Dear Mr. Glover:

 

I am writing on behalf of the Virginia Municipal Stormwater Association (VAMSA) with comments on the Department of Conservation and Recreation’s (DCR or Department) draft funding manuals entitled 2023 Funding Manual for the Resilient Virginia Revolving Fund (RVRF Draft Manual) and 2023 Funding Manual for the Virginia Community Flood Preparedness Fund (CFPF Draft Manual).

 

I.         INTRODUCTION

 

VAMSA’s membership is comprised of cities, counties, and towns across Virginia from Hampton Roads to Northern Virginia to Southwest Virginia and all areas in between. For years now, our communities have faced significant storm-related challenges, including more frequent and intense storms resulting from seasonal hurricanes and localized pop-up storms with heavy precipitation over a short period of time. These storms can have serious, if not catastrophic, impacts on our citizens, businesses, and visitors. VAMSA members are also deeply concerned about the potential impacts of sea-level rise on our beautiful coastline.     

 

In 2020, the Virginia General Assembly established the Virginia Community Flood Preparedness Fund (CFPF) to provide funding for community-level flood capacity building, planning, studies, and projects. VAMSA members have been the fortunate recipients of grant dollars from the CFPF over the last three grant rounds.

 

In 2022, the General Assembly established the Resilient Virginia Revolving Fund (RVRF) to provide funding for property-level resilience projects. As DCR aptly explains in the Draft CFPF Manual the CFPF and the RVRF work together: “As the name and statutory framework indicate, the Community Flood Preparedness Fund is focused on community-scale infrastructure projects. In this way, it complements the Resilient Virginia Revolving Fund (RVRF), which focuses on property-scale projects.” (Draft CFPF Manual, p. 4).

 

Both are important tools for VAMSA members to implement flooding projects at the local level. VAMSA therefore has a strong interest in the development of the Draft Manuals. We look forward to working with DCR as the Department implements the RVRF for the first time and continues to implement the CFPF.

 

VAMSA has carefully reviewed each draft and provides the comments below for the Department’s consideration. VAMSA appreciates the opportunity to comment, and requests that the Department also consider any individual comments filed by VAMSA members on this important topic.

 

II.       COMMENTS ON RVRF DRAFT MANUAL

 

VAMSA Supports Defining “Recurrent and Repetitive Flooding” Broadly

 

The RVRF Draft Manual includes a definition for “Recurrent or Repetitive Flooding” that includes rain events, storm surges, and tidal flooding that occur on a regular or frequent basis to include areas with repetitive loss properties as defined by the Federal Emergency Management Agency (FEMA). (RVRF Draft Manual, p. 7).

 

VAMSA supports this broad definition. Because the FEMA requirements for a repetitive loss property are narrow, VAMSA members know there are many, many properties in their communities that are flood-prone that do not qualify as a repetitive loss property. The Fund should be available for these properties as well as those that meet the formal repetitive loss definition.

 

If there are narrow references in the Draft Manual that only reference repetitive loss properties, they should be expanded. For example, on p. 23, the Draft Manual states that the Scope of Work narrative should include the “number of repetitive loss properties that would be covered by the program.” See also Appendix D which asks: “Will the Local Flood Resilience Funding Program be part of an effort to remedy repetitive loss funding?” (App. D, p. 2) and Appendix E which asks: “Is the proposed project part of an effort to remedy repetitive loss funding?” (App. E, p. 2).

 

The Requirement to Track Flooding Should Be Deleted

 

The RVRF Draft Manual states that “All flooding should be tracked and managed by the community.” (RVRF Draft Manual, p. 7).

 

Local governments do not have the capacity to track all flooding; in fact, we question whether the State could even do so. In addition, if local governments are considered the “community” referred to in this sentence, we are not able to manage all flooding, even with best efforts.

 

VAMSA requests that DCR either strike this sentence or replace it with: “As practicable, a local government with authority over land use decisions should maintain records of any known flooding in the jurisdiction (including records on weather conditions, citizen flooding complaints, and any responsive action taken by the local government).”

 

The Manual Should Define Disadvantaged Communities

 

The RVRF Draft Manual includes a definition for “Underserved Communities” that includes “disadvantaged communities.” (RVRF Draft Manual, p. 7).

 

VAMSA requests that DCR provide a definition for “disadvantaged communities.”

 

Three Years May Not Be Adequate to Complete an Activity or Project

 

The RVRF Draft Manual states that an activity or project must be completed “not later than 3 years from the date of an executed agreement or by an extension date approved by the Department.” (RVRF Draft Manual, p. 9, 13).

 

VAMSA appreciates the fact that DCR may allow extensions. However, we are concerned that three years may not be adequate for certain types of projects. For example, the Fund can be used for home buyouts “necessary for the construction of mitigation or resilience projects.” (RVRF Draft Manual, p. 4). We can envision scenarios wherein purchasing a property, designing a project, and then constructing that project could easily take more than three years.

 

VAMSA suggests that DCR strike the one-size-fits-all three-year completion deadline in favor of language that would allow DCR and the applicant to establish a completion date based on the specific project.

 

On a related note, the RVRF Draft Manual limits extensions to projects that have “commenced within the first nine months of the original agreement period.” (RVRF Draft Manual, p. 13). DCR has provided no logical basis for this limitation. Why should a project that began, through no fault of the applicant, nine months and one day after the agreement be barred from asking for an extension? As with the three-year deadline, VAMSA asks that DCR not impose a universal requirement here; DCR should approach an extension request based on the merits of the project, not on an artificial timeline.

 

DCR Should Not Limit Funding to Post-Award Costs

 

The RVRF Draft Manual states that: “Pre-award costs are not eligible.” (Draft Manual, p. 9).

 

VAMSA submits that the State will miss out on a lot of good projects if funding is limited in this manner. We question why the State would want to dissuade a local government from applying for funding for a project that has already, for example, gone through initial design. In fact, if anything, given the flooding situation across the State, we should be encouraging projects that can be completed as quickly as possible. The way to do this is to offer funds for reasonable pre-award costs.

 

VAMSA requests that DCR revise the RVRF Draft Manual to provide flexibility for an application to be submitted anytime during design or construction, similar to how DEQ handles SLAF applications. This will increase the likelihood of a project being completed within the required timeframe, funds will be expended at a faster rate, and it will reduce the number of applications and extensions needed to fund or complete the project within a timeframe.

   

Relatedly, the RVRF Draft Manual states that indirect costs are not eligible. The RVRF Draft Manual includes a definition of “cost”—the question of which costs are eligible, and which are not, is answered by that definition. The sentence on p. 9 is superfluous.

 

Identifying Matching Funds with the Application Could Be Burdensome

 

The RVRF Draft Manual explains that for a loan or grant to be authorized the local government must have authorized the request for assistance from the Fund and “the availability of identified cash matching funds, if required.” (RVRF Draft Manual, p. 10).

 

VAMSA is concerned that there may be staff in communities that develop applications for grants and/or loans without first approaching the governing body. The staff would only ask for governing body authorization if the application is successful.[1] VAMSA understands that DCR is attempting to keep communities who cannot or will not provide matching funds from applying, but even under DCR’s scenario a governing body is likely to make the authorization for funds contingent on being chosen for a grant and/or loan. Including the requirement to prove matching funds will not fix the problem, and will, in fact, make the process much more difficult for applicants.

 

VAMSA requests that DCR eliminate this requirement from the RVRF Draft Manual. If DCR is not willing to do so, VAMSA requests some flexibility for applicants who have taken serious steps to pull together an application, even if they do not have formal governing body approval. The requirement should at a minimum be expanded to allow an applicant to show matching funds that may not be in cash.

 

The Requirement to Report Over the Life of the Project Is Vague

 

The RVRF Draft Manual states that a project that will require future maintenance must include a plan for monitoring the project, replacement of the project should it fail, and “reporting over the life of the project.” (RVRF Draft Manual, p. 10)

 

VAMSA questions who will be reporting on the project, why reporting is necessary, and to whom should reporting be made?

 

The RVRF Draft Manual also states that projects that fail before the projected lifespan “must be replaced at grantee expense or funds repaid to the Department.” (RVRF Draft Manual, p. 22). VAMSA disagrees that a project that has failed, perhaps because flooding has increased over time in the area, should always be replaced or repaid.   

 

VAMSA requests that DCR eliminate both requirements.

 

The Manual Should Identify the Review Committee

 

The RVRF Draft Manual states that the Review Committee will be responsible for reviewing and ranking each application to determine a score. (RVRF Draft Manual, p. 13)

 

VAMSA requests that DCR explain in the Manual how the Committee will be formed and who will be included.

 

The Appendices Should Be Revised

 

VAMSA has a number of questions and comments about the appendices to the RVRF Draft Manual, including:

 

Appendix A

 

• As a part of the Application Form, the applicant must attach a list of the ten largest employers in the jurisdiction and a list of the ten largest taxpayers. VAMSA does not understand why this is necessary if a locality is providing its budget and Capital Improvement Plan. (App. A, p. 3). We recommend deleting these two requirements as burdensome and unhelpful.

 

Appendix B

 

• Is the response in Question 4 correct? If a project has not previously been included in an application for funding, it is not eligible for consideration?

 

• The term “socially vulnerable” is used in Question 6. This is a new term, not defined earlier in the RVRF Draft Manual. We note that “Low-income Community” and “Underserved Communities” are both defined, but neither are used here.

 

• The term “existing code violations” is used in Question 7. We assume DCR means a code violation based on the local ordinance in the community applying for funding, however this is not clear.

 

Appendix C

 

• Question 4 requires a letter of support from the owners of the property being mitigated. Obtaining a letter could be burdensome for some localities. We recommend revising this to either require a letter or a signed authorization for the project.

 

• The term “Critical Facility” is used in Question 11 (“What is being protected?”). We assume the definition would be similar to or identical to the definition in the CFPF Draft Manual (p. 5), however, this should be clarified.

   

III.     COMMENTS ON CFPF DRAFT MANUAL

 

Several of the comments above apply with equal force to the CFPF Draft Manual. These include comments relating to: adding a definition for “disadvantaged communities” (CFPF Draft Manual, p. 7); eliminating a requirement to track and manage all flooding (CFPF Draft Manual, p. 7); eliminating statements about indirect costs (CFPF Draft Manual, p. 9); adding flexibility to allow an applicant to submit an application during design or construction (CFPF Draft Manual, p. 8, 29); eliminating the requirement to identify matching funds with the application (CFPF Draft Manual, p. 9); eliminating the requirement to report over the life of a project (CFPF Draft Manual, p. 10); identifying the Review Committee (CFPF Draft Manual, p. 12); establishing a project completion date based on the specific project (CFPF Draft Manual, p. 12); eliminating the arbitrary nine-month requirement for requesting an extension (CFPF Draft Manual, p. 13); and expanding the scope of projects to include recurrent flooding in addition to repetitive loss (CFPF Draft Manual, p. 24).   

 

Additionally, VAMSA shares the following comments that are unique to the CFPF Draft Manual.

 

The Requirement for a Community Scale Project to Reach 10% of the Population Could Be Difficult to Achieve

 

The CFPF Draft Manual defines a “Community Scale Project” to include a project that benefits a “substantial” part of the population, or 10% of the locality based on the 2020 U.S. Census. (CFPF Draft Manual, p. 5).

 

This could be difficult to achieve for larger jurisdictions. VAMSA recommends making this scalable or providing an alternative minimum number of residents that the project will benefit, whichever is less.

 

Several Definitions Should Be Revised

 

The CFPF Draft Manual defines “Flood prevention or protection” as the “construction of hazard mitigation projects, acquisition of land, or implementation of land use controls that reduce or mitigate damage from coastal or riverine flooding.” (CFPF Draft Manual, p. 6).

 

VAMSA requests that DCR add “pluvial” to the definition as this is what urban areas most often experience. Much of urban flooding is neither coastal nor riverine.

 

The CFPF Draft Manual defines “Flood prevention or protection benefits” as the “physical benefits provided by a project and societal benefits provided by the protection of critical infrastructure.” (CFPF Draft Manual, p. 6).

 

VAMSA requests that DCR add neighborhoods and reduced risk to residential and commercial structures to this definition in addition to critical infrastructure.

 

The CFPF Draft Manual defines “Flood prevention or protection study” as conducting “a hydraulic or hydrologic study of a floodplain with historic and predicted floods, the assessment of flood risk, and the development of strategies to prevent or mitigate damage from coastal or riverine flooding.” (CFPF Draft Manual, p. 6).

 

VAMSA requests that DCR revise the definition to include “urban flood-prone areas” to acceptable study areas and add “pluvial” to coastal and riverine flooding.

 

The CFPF Draft Manual defines “Low-income geographic area” as “an locality, or community within a locality, that has a median household income that is not greater than 80 percent of the local median household income, or any area in the Commonwealth designated as a qualified opportunity zone by the U.S. Secretary of the Treasury via his delegation of authority to the Internal Revenue Service.”

 

VAMSA requests that DCR include Justice 40 areas as qualified to meet this definition.

 

Example Projects Should Include Pluvial Flooding

 

The CFPF Draft Manual includes examples of applicable study projects. One example provided is a study to “develop strategies to prevent or mitigate damage from coastal or riverine flooding.”
(CFPF Draft Manual, p. 17).

 

VAMSA requests that DCR revise this text to include “pluvial” flooding.

 

Grant Totals Should Be Clarified

 

The CFPF Draft Manual establishes a maximum $5,000,000 for projects in low-income geographic areas and $3,000,000 elsewhere and states that “No applicant shall be awarded more than $5,000,000 in grants.” (CFPF Draft Manual, p. 18).

 

VAMSA questions whether this the maximum is $5,000,000 per application or total and asks DCR to clarify this point in the Draft Manual.

 

On a similar note, p. 18 lists $20,000,000 in long-term loans but Part II.A.1 includes $25,000,000 in long-term loans. (CFPF Draft Manual, p. 8).

 

Certain Projects on Private Property Should Be Allowed

 

The CFPF Draft Manual states that “Projects on private property will not be considered unless the project provides community scale benefits (such as community-scale flood control structures).” (CFPF Draft Manual, p. 20)

 

VAMSA asks that DCR please add “unless the project is within an easement granted to the jurisdiction that allows the construction and maintenance of the project.”

 

Scope of Work Narrative Description Should Be Revised

 

The CFPF Draft Manual includes a list of questions (for example, “What is the specific problem being solved (not just that flooding exists or may occur in the future)?”). (CFPF Draft Manual, p. 22).

 

VAMSA suggests changing the questions into statements. In addition, please consider repeating this for the three award categories as some of these are not applicable to capacity building.

 

Scope of Work for Projects Should Not Include Benefit-Cost Analysis

 

The CFPF Draft Manual states that the Scope of Work for a project must include a benefit-cost analysis with the application. (CFPF Draft Manual, p. 25).

 

Performing a benefit-cost analysis can be time consuming and difficult to complete without hiring a consultant. This requirement could chill interest in applying, especially by smaller communities. 

 

VAMSA requests that DCR limit a cost-benefit analysis requirement to projects that exceed $2 Million.

 

Applicants Should Not Be Required to Detail Problems with Other Projects

 

The CFPF Draft Manual states that the applicant must describe for other projects “any problems that arose with meeting the obligations of the grant and how the obligations of this project will be met.” (CFPF Draft Manual, p. 27).

 

VAMSA asks that DCR delete this sentence. Applicants should be dealt with in good faith based on the current request and not on past issues that may or may not have been the fault of the community.