended to provide: “Restricting or prohibiting certain uses, activities, and development from locating within the state-managed floodplains special flood hazard areas, where practicable[.]”

7. Similarly, Section 1.2(C) should be amended by deleting the term “flood-risk areas,” which is not defined in either Article IV (Glossary) or in federal law and extends beyond the minimum requirements of the NFIP: “Requiring all those uses, activities, and developments that do occur in the floodplain and identified flood-risk areas (1% flood zones, 0.2% flood zones and sea level rise inundation areas) to be protected and/or floodproofed against flooding and flood damage”

Section 1.3—Applicability

8. It is unclear which provisions of the State Standards would be applicable to linear transportation infrastructure. All sections of the standard, such as those referencing sea level rise inundation areas, 0.2% flood zones, and freeboard requirements, may potentially have a considerable impact on the Commonwealth’s capacity to build, operate, and maintain the systems of state highways. Consistent with Va. Code § 10.1-603 (F), VDOT recommends adding language to the State Standards affirming the programmatic flexibility provided by the General Assembly in Section 1.3 (A): “These Standards shall apply to all  All linear transportation infrastructure development activity constructed by or on behalf of the Virginia Department of Transportation on state-owned or leased property, including those lands underlying the secondary state highway system, within the Commonwealth of Virginia and identified as floodplain by DCR shall be administered pursuant to a Memorandum of Understanding executed under the authority of Va. Code § 10.1-603(F).”

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

9. Section 1.6 is premised on the authority of 44 CFR § 60.1(b), which provides that “regulations must be legally-enforceable, applied uniformly throughout the community to all privately and publicly owned land within flood-prone, mudslide (i.e., mudflow) or flood-related erosion areas, and the community must provide that the regulations take precedence over any less restrictive conflicting local laws, ordinances or codes.” (Emphasis added.) This provision of federal law expressly does not require that local laws, ordinances, or codes take precedence over state laws and standards.

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

10. While VDOT supports the flexibility provided by federal and state law and as embodied by Section 2.1(C) regarding the Floodplain Administrator’s authority to delegate to sister state agencies and private sector floodplain professionals, the inherent authority of the state over its political subdivisions would be undermined if localities were to enforce the State Standards on a state agency with statewide, cross-jurisdictional responsibility. Consequently, VDOT would recommend striking the term community: “Enter into a written agreement or written contract with another community, state agency or private sector entity to administer specific provisions of these regulations. Administration of any part of these regulations by another entity shall not relieve the community of its responsibilities pursuant to the participation requirements of the NFIP as set forth in 44 CFR § 59.22.”

Section 2.2—Duties and Responsibilities of the Floodplain Administrator

11. VDOT is gravely concerned about the cost and efficiency impacts of a new regulatory permit, to be sought on the vast majority of construction and maintenance activities, that does not issue until all other necessary permits have been obtained. Functionally, this sequence would require obtaining permit modifications for the previously issued permits should the Floodplain Administrator require any substantive redesign or operational changes. This section also recites the misunderstanding that localities issue permits to the state for state activities. VDOT recommends amending Section 2.2 (D) to provide that the “duties and responsibilities of the Floodplain Administrator shall include [the review of floodplain permit] applications to determine (i) whether all necessary permits have been obtained from the Federal, or State, or local agencies from which prior or concurrent approval is required or (ii) for linear transportation infrastructure development activities, whether all necessary permits from Federal or State agencies are reasonably expected to be obtained[.]”

Section 2.4—Use and Interpretation of FIRMS

12. Section 2.4(A)(2) appears to undermine the purpose of the State Standards to be applicable to state activities on state-owned or managed property and conflicts internally with Section 3.1(C)(3). VDOT recommends deleting the following language in Section 2.4(A)(2): “Where field surveyed topography indicates that adjacent ground elevations . . . [a] re above the base flood elevation and the area is labelled as the floodplain on the FIRM, the area shall be regulated as the floodplain unless the applicant obtains a Letter of Map Change that removes the area from the floodplain. Local freeboard requirements would apply in lieu of these Standards.”

13. VDOT seeks clarification that subsections (C) and (D) of Section 2.4 would require any model showing a higher base flood elevation (BFE) and/or reduced floodway widths would take precedence over any other models. VDOT is concerned that older hydraulic models with a higher BFE and/or larger floodway width may not accurately reflect present conditions, given natural processes like stream migration that alter cross sections from their original mapping. Improved survey data and larger bridge/culvert hydraulic openings often result in more precise hydraulic models, potentially leading to reduced floodway widths and base flood elevations. As a result, if disparities arise between FEMA data and VDOT, the more accurate VDOT data would take precedence. These discrepancies would be noted and documented for future reference, but a CLOMR (Conditional Letter of Map Revision) submission would not be necessary. VDOT recommends that subsections (C) and (D) of Section 2.4 be modified as follows:

“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).