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ASFPM submits comments on potential revisions to 33 CFR Part 203 (PL 84-99)
Tuesday, April 14, 2015

ASFPM Comments on Potential Revisions to 33 CFR Part 203 (PL 84-99) 
CFR Document COE-2015-0004


General comments- Federal taxpayer costs for disasters are rising dramatically due to increased human development in flood hazard areas and increasing storm intensity and sea level rise. Taxpayer costs for flood disasters have risen to well over $10 billion/year, with two events in the last 10 years costing more than $200 billion. To reduce these taxpayer costs and increase public protection and foster wise use of the nation’s floodplains, federal programs and policies must be adjusted to reflect a shared responsibility between all levels of government and property owners in sharing the costs and benefits of this wise use. PL 84-99 is one of those programs in dire need of revision to remove its incentives for communities and developers to continue to increase development in high risk flood areas. These suggestions are aimed in that direction.

Question 1: What (if any) additional types of Advance Measures assistance should be considered?

•The COE and Public Sponsor should not take any actions without first ensuring these actions will not adversely impact economic, environmental or cultural values upstream or downstream or in the area of the proposed action.

•The program currently provides excessive assistance (either 100 percent or 80 percent federal taxpayer funded) to non-federal partners and stakeholders at great expense to the federal taxpayer.

Question 2: What (if any) additional eligibility or performance requirements should be considered generally for Advance Measures Assistance?

•The COE and Public Sponsor must ensure that any action taken has no adverse impact on people or property in and around the action.

•Criteria must be developed that puts a limit on the number of times in a specified period that Corps Advance Measure Assistance can be provided. The program has evolved to the point that communities rely on advance measures as their primary means of flood risk reduction program, thus relying on repeated construction of advanced measures to provide flood mitigation for the community at nearly full cost to the federal taxpayers, with little or no cost for the community or people living at risk. We suggest a limit of one time for advanced measures paid for by federal taxpayers. After that non-federal interests must pay for the measures or avail themselves of federally cost shared permanent mitigation measures.

Question 3: Would changing the cost share serve as an effective incentive for promotion of the standard USACE planning process? If not, what other incentives or requirements for using the standard USACE planning process for permanent construction should be considered?

•Limiting the federal cost share to 65 percent federal would be an incentive for locals to use the Corps permanent construction programs because it would match the permanent measure cost share. It would also provide a better balance between those who benefit and those who pay.

Question 4: What should USACE evaluate to determine if a non-federal sponsor is adequately operating and maintaining its flood control project? What should be considered adequate operations and management for eligibility purposes?

•The Corps should at a minimum enforce its current criteria for O&M. The Corps must also enforce the total OMRRR requirements contained in its current criteria for local cooperation. Those project where the sponsors are not meeting this criteria must be removed from the program 

•The criteria of O&M should be consistent with current and future national levee standards that provide the greatest public protection and ecosystem functions.

•PL 84-99 funds should never be used for activities that should have been done under OMRRR.

Question 5: How should USACE evaluate a non-federal sponsor’s emergency preparedness, notification, evacuation planning and exercise plan and activities to determine if they are adequate? What should USACE evaluate? What should be considered adequate?

•USACE must require a Flood Plain Management Plan (FPMP) for every Flood Risk Management (FRM) Project. The FPMP could be the vehicle for Risk Communication, Emergency Preparedness, and Evacuation Plans. The FPMP should be cross-walked with FEMA NFIP requirements to make the plan more holistic and consistent among federal agencies and measureable. The plan must be reviewed and verified every year by the sponsor and every five years by the Corp, and after every major disaster, by the USACE. 

•This FPMP requirement can also be part of the FEMA required Flood Hazard Mitigation Plan that is required by all communities to be eligible for FEMA hazard mitigation funding. Inclusion of a FPMP and Flood Hazard Mitigation Plan and keeping these plans continuously updated and current must be a requirement of the sponsor OMRRR.

Question 6: How should USACE evaluate a non-federal sponsor’s risk communications plan and activities for informing local officials, residents, and business owners about risks associated with the potential failure of the flood control project (e.g., a levee breach)?

•When USACE require a Flood Plain Management Plan (FPMP) for every Flood Risk Management (FRM) Project that FPMP could be the vehicle for Risk Communication, Emergency Preparedness, and Evacuation Plan. The FPMP should be cross-walked with FEMA NFIP requirements and Hazard Mitigation Plan to make it more holistic and consistent among federal agencies and measureable.

•The Corps must require that at least annually the non-federal sponsor fully communicate to those in the “protected” area of a structural project that a residual flood risk exists. The Corps should require as part of all Corps programs that signs be placed in the “protected” area that inform and educate people that a flood risk exists in that area. This must be required as part of the non-federal sponsor OMRRR

Question 7: Are there other criteria that USACE should consider using to determine eligibility of rehabilitation assistance that would assist and encourage non-federal sponsors and flood-prone communities to reduce their risks from flooding?

•The Corps must develop criteria that will provide incentives and rewards to sponsors that do a good job of flood risk management. As it exists today, too often those who do the least to reduce/manage flood risk get the most from USACE and federal taxpayers. The criteria must require that structural measures meet minimum national standards for structural resilience, or have a specified timeframe of a couple years to upgrade the structure.

Question 8: What improvements to the existing SWIF policy should be made? See other responses.

Question 9: Currently, the SWIF policy has only been used for levee projects. Should the System Wide Improvement Framework (SWIF) concept be applied to other types of flood control projects like channels? If so, for what purposes and using what criteria?

•Yes SWIF concepts should be used for all projects. All projects have the potential to adversely impact properties, societal elements or natural ecosystems functions, thus requiring a system approach to analyzing proposed system improvements and then insuring those impacts are mitigated before the project is implemented.

•Using the SWIF approach, adverse impacts to all economic, environmental and social aspects must be identified. Once adverse impacts are identified, they must be mitigated before any project is implemented.

Question 10: If the eligibility for rehabilitation assistance moves away from a standards-based inspection criteria and moves to an activities-based approach (as is considered in Section B.1 above), what role should the SWIF policy play? Under what circumstances would development of a SWIF be useful to non-federal sponsors?

•The same reasons for and use of SWIF apply here as in Question 9 above. The SWIF will enable the sponsor to determine if the project adversely impacts other people, property or economic, environmental or cultural issues in the community/region, and to mitigate those impacts as the activities are implemented.

Question 11: Are there other types of features and approaches that USACE should allow during rehabilitation efforts to minimize or address impacts on threatened and endangered species and tribal treaty rights while still providing the intended benefits of the flood control projects and reducing the risk of loss of life and significant economic damages?

•Perhaps the most effective approach to managing flood risk while also providing for ecosystem functions and endangered species that has not been used is setback levees. The argument over vegetation on levees exists primarily because levees have been built right on the bank of the river, so the only habitat that is left is that on the river side of the levee. Setback levees can provide the necessary habitat and ecosystem functions for all species, in addition to greatly increasing groundwater recharge. The USACE demonstrated a “best practice” for PL 84-99 after the 2011 floods washed out a section of levee on the Missouri River that had repeatedly washed out over the years. In that instance, they worked with sponsors, adjacent property owners and others to set the levee back, thus reducing the velocity/erosion causing the repeated failure and added the benefits for ecosystem functions and public safety.

•The positive outcome just described above will result only if USACE is always required to “stop and think” about all alternatives before rushing in to rebuild failed/damaged flood control structures after a flooding event. A full analysis of all flood risk reduction alternatives must be done. The current practice of only looking at nonstructural options if requested by the sponsor must end. The USACE must insist all alternatives are analyzed in order to protect the federal taxpayer’s long-term investment. 

•USACE should identify all levees that have failed over the years and perform some analysis of alternative in advance of the next flood, which will surely come. This advance planning could be done in collaboration with sponsors/levee owners so it does not have to be done in a crisis mode right after the flood when everyone is clamoring for immediate repair, not wanting to take the time to find the most cost effective and best long-term solution. Consideration of the full range of options must be required post damage for any repetitive loss levee. 

Question 12: What advance planning activities could USACE undertake with non-federal interests to enable non-federal interests to consider NSAPs as viable alternatives to structural rehabilitation efforts if the project is damaged in a future flood event?

•USACE must ensure sponsor agreements require advance measures are removed after the event, and must be removed with non-federal funds. Too often communities are using FEMA funding to remove advance measures, resulting in total federal taxpayer funding of local flood mitigation actions.

•With the primary objectives of reducing problematic and systemic flood risk, increasing system sustainability and resiliency, as well as achieving increased ecosystem habitat benefits, we recommend USACE should identify "repetitive loss" federal system levees where dollar damages have been significant and recurring, resulting in repeated levee repair under the PL 84-99 program. Identification of these "repetitive loss" levee systems should be communicated with non-federal interests to work with them on NSAP, partial levee setback or entire levee removal through advance planning activities under existing civil works planning authorities. Planning activities should identify comprehensive flood risk reduction through decreased water surface elevations and decreased erosive velocities, thereby limiting future damages. Land use considerations for fully or partially evacuated floodplains should be directed toward open space use, the potential increase in habitat benefits or sustainable agricultural based activities, where the unprotected land may be productive during dry cycles and the protected land may be drained more expeditiously during wet cycles.

•Develop and use true costs of operation, maintenance, repair, relocation, and rehabilitation in NSAPs for levee sponsor and federal government for federal levee systems having sustained significant flood damage. 

Question 13: How can the current NSAP policy be improved?

•Nonstructural alternatives must be able to be implemented as quickly as structural repair. Too often, local sponsors insist USACE immediately rebuild a levee or other structural measure because they know it will take much longer to implement nonstructural measures, such as buyouts or elevations, even though those measures may be more cost effective to federal taxpayers. Buyouts, for example, are a “one and done” approach for the federal taxpayer so they never have to pay again for flooding on that property. USACE must find ways to implement NSAPs as fast as structural repair. Because these measures are one and done for taxpayers, an incentive of 5 or 10 percent on cost share should be considered. 

•The personnel responsible for managing the PL 84-99 program within USACE may not be the appropriate personnel for communicating NSAP opportunities. Recommend District/MSC Flood Risk Managers and Floodplain Managers become more engaged in the process to develop, analyze and communicate NSAP opportunities with responsible levee sponsors and entities located within the protected area. 

•Current NSAP policy generally indicates that entire levee removal must be conducted for NSAP consideration. Incorporating a description of the full array of nonstructural flood risk management measures (levee setback, elevation, acquisition, relocation, dry flood proofing, wet flood proofing, levee removal, and effective floodplain management) and their potential for managing flood risk is recommended for incorporation into the policy guidance document.

•Incorporate "levee setback" as a mitigation activity within the full array of nonstructural flood risk management measures identified as NSAPs.

•Recommend opportunities for pre-disaster or post-disaster evaluation of levee segments which could be categorized as having repetitive flood damages during the life of the project. Results could be used post-disaster for NSAP implementation.


Other Comments beyond specified questions
These recommendations include USACE, but also apply to other federal funding sources. While some of these appear to be focused on new projects, PL 84-99 is often used to repair or rebuild these projects, so the same considerations must be taken.

1. Federal funding agencies should provide preferential support (grants and cost share) and other incentives to states and localities that adopt land use management policies that incorporate strategic retreat from eroding shorelines. (FEMA, NOAA, USACE, HUD)

Federal funding should require all coastal states to plan for sea level rise and develop and implement a long-term plan to avoid future development and relocate existing development from high-risk low-lying areas vulnerable to sea level rise and other coastal flood and storm hazards. Preserve these areas for natural floodplain functions, natural resources, and public recreation to reduce taxpayer costs from rising sea level and increased storm activity.

2. Federal and state funding and regulatory decisions to armor shorelines should include an evaluation and assignment of long-term costs to mitigate potential adverse impacts of armoring, including erosion and scour, and loss or degradation of environmental services. (USACE, NOAA, State CZM)

Agency decisions should consider potential adverse impacts of armoring and identify actions and funding sources that may be required in the future to mitigate these adverse impacts.

3. Federal funding agencies should provide more funds for acquisition of property and/or easements on barrier islands, and leverage existing funds after a disaster. Consider how funding may be used to offset short-term financial impacts of acquisitions on developed communities. (FEMA, NOAA, USACE)

More funding should be directed to acquisition of vulnerable barrier island properties to provide long-term mitigation and reduce repetitive loss and public disaster recovery expenditures as sea levels continue to rise and coastal storms intensify.

4. Federal funding agencies should increase funding for programs designed to improve public awareness of natural resource functions, coastal risk, storm preparedness, and evacuation. (FEMA, NOAA, ACOE)

Public awareness of natural hazards and the benefits of natural systems in mitigating these hazards is critical to facilitating better regulatory and funding decisions at all levels.

5. Federal agencies should require comprehensive planning for coastal acquisitions to ensure that acquired lands are dedicated to resource restoration and enhancement to increase level of natural protection, and to promote public access to public lands. (NOAA, FEMA, USACE)

Restoration of preserved lands will provide enhanced ecosystem services and flood mitigation benefits.
Public use and enjoyment of these preserved lands will provide public support and advance efforts to acquire and restore property for public benefit.

6. Federal agencies that plan, fund and/or conduct beach nourishment operations should demonstrate that the federal interest in beach nourishment exceeds the federal interest in nonstructural and other, more permanent mitigation options that are more sustainable and don’t require ongoing expenditures. (USACE, FEMA)

Often, storm hazard mitigation projects are ignored in favor of beach nourishment, which is an expensive and mostly temporary solution. Federal funding for beach nourishment should be provided only in cases where other mitigation options have been shown to provide lesser benefits over the long-term. This evaluation should include an objective benefit-cost analysis, with adequate public input, to select and fund mitigation projects that will have the greatest benefit at the lowest federal cost over the long term compared to other mitigation options.

7. Adopt federal standards for agencies that plan, fund and/or conduct beach nourishment operations to define the scope of specific benefits that must be considered in demonstrating when a particular project is in the federal interest. (USACE, FEMA, OMB, CEQ)

Federal funding for nourishment should only be provided when there is a clearly defined federal interest. Defining the scope of what constitutes a “federal interest” is critical to ensuring appropriate spending of taxpayer dollars on nourishment, which often has local benefits, but seldom has clear federal taxpayer benefits. Defining federal interest must go beyond calculating a BCA using current criteria. 

8. Benefit-cost analyses for federally-funded nourishment projects should identify and evaluate full costs, including periodic renourishment, increased costs for locating and acquiring suitable material, long-term project maintenance and required protection of induced development and redevelopment. Public funding for these projects should be limited to projects that clearly demonstrate that benefits will exceed costs. (USACE, FEMA, OMB)

Failure to accurately define and consider full long-term costs of beach nourishment as a long-term mitigation option results in skewed federal funding and may preclude funding for more cost-effective solutions. This results in ongoing federal expenditures required for periodic, repetitive nourishment, which often exceed the project benefits.

9(a) Cost-sharing agreements for federal beach nourishment projects should be revised to 35 percent federal, 65 percent non-federal, in order to shift more of the cost to the non-federal sponsors who receive a majority of the project benefits. 

(b) No beach nourishment project, including after disasters, should ever be 100 percent federal funding.

As a matter of federal taxpayer equity, states and local municipalities that receive the greatest benefits from nourishment projects should contribute the greater share of costs. In some cases, the local jurisdiction that receives the greatest benefit contributes only 8 percent of the total project cost. Increasing the non-federal share of project costs will result in better long-term mitigation decisions at the state and local level.

10. Federal beach nourishment projects should be monitored and evaluated periodically to determine: if the project has actually performed and provided benefits as planned and was truly justified based on actual costs; if the project should be abandoned or the design should be amended to reflect changing conditions; or to increase efficiencies, reduce costs and provide greater benefits. (USACE)

A 50-year authorization for nourishment projects does not account for changing conditions which might suggest an alternative design or, in some cases, might cause the authorized project to fail a benefit-cost analysis. Periodic evaluations during the project life will provide an opportunity to implement project modifications/reduce costs.

11. Planning, benefit-cost analyses, design and construction of federal nourishment and re-nourishment projects, including previously authorized projects, should account for sea level rise and increased storm intensity over the 50-year project life. (USACE, OMB, CEQ)

Many federal nourishment projects have not been planned and designed in consideration of sea level rise over the 50-year project life. Failure to consider the effects of sea level rise may impact project performance and may skew the benefit-cost analysis and project selection.

12. Meaningful public access to and use of beaches nourished with federal dollars should be included as a condition of funding. (USACE, FEMA, Adm)

Since taxpayers fund a large share of nourishment projects, members of the public must have meaningful access to these resources. In addition to appropriate pedestrian access points along a nourished beach, “meaningful access” should include sufficient parking and rest room facilities to support public use.






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