U.S. Department of Homeland Security Region X 130 228th Street. SW Bothell. WA 98021-9796 glFEMA yw5 sfc December2. 2010 Steve Landino State Director for Habitat Conservation Washington State Iiabitat Office National Marine Fisheries Service 510 Desmond Drive, Suite 103 Lacey, Washington 98503-1263 Dear Mr. Landino: Enclosed is the U.S. Department of Homeland Security's Federal Emergency Management Agency's (FEMA's) annual report to the National Marine Fisheries Service (NMFS) in response to the reporting requirements outlined in the National Flood Insurance Program (NFIP) Biological Opinion issued by NMFS on September 22, 2008. This report provides a summary of the actions that have been taken, or are planned, as required by the Reasonable and Prudent Alternative (RPA) identified in the Biological Opinion. The continued implementation effort for each element that has not been completed is detailed in the report. We appreciate the continued technical assistance and partnership that you and your staff have provided me and my staff as we work towards full compliance with the Biological Opinion. Please feel free to call me if you have any questions regarding this report. Sincerely, /;/ !/a -' UtXp\ \X \XJU Mark Carey, Director Mitigation Division cc: Sandra Knight, FIMA Directorate, Washington, D.C. Amy Weinhouse, FEMA OCC, Washington, D.C. Enclosure MC:bb www.fema.gov Troll_Chinook FEMA_logo.png This Page Intentionally Left Blank Table of Contents Introduction…………………………………...……………………………………......1 RPA Element 2-Mapping……………………………………………………………....1 RPA Element 3-Floodplain Management Criteria……………………………………..2 RPA Element 4-Community Rating System………………………………………...…4 RPA Element 5-Levee Vegetation Maintenance and Certain Types of Construction in the Floodplain…………………………………………………………………………...4 RPA Element 6-Floodplain Mitigation Activities……………………………………...5 RPA Element 7-Monitoring and Adaptive Management………………………………5 Conclusions……………………………………………………………………………..6 Appendicies Appendix A: Procedure Memorandum 64 Note: To view, see posted Appendix at this web page. Appendix B: Community Compliance Choices Appendix C: Response to Comments Appendix D: CAC/CAV Manual Appendix E: CRS Elements Disposition Appendix F: 2009 Delinquent Annual Community Reports Appendix G: 2010 Annual Community Reports This page intentionally left blank Introduction Pursuant to the reporting requirements of RPA element 7 in the Biological Opinion, FEMA has prepared this annual report for compliance activities for 2010. FEMA over the last year has made progress towards compliance and implementation of the Biological Opinion. FEMA will demonstrate how we have worked to make improvements in our program to comply with the Biological Opinion. RPA Element 2-Mapping On March 4, 2010, the FEMA Regional Guidance for NFIP-ESA Hydrologic and Hydraulic Studies was distributed and is available on the FEMA website at www.fema.gov/about/regiona/regionx/nfipesa/shtm. The Regional Guidance is intended to augment national guidance to better fit regional conditions, particularly special ESA provisions for Washington State as explained in the Biological Opinion. The Biological Opinion identified three specific areas where mapping techniques could be adjusted to provide better hazard data and floodplain maps. The result of incorporating this guidance into flood hazard mapping will help communities meet the ESA requirements, as spelled out in the Biological Opinion, and to provide for more effective programs to prevent and reduce the dangers and damage caused by floods and migrating stream channels. A. Letters of Map Change: On August 18, 2010 the Federal Emergency Management Agency (FEMA) Headquarters issued a nationwide Procedure Memorandum 64 (appendix A) to revise the Letters-of­Map-Change (LOMC) process to require Conditional Letters of Map Revision on Fill (CLOMR-F) and Conditional Letters of Map Revision (CLOMR) applications received after October 1, 2010 to demonstrate compliance with the Endangered Species Act (ESA). Requestors are now required to provide a Biological Evaluation in order to determine if a Section 7 consultation with the National Marine Fisheries Service (NMFS) or the Fish & Wildlife Service (FWS) is needed. LOMRs and LOMR-Fs will be required to demonstrate compliance with the ESA when the permit is issued by the local government. See RPA Element 3. In Fiscal Year 2010 FEMA completed 2 consultations on CLOMRs. B. Mapping Priorities: Region 10 prioritizes development of Flood Insurance Studies based on the following factors: assessment of risk, evaluation of need to update data, available terrain data, and local contribution of data. As a result of congressional appropriations, FEMA Headquarters establishes targets in different study types that affect how Region 10 identifies fiscal year procurement objectives. For example, categories for study production in the past reflected the following: coastal, levee, other engineering needs, and potential partnerships with established Cooperating Technical Partners through our grant program. As part of the risk assessment input, variables relate to insurance claims, Page | 1 policies, losses, and disasters. We also include GIS data pertaining to the listed endangered species as well as input from the states regarding factors such as climate change, floodplain development pressure, growth, land use changes, and areas without digitized Flood Insurance Rate Maps. National guidance places a strong emphasis on coastal work and prioritization of riverine areas based on assessment of risk (45%), evaluation of need to update data (45%), and available terrain data (10%). For prioritization of FY 11 studies and all future studies, Region 10 expanded on the risk assessment portion of the algorithm to incorporate data of listed endangered species and factor this aspect into the prioritization of new studies on a watershed level in addition to setting coastal priorities. Simply put, ESA species and habitat will influence the algorithm used to determine which studies are funded each year. As the Map Modernization Program concludes and the new program, Risk Mapping, Assessments, and Planning (RiskMAP) launches, Region 10 seeks to work with federal, tribal, state, and local stakeholders to identify and assess risk aspects pertaining to multi-natural hazards in order to develop products that effectively communicate risks in a non-regulatory manner. An example of this is to include mapped channel migration zones in the risk database accompanying the digital Flood Insurance Rate Map dataset. Additionally, RiskMAP opens up opportunities to partner with other federal agencies, tribal governments, state agencies and local jurisdictions to develop data, products, and outreach strategies that cross disciplines and meet objectives of multiple programs. With the change in our prioritizing process as stated above, FEMA considers implementation of RPA Element 2B complete and no further reporting will occur regarding this element. C. Modeling: The Regional Guidance for Hydrologic and Hydraulic Studies provides more specific advice for applying different models; however, it does not supersede the technical requirements for applying a specific model provided in the revised Appendix C to the Guidelines and Specifications. The guidance provides advice on when an unsteady state model should be used in place of a steady state model. FEMA is conducting a comprehensive analysis of potential changes in precipitation intensity and patterns, coastal storms, sea level rise, and other natural processes affecting both riverine and coastal flooding based on source materials from other agencies and researchers versed in climate change studies. This report will address the NFIP nationwide and it would be premature for FEMA Region 10 to take any steps to address climate change for Puget Sound until after this report. This study has experienced some delays and is now anticipated to be completed in early 2011. RPA Element 3-Floodplain Management Criteria As of October 2010, FEMA has provided the 122 affected communities with two programmatic options to demonstrate compliance with the performance standards Page | 2 outlined in the Biological Opinion by drafting an ESA-compliant model ordinance and an associated Biological Opinion checklist. The draft model ordinance and checklist are available as a final draft on the FEMA website at: www.fema.gov/about/regiona/regionx/nfipesa/shtm. The model ordinance will provide a safe haven for communities to demonstrate compliance with the Biological Opinion. The checklist provides an avenue for communities to demonstrate how their current and proposed ordinances, policies, and written procedures meet or exceed the performance standards of the Biological Opinion. Communities that do not choose a programmatic option may choose to require a demonstration of compliance on a permit by permit basis. Communities that choose to demonstrate compliance permit by permit will be required to provide a habitat assessment that determines that the development project will not have an adverse effect or provide concurrence from the services that the project is compliant with the ESA. To date FEMA has received 24 submittals from communities indicating which option their community will likely choose. Two communities have chosen to adopt the model ordinance. 13 communities have chosen to demonstrate compliance using their current ordinances and policies. However, only five have submitted their checklist and documentation for review. Nine communities have chosen to require a demonstration of compliance with each permit that is issued. See appendix B. Based on correspondence received throughout 2009 and 2010 from local communities, counties, and tribes it is reasonable to assume that many communities are waiting to choose which option is best for them until NMFS officially agrees that the three options are ESA compliant. Understanding the model ordinance and three options will be undermined without a unified federal front. On March 9, 2010, FEMA requested and received comments from stakeholders on the model ordinance and regional guidance documents. Over 160 comments were received from a variety of different respondents including; tribes, counties, city governments, ports, environmental groups, industry, and state offices. FEMA’s response to comment is attached in Appendix C. In 2010, FEMA held four workshops throughout the Puget Sound to provide clarification and guidance on the draft model ordinance and guidance documents. Approximately 150 people attended the four workshops. The workshops were held in Burlington, Seattle, Pierce County, and Poulsbo. In the spring of 2011, FEMA, in partnership with NMFS, the State of Washington, and the Puget Sound Partnership, will host a two day conference. The objectives of this conference will be to continue in-depth discussions on the three compliance options and answering any lingering questions from previous presentations and to identify any inconsistencies between federal, state and local regulations and programs. The overarching goal will be to encourage communities who have not chosen which option to take, to commit within 2011, thereby fulfilling the recommendations in the RPA. Page | 3 In addition to the 52 meetings and community visits through 2010, FEMA has continued to provide technical assistance via telephone or visits to the communities to help them understand and comply with the requirements of the Biological Opinion. FEMA will continue to provide this assistance as requested. On September 10, 2010, NMFS provided an extension to the Tier 1 and Tier 2 community deadline to allow FEMA more time to work with local communities in implementing the performance standards of the Biological Opinion. It is estimated the FEMA has participated in over 140 community meetings and workshops over the last two years. To continue discussions and help ensure compliance with all the NFIP participants, FEMA is developing a supplemental outreach and implementation strategy for 2011. This strategy includes increased collaborative efforts with the Association of Washington Cities and the Washington State Association of Counties. Additional outreach objectives for the coming year will also include strengthening the government to government relationship between FEMA, NMFS and the federally recognized American Indian Tribes located in Puget Sound. Working in partnership with NFMS and the tribes will provide FEMA with the technical expertise and knowledge necessary for improving community and tribal participation in the NFIP and adoption of the model ordinance. FEMA has also revised the Community Assistance Contact/ Community Assistance Visit manual (CAC/CAV) in final draft form. The CAC/CAV manual provides guidance for FEMA staff and NFIP State Coordinators who conduct CACs or CAVs. The revised manual highlights the need for increased enforcement of 44 CFR 60.3 (a)(2), ensuring all necessary permits are received from applicable State and Federal agencies. See Appendix D. RPA Element 4-Community Rating System FEMA Region 10 continues to work with the Community Rating System (CRS) Task Force to incorporate recommendations from this element into the CRS program. Appendix E identifies the disposition of the CRS elements identified in RPA element 4. As of February 22, 2010, FEMA has finalized The CRS Credit for Habitat Protection Guidebook which highlights the CRS credits for natural and beneficial functions that are currently in the CRS program. Each section identifies where Community Rating System credit can be provided to communities that implement these practices. RPA Element 5-Levee Vegetation Maintenance and Certain Types of Construction in the Floodplain In 2010, FEMA Region 10 has provided funding to the State of Washington to implement 24 Hazard Mitigation Assistance (HMA) projects in the Puget Sound Watershed. Of those projects, 7 have been for acquisition/demolition of flood prone properties for conversion to permanent open space. The total Federal share dollar value of these projects is $5.2million, and a total of 18 flood prone structures have been approved for Page | 4 acquisition. Acquisition of flood prone structures requires the property to remain undeveloped in perpetuity, thus it is expected that a net gain in habitat functions will occur once the structures are removed. RPA Element 6-Floodplain Mitigation Activities The Biological Opinion allows FEMA to implement this element of the RPA by providing technical assistance to communities. FEMA continues to provide technical assistance to communities through writing regional guidance on implementing elements of the RPA and continuing to speak at outreach events throughout the Puget Sound. During the interim period prior to full implementation FEMA has required local communities to log floodplain development activities, assess the impacts using the current tools available, and mitigate for any identified adverse effects. FEMA fully believes that mitigation is best achieved at the time of permitting and at the local level. FEMA is working closely with NMFS to develop a workshop to help local community officials understand and make “effects determinations.” This course will provide local communities with detailed information on how to conduct and/or interpret habitat assessments that are provided to them for permitting. FEMA, in partnership with NMFS, plans to conduct this workshop in at least 4 locations over the next year. Once the course has been developed, FEMA will make it available on line for practitioners wanting a refresher or for people not able to attend one of the four workshops. RPA Element 7-Monitoring and Adaptive Management FEMA has developed an interactive website that will be used to reach out to communities and citizens. The website contains examples of correspondence that has been sent to the communities, the model ordinance, the checklist, guidance documents, samples of habitat assessments and on-line training, and other useful links for communities and citizens to become more informed on the NFIP and the Endangered Species Act. FEMA has participated in over 140 public meetings or conferences in which we have reached out to communities, public partnerships, tribes, and other interested parties. NMFS has also participated in several of the events alongside FEMA. FEMA continues to reach out to its partners in the implementation of the NFIP. These meetings provide opportunities for FEMA to educate, answer questions, and demystify the process for gaining compliance with the Biological Opinion and the ESA. Appendix F contains the delinquent reporting spreadsheet for all responses received from communities for 2009. 97 communities responded. 567 permits were reported in the Puget Sound region from October 22, 2008 to October 1, 2009. The majority of reports for the 2009 reporting cycle were submitted by March 2010 after a significant amount of contact efforts. 12 permits included an evaluation of the impacts on salmonid habitat. Page | 5 Appendix G contains the reports details on permits for communities for October 1, 2009 to September 30, 2010. FEMA added questions to the reporting tool to help determine the amount of fill that has been placed in the floodplain. This will help FEMA determine the amount of take that has occurred during the implementation period. 280 permits have been reported from 32 communities as of the date of this report. 13 required habitat assessments to be made. Conclusions FEMA continues to make progress in implementing the Biological Opinion. FEMA has developed a strategy for additional efforts to ensure full compliance with the Biological Opinion before the deadline of September 23, 2011. We recognize there are many challenges ahead and are working hard to influence change in the 40 year old culture of floodplain management. Change does not come quickly or easily, but we believe we have and will continue to demonstrate progress in influencing the change in policies in floodplain management at the local level, where true effective implementation will occur. Page | 6 Appendices Appendix B: Community Compliance Choices City/County/Tribe County Tier Door # CRS Type 2009 Report 2010 Report Auburn King 1 1 5 City Y N Algona King 3 City Y N Anacortes Skagit 3 3 City Y Y Arlington Snohomish 2 City Y N Bainbridge Island Kistap 2 City Y N Beaux Arts Village King 3 City Y Y Bellevue King 3 5 City Y N Bellingham Whatcom 1 City Y N Black Diamond King 2 City Y N Blaine Whatcom 3 City Y N Bonney Lake Pierce 3 City Y N Bothell King 3 City N N Bremerton Kitsap 1 City Y Y Brier Snohomish 3 City Y N Buckley Pierce 1 City Y Y Bucoda Thurston 3 City N N Burien King 3 City Y Y Burlington Skagit 1 2 5 City Y N Carnation King 2 City Y N Clallam County Clallam 1 County Y N Clyde Hill King 3 City Y N Concrete Skagit 1 3 City Y N Coupeville Island 1 City Y N Covington King 3 3 City Y N Darrington Snohomish 1 City N N Des Moines King 3 City Y N Duvall King 2 City Y N Eatonville Pierce 3 City N N Edgewood Pierce 3 City Y N Edmonds Snohomish 3 City Y Y Enumclaw King 1 City Y N Everett Snohomish 2 City Y Y Everson Whatcom 1 7 City Y N Federal Way King 3 City Y N Ferndale Whatcom 1 City Y N Fife Pierce 1 5 City Y Y Fircrest Pierce 3 City Y N Forks Jefferson 3 3* City N N Gig Harbor Pierce 3 City Y N Gold Bar Snohomish 2 City Y N Granite Falls Snohomish 2 1 City Y N Hamilton Skagit 1 3 City Y N Index Snohomish 2 6 City N N Island County Island 1 County Y Y Issaquah King 3 5 City Y N Jefferson County Jefferson 1 County Y Y Kenmore King 3 City Y N Kent King 2 6 City Y Y King County King 1 2 2 County Y N Kirkland King 3 City N N Kitsap County Kitsap 1 County N N La Conner Skagit 1 8 City Y Y Lacey Thurston 3 2 City Y Y Lake Forest Park King 3 City Y N Lake Stevens Snohomish 3 City Y N Lakewood Pierce 3 City Y N Langley Island 1 City Y N Lower Elwha Klallam Clallam 1 8 Tribal N N Lummi Nation Whatcom 1 3 8 Tribal Y N Lyman Skagit 1 City Y Y Lynden Whatcom 1 City Y Y Lynnwood Snohomish 3 City Y N Marysville Snohomish 2 City Y N Mason County Mason 1 County Y N Medina King 3 City Y N Mercer Island King 3 3 City Y Y Mill Creek Snohomish 3 3 City Y N Milton Pierce 3 City Y N Monroe Snohomish 2 City Y N Mount Vernon Skagit 1 2 7 City Y N Mountlake Terrace Snohomish 3 City Y N Mukilteo Snohomish 3 City Y N Nooksack Whatcom 1 City Y N Normandy Park King 3 City Y N North Bend King 2 6 City N N Oak Harbor Island 1 City Y N Olympia Thurston 3 City Y Y Orting Pierce 2 6 City Y Y Pacific King 1 City Y Y Pierce County Pierce 1 3 County Y N Port Angeles Clallam 1 City Y N Port Orchard Kistap 2 City N N Port Townsend Jefferson 1 City N N Poulsbo Kistap 2 City N N Puyallup Pierce 1 City Y Y Rainier Thurston 3 City N N Redmond King 3 City Y Y Renton King 2 6 City Y Y Roy Pierce 3 City N N Ruston Pierce 3 City Y Y Sammamish King 3 City N Y San Juan San Juan 3 County Y Y Sauk-Suiattle Tribe Skagit 1 Tribal Y N SeaTac King 3 City Y N Seattle King 2 City Y N Sedro-Woolley Skagit 1 City Y N Sequim Clallam 1 City Y N Shelton Mason 3 City Y N Shoreline King 3 City Y N Skagit County Skagit 1 1 4 County Y N Skokomish Indian Tribe Mason 1 2 Tribal Y N Skykomish King 2 City N N Snohomish Snohomish 2 City Y N Snohomish County Snohomish 1 4 County Y N Snoqualmie King 2 5 City N Y oqualmie Indian Reservati King 2 Tribal N Y South Prairie Pierce 2 City N N Stanwood Snohomish 2 City Y N Steilacoom Pierce 3 City Y Y Sultan Snohomish 2 7 City Y Y Sumas Whatcom 3 3* 7 City Y N Sumner Pierce 1 City Y N Tacoma Pierce 1 City Y N Tenino Thurston 3 City N N Thurston County Thurston 3 5 County Y Y Tukwila King 2 City Y N Tumwater Thurston 3 City Y N University Place Pierce 3 City N N Whatcom County Whatcom 1 6 County Y Y Wilkeson Pierce 2 City N N Woodinville King 3 City N N Yelm Thurston 1 City Y Y *Outside of P.S. Watershed Appendix C: Response to Comment On March 9, 2010, FEMA requested and received comments from stakeholders on the model ordinance and regional guidance documents. Over 160 responses were received from a variety of different respondents including; tribes, counties, city governments, ports, environmental groups, industry, and state offices. FEMA’s response to comment is sorted using the model ordinance outline. Outside FEMA’s authority Section 1.4: “Model goes beyond court decision”. • The M.O. is intended to provide ESA coverage for a community. The court decision only addresses salmonids in the Puget Sound. Thus some of the language is optional as indicated in the response sections. • Sec 1.4, 2 Regulatory Floodplain: should be revised to include only those areas within the regulated SFHA and the Protected Area within it; otherwise it is outside FEMA authority • Section 3, Regulatory Data, pg 22: FEMA can’t require expansion of regulatory authority • Section 3.1 commentary: Exceeds BiOp requirements • Section 3.4: Regulatory floodplain expands beyond FEMA’s authority to regulate • Section 3.4.A: Protected Area-Commentary: Clarify application of the Model Ordinance and the NFIP outside the SFHA • Regulates lands outside SFHA • Section 3.5: SFHA, floodway, and channel migration zone are within FEMAs legal authority the Riparian Habitat Zone is not • Riparian Habitat Zone is not within FEMAs authority to administer • Preservation of habitat of listed species is not within the purpose of the FIA • Model ordinance regulatory authority beyond the SFHA can’t be required • Goes beyond FEMA’s NFIP mandate and authority • Specific: eliminate all sections that reference elements outside of FEMA authority • MO exceeds what existing ESA regulations impose • concern of expansion of the NFIP into non-floodplain areas • model should limit application to flood hazard areas only • FEMA’s regulatory authority ends at the edge of the Special Flood Hazard Area (SFHA) however, communities still have a responsibility to comply with the Endangered Species Act (ESA), regulated by NOAA and Fish and Wildlife Service. The Biological Opinion (BioOp) and the accompanying Reasonable and Prudent Alternatives (RPA), provided by the National Marine Fisheries Service, provide a path for communities to comply. If a community chooses not to enforce the performance standards of the BiOp outside of the SFHA they leave themselves vulnerable to ESA claims either by NMFS or a third party. • The ESA requires federal agencies to utilize their authorities to further the Endangered Species Act’s purposes and to insure no action jeopardizes species or adversely modifies their habitat. Implementing the Federal Insurance Administrator (FIA) or the National Flood Insurance Program (NFIP) is an agency action. 1 Section 7.7 and 7.8: shifting Federal ESA responsibility of ESA effects determinations to local communities is outside of FEMA’s authority • The minimum NFIP regulations (44CFR 60.3(a) (2)) require that a community ensure that all necessary permits have been received from all Federal and State agencies from which approval is required. The model ordinance is providing a programmatic option for communities to demonstrate compliance without having to go permit by permit. MO (and BiOp) improperly modifies the 2005 Critical Habitat Designations. Neither takes economic impacts into account. • The Model Ordinance is based on science provided by NMFS in the Biological Opinion. The boundaries for critical habitat are designated by the applicable ESA regulatory agency and, are indeed, outside FEMA’s authority to change. In this case, the National Marine Fisheries Service would be the correct agency to address concerns about modifying Critical Habitat designations. FEMA has alerted NMFS to these issues. Section 4d, ESA takes precedence for local communities, therefore they need only comply with the standards found in section 4d to be in compliance with ESA. FEMA cannot impose greater standards than the 4d rule. • Local governments in the State of Washington have not applied for consultation under the 4(d) rule to gain a safe harbor. The coverage is not automatically provided. ESA and Taking • MO exposes local governments to inverse condemnation and substantive due process claims • Model ordinance is a constitutional taking: blanket 250 buffer goes beyond what is necessary to prevent harm • Section 3.4: Reference material doesn’t support; subject to legal takings 2 Sec 5.1 and 5.2: takings • Takings issue for lots partially in FP: Potential takings requiring development in portion outside FP. See Section 5.1 and 5.2 • Section 5.2.b.2 causes a conflict with the critical area ordinances use exception for properties with limited developable area. Possible take scenario. • Section 5.2.a.1: Absolute requirement outside FP, if available, is a takings (like septic system needs to perc, but can’t build on top of septic) • Section 5.2: Site Design: Should not require buildings to be located outside of floodplain if there is a buildable space. • The Riparian Habitat Zone in the Model Ordinance is based on science found in the Biological Opinion, issued by NMFS, to prevent harm. The community has the option to demonstrate that their science is more applicable to their site conditions through the checklist option, or through the individual site assessments. They do not have to choose to incorporate the Model Ordinance if there is a better way for them to show compliance. • If local governments believe that the M.O. would be subject to a constitutional takings claim, then they have the option of demonstrating, through the checklist, how their community is able to comply with the ESA and are adhering to the performance standards of the BiOp. Otherwise a demonstration of compliance permit by permit will be required. Science behind the BiOp and Model Ordinance Requirements Section7: What are functioning habitats? • See discussion in the BiOp on effects of development on habitats for the listed species. FEMA nor Communities have the authority to determine what salmon habitats are functioning. FEMA nor Communities have the authority to de-designate Critical Habitat. Allowing local governments to limit habitat protection in areas that don’t contain function needs to be removed. • Communities make similar determinations already under SEPA and their SMP programs. If the science presented is consistent with industry standards and has been peer reviewed FEMA is willing to accept the science. General comments received regarding the science used for the Biological Opinion; • Don’t agree with science and BiOp • BiOp is bad science • Science: not substantiated in BiOp • Uses hodgepodge riparian science approach • As mentioned under the “exceeds authority” response, the BiOp was written by NMFS. If there is a question regarding the validity of the science, it needs to be addressed by NMFS. FEMA is implementing the Biological 3 Opinion based on the information provided to us by NMFS. FEMA has alerted NMFS regarding this issue. Not all of the Special Flood Hazard Area is critical Habitat • Correct. Not all SFHA has been designated critical habitat, however, the biological opinion determined that development in the SFHA may have an adverse affect on species and therefore must be avoided. In the Protected Area the project must avoid the impact or redesigned to avoid the adverse affect. In the remaining SFHA the adverse affect may be mitigated through other traditional means of mitigation. Would request the model ordinance to only apply to listed species identified in BiOp • The model ordinance is designed to provide coverage under the Endangered Species Act. This may include species other than those listed in the biological opinion. However, the community checklist approach provides a programmatic way for communities to comply with the biological opinion in a manner that only takes into account the impacts on the biological opinion species. Rural vs. Urban interface within the Biological Opinion • Section1.4: RHZ need to reflect urban densities • Model ordinance in general is geared towards rural environments not urban landscapes • Existing urban areas should be treated differently than undeveloped rural areas • Fails to provide for the built environment • The BiOp and model ordinance need to recognize developed areas • Model ordinance fails to distinguish between urban and rural floodplains • Section 3.4: Riparian Habitat Zone ignores the urban landscapes • MO should recognize existing developed areas and provide reasonable avenues to maintain and redevelop those areas; they could integrate features that could improve habitat • RHZ is inconsistent with developed conditions within cities • Sec 5.2.a, 7.4, App 4a,5b: regs need to explicitly authorize and address redevelopment requirements in existing urban properties • Sec 3.4.c.1: DOE will be working with every community to apply the best science, including an assessment of shoreline conditions and land use trends to come up with protective buffers and other standards. One size fits all is inconsistent with SMA. • Sec 3.4.c.1.d: Riparian zone for nonsalmonid perennial and seasonal streams with unstable banks is listed as 225 ft. Excessive • Sec 3.4.c.1.e: 150 feet for type N streams is 100ft further than most local statutes; should be determined by prevailing foliage and land use • Section 7 implies that remaining habitat in urban areas have no intrinsic value to the protection of species 4 • The Riparian Habitat Zone and the Model Ordinance are based on the science used by the Biological Opinion. The community has the option to demonstrate that their science is more applicable to their site conditions through the checklist option, or through the individual site assessments. Open Space requirements • Sec 7.2.d: How could open space and recreational facilities realistically be developed without so much as a sign? How could a trail be constructed without fill or grading? • Section 5.1 commentary on open space yet we don’t define FP open space • Sec 7.2.d: Eliminate – how do develop open space? • Section 5.1: Subdivisions should set aside open space, requirement or guidance? • Section 5.1.B: Subdivisions: Specify criteria for open space preservation • Sec 5.1.B and C: Request that the subdivision and open space lot requirements be deleted. If other provisions are met, outright prohibition of new lots in reg FP unnecessary burden. • The requirement to set aside open space in subdivisions is guidance located in the commentary to section 5.1B and in the Biological Opinion in Appendix 4, Section 3.11. Open space is allowed to have limited development such as small trails that allow for shorelines access as required under the Shorelines Management Act. The development of these trails may require activities that require a floodplain development permit and should demonstrate no adverse affect. Buffer Requirements • Habitat Zone: Does it extend 250 from shorelines of the state or 150 from lakes? • Section 3.4: Stream types exceed BiOp and expands NMFS jurisdiction without justification • Buffers for non-fish bearing streams (ditches) are excessive • Increase in the Buffers from the BiOp to the Model Ordinance • Buffers are larger than currently required under the Washington State law • Section 3.4.C.1: dimensions for don’t match May 14 errata ltr and App E of the Model • Sec 3.4.c, 7.4.c, 7.7, App F 5.c, 5D: Allowing submittal of delineation procedures and the science it is based upon is workable • Sec 3.4.c.1: Applying 250’ RBZ on lakes would result in very wide areas becoming nonconforming and subject to the permit • Sec 3.4.c.1: (a) states 250 feet from marine where (b) states 200 feet. Shoreline versus fish bearing shoreline? • Sec 3.4.c.1: Doesn’t match May 14, 09 addendum: 250 shoreline streams, 200 marine shorelines, 150 lakes. • Sec 3.4.c.2: Appears to extend zone of coverage to up to 550 ft from Type S waterbody; 450 ft from a Type N(which can include some roadside ditches). • Sec 3.4: PA could extend beyond 250 ft because of undefined CMZ • Buffers may not be justifies in science • Section 3.4.c.1.a-e: unreasonableness of the buffer (RHZ) • The stream buffers we amended by NMFS via an errata sheet issued on May 14th, 2009 and can be found here: o https://pcts.nmfs.noaa.gov/pls/pcts­pub/pcts_upload.summary_list_biop?p_id=29082 • The model ordinance and the guidance documents reflect the buffer requirements in the May 14th errata sheet. • The buffers may exceed the minimum buffer required under Washington State law. However, a community may be able to justify smaller buffers through the programmatic checklist option. • FEMA cannot determine the extent of NMFS jurisdiction for implementing the ESA. Contact NMFS to determine the bounds of their jurisdiction. 5 Native Vegetation • Pg 43 Sec 7.1.b: Clarify vegetation removal to avoid jeopardizing overhead electric utilities • Pg 43, Sec 7.1.d: Clarify the maintenance of overhead utility facilities. Drop the “public”. Add “poles” (see example) • Confirmation that if no native vegetation, then outside the protected area, development would be exempt from veg criteria • Section 7.4.b: exposes legal claims for restrictions in excess of a projects impacts? • Mandating 65% native vegetation retention is not permitted under WA law • Section 7.4: Native Vegetation: No removal of Native Vegetation in an RHZ could be considered a taking, since there is no mitigation option. • Prohibition on removing native vegetation in the RHZ may keep new terminals from built and precludes maintenance activities if a native species grows in a developed area • 35% limit on native vegetation removal outside protected area could result in sprawling development • Need guidance on how to apply vegetation requirements over an expanded timeframe • Section 7.4: Native Vegetation: 65 % of native Vegetation should apply to rural areas not urbanized areas • Sec 7.4.B: Does not reflect the language in 5b of the checklist • Sec 7.4: MO mandates that property owners set aside 65% of their land containing native vegetation as no development zones • Sec 7.4: How does leaving 65% of the surface area of the portion of the property in the fp in an undeveloped state affect property in the fp that is already developed. • Sec 7.4a and b: Add “except as provided in subsection C, below,” to allow habitat assessment drive limitations on veg removal. • Sec 7.4: Absolute requirements on vegetation, which is counter to CAO, which is determing impacts/mitigation based on habitat function and value such as vegetation. • Sec 7.4: Define density of native vegetation to qualify for leaving undisturbed. Single plant id should not be sufficient to alter the proposed project • Sec 7.4: Can require transplantation of native vegetation to project mitigation areas to establish or enhance target species 6 • The model ordinance states the requirement to leave 65% of the native vegetation in the inverse (remove no more than 35%) in order to better clarify the requirement. Vegetation can be removed if it can be demonstrated that there would be no adverse affect. Lots that do not have vegetation or have been previously developed cannot be expected to retain vegetation that has been lost, only to preserve the vegetation that still exists. Process Respondents input regarding the process for developing the Model Ordinance, suggesting inadequacies and concerns over implementation of the RPA. Rulemaking procedures • Need to follow the Federal Administrative Procedures Act • Was a regulatory flexibility act analysis followed? • Section 7.8: Have NMFS Guidance document and FEMA modifications gone through rulemaking? • Ordinance requires rulemaking – didn’t follow rule making procedures • FEMA must use rule making to modify its minimum criteria to address ESA listed species • Recommend amend 44 CFR Part 60.3 • FEMA believes that 44CFR 60.3 (a)(2) provides a sufficient requirement that all necessary permits (a section 10 Incidental Take Permit may be a necessary permit) be obtained prior to permitting a development. FEMA is not changing the regulations, just enforcing the regulations as they currently exist. Therefore, developing the model ordinance and checklist does not qualify as rulemaking nor is it considered to be a modification to the action as described in the EIS of 1976. • FEMA Headquarters is currently involved in discussions regarding NFIP reform. Environmental standards are being evaluated for inclusion in the reform effort. Included in this reform would be both legislative and regulatory adjustments that would require APA procedures. NEPA process • Was the NEPA process followed? • Not complied with NEPA • Need to do NEPA • Model Ordinance should be subject to NEPA • Programmatic changes proposed by the model ordinance trigger a NEPA review. FEMA should use NEPA to identify alternatives to the RPA • EIS is essential to understanding, communicating and mitigating impacts 7 • FEMA is not changing the regulations, just enforcing the regulations as they currently exist. Thus it does not qualify as rulemaking nor is it considered to be a modification to the action as described in the EIS of 1976, hence there is no trigger for applying the NEPA process. Certification FEMA has not described the process for certifying communities compliant with the BiOp. • Communities will submit their packets of information to FEMA’s regional office. FEMA will review the packets against the model ordinance or the checklist (whichever is appropriate) to determine if the communities rules, regulations, ordinances, etc… are compliant with the performance standards of the BiOp. FEMA will provide a letter of compliance to communities once the review is complete. FEMA’s Focus Group and public involvement • Step back from current approach and create an open process for resolving these issues. • Request involvement when revising the focus group products and developing other BiOp related policies and products. • Rural communities were inadequately represented • Coordinate better with local government • Insufficient stakeholder involvement • Insufficient outreach and community involvement • Public involvement insufficient to reaching a constructive solution within this complexity. Ready to support and engage with FEMA and NMFS and others. • FEMA believes that the Focus Group of local communities who administer the National Flood Insurance Program provided the best range of stakeholders. Local communities responsible administering the rules and regulations had the most insight and understanding of the NFIP and were able to help develop a model ordinance and guidance documents that would best meet their needs and enable them to understand and interpret the implementation plan and choose options best suited for them. • FEMA’s Focus Group represented a cross section of the affected communities. All of the counties represented have large rural areas as well as urbanized areas and FEMA believes they adequately represented the rural communities in the Focus Group discussions. • FEMA is always willing to have discussions and meet with stakeholders regarding the implementation plan. However, the biological opinion provides specific deadlines for compliance and FEMA must move forward in order to meet those deadlines. Extend the comment period and Tier maturation dates • Need more time to review • Request extension to comment period and opportunity to review with FEMA officials • Request extension of comment period another 60 days’ • Encourage more time for comments • Please provide Tier 1 communities at least 6 more months to get to full implementation • FEMA is working hard to meet the implementation deadlines for communities set by the Biological Opinion. Because of the impending deadline FEMA cannot extend the comment period. • However, FEMA has recently requested an extension of 1 year for all tiers in order to allow FEMA to work with local communities and gain more compliance with the Biological Opinion. 8 Implementation Options Model Ordinance as an option for local communities • BiOp doesn’t allow for a model ordinance approach • Model ordinance does not protect citizens or the environment • Don’t comingle FEMA NFIP standards with BiOp based standards • Model should address only future development and require mitigation for that only • Section 7 commentary: why in the commentary and not in the body of ordinance? • MO does not meet the RPA • Model ordinance is one size fits all. Should recognize differences within FP and PA and provide flexibility to achieve the BiOp goals • Model ordinance has many excellent provisions that will increase protection of critical riparian and floodplain areas • How do you plan to utilize the model ordinance? • What is impact if community doesn’t adopt model? • MO should clarify intention to protect natural floodplain function where it exists, not restore developed floodplains • The model ordinance is a piece of technical assistance provided by FEMA to use the performance standards that are provided in the BiOp and create a programmatic approach for compliance in a familiar format. A community may choose to use all or part of the model ordinance to address the areas of the biological opinion that they are unable to meet using their current regulatory framework. The model ordinance is designed to guide development away from the floodplain and therefore out of sensitive habitat areas. However, since the Federal government cannot prohibit development in certain areas, performance standards are placed on areas that may be sensitive to development. • A community may decide to provide their best available science to demonstrate that the buffers should be less in their community. This would be an example of a community using the checklist option to demonstrate compliance. • A community has two other options to choose from; a programmatic approach using the checklist or permit by permit demonstration of compliance. If a community is unable to prove either programmatic or permit by permit compliance then FEMA will provide technical assistance to help the community comply. If the community continues to fail to comply, they may be placed on probation or even suspension from the NFIP. 9 Checklist as an option for the local communities: • Section 3.4.c: Model Ord doesn’t provide approval criteria for community submitted alternative mapping • Section 7: What level of documentation is required • Option to negotiate a fourth route for compliance (Programmatic Flood Zone Permit) • How will the checklist be used? o The Biological Opinion checklist will be used by FEMA to evaluate a community’s submittal of their rules, regulations, ordinances, procedures, etc… to determine if they meet the performance standards of the biological opinion. The process is similar to the process currently used to compare local NFIP ordinances against the performance standards of the NFIP. If a community falls short of a performance standard, yet they believe the current regulatory environment provides adequate protection meeting the intent of the performance standard, then the community may submit their alternative approach for FEMA to evaluate. • For example: • A community may submit alternative “science” to provide evidence that the buffers should be less than those that are contained in the BiOp. The “science” must be consistent with industry standards and preferably been peer reviewed. Permit by Permit determinations for local communities: • Sec 1 Intro: permit by permit will cause additional expenses and delays and should be considered before implementing this MO; Page 2: Explanation requested on Option 3 (permit by permit); • Projects may require a consultation without a federal nexus. This will stall projects already planned. • NMFS has no process to respond to permit by permit • Will increase workload on the Services and slow the process • Permit by permit will create backlog and permitting delays, including non FP permits (indirectly) • BiOp does not provide for permit by permit option of implementation plan. • Permit by permit is the default for communities to demonstrate compliance with the ESA when issuing floodplain development permits. 44CFR 60.3 (a)(2) states that a community must ensure that all other necessary federal, state, local permits have been obtained when issuing a floodplain development permit. A section 10 Incidental take permit may be a necessary permit and therefore a community must demonstrate that each permit issued is compliant with the ESA. The Biological Opinion outlines many aspects that should be 10 considered in reaching that determination of impact. FEMA has developed guidance on conducting that assessment to also help communities with this requirement. If a community receives a habitat assessment that determines the project will not cause an adverse effect then a permit may be issued, if there is an adverse effect or likely to adversely effect, then the project must have undergone consultation in order for a permit to be issued. • This is not FEMA’s nor is it NMFS’ preferred option, however Section 10, ESA allows for non-federal parties to consult on projects that may affect an endangered species. The M.O. and the Checklist are two programmatic options for communities to be able to demonstrate that any floodplain development permit issued by the community will be compliant with the ESA and therefore not require a permit by permit consultation. • FEMA expects that NMFS will be consistent with the Biological Opinion when consulting on projects within the floodplain under other sections of the ESA. Requirement to obtain a Permit from NMFS: • There is no ESA permit, so 60.3.a.2 is not valid • No ESA permit is required from NMFS • Successful consultation under section 10 of the ESA provides the applicant with an Incidental Take permit. This permit may be necessary for a project, in order for it to be completed in an area outside the protected areas that is environmentally sensitive and cannot avoid adverse effects. Mitigation measures may be required, to obtain an Incidental Take Permit. Model Ordinance allowing an adverse effect: • Model Ordinance allows adverse effects in the Protected Area • The M.O. was revised so that no adverse effects are allowed in the Protected Area. Those projects that are determined to have an adverse effect are required to be redesigned so there is no adverse effect. Requirements outside of protected area but within the Special Flood Hazard Area • Sec 3.4.c commentary: only allows exclusion from definition of PA as part of the RBZ. But it is still in SFHA and subject to all BiOp based development regs in model Ord. • May be determined to be outside of the Protected Area, but SFHA requirements still apply. If outside of PA, then the project may be allowed to use other mitigation techniques as spelled out in the BiOp and explained in the Regional Guidance Document on Habitat Assessment and Mitigation. Potential expansion to rest of WA • Request involvement if expanding this beyond Puget Sound communities • Application of the MO outside PS would require a Biological Assessment • Statewide Consultation • Model Ordinance should state applicability to Puget Sound communities only 11 • FEMA has provided a BA for the entire state of Washington to NMFS and requested consultation statewide. NMFS has only issued phase 1 of the Biological Opinion thus far. When the NMFS provides the second phase of the Biological Opinion FEMA will conduct a similar implementation plan for the rest of the state of Washington • The current M.O. is intended to address the requirements for Puget Sound communities that wish to demonstrate compliance with the ESA. However, FEMA believes communities that are outside of the Puget Sound will be able to use this ordinance to demonstrate compliance with the ESA since the M.O. is not based on just salmonids. Jurisdictions BiOp addresses FEMA actions and not the local communities: • BiOp is directed at FEMA not local jurisdictions • Model Ordinance fails to address basis upon which FEMA can ask local communities to use the model ordinance • The NFIP is fundamentally administered at the local level, therefore is not the directly responsible for issuing permits or taking action. However, how the actions are taken and the CRS status earned by local communities in the NFIP and participating Tribes, are directly influenced by FEMA, resulting in a co-responsibility to ensure compliance with ESA. Consequently the BiOp does not just address FEMA alone. The model ordinance provides voluntary technical assistance to local communities as a way to programmatically demonstrate compliance with the ESA. The model is recommended but it is not required. Everyone has a responsibility to comply with the ESA. 44CFR 60.3 (a) (2) requires communities to demonstrate that all necessary permits have been received. Climate Change • Model Ordinance does not consider Climate Change • FEMA is currently working on a national study to determine the effects of climate change on the NFIP. The results of which were originally due at the end of 2010. Due to changing science and legislation, delays in the study have occurred, moving the completion date to the end of 2011. Recommendations from this study will be considered for the NFIP reform initiative currently underway at FEMA HQ. NFIP Reauthorization • Authority of FEMA to administer the NFIP with lack of reauthorization • The NFIP was reauthorized on June 30, 2010 and we anticipate that the program will continue to be reauthorized in the future. 12 Minimum NFIP requirements Don’t have to meet 60.3A if they are a B-E community • The regulations contained in 44CFR 60.3 build upon themselves like a staircase. 44CFR 60.3 (b)(2) states a community must comply with the standards of 44 CFR 60.3 (a) (2) through (6). 44 CFR 60.3(c), (d), and (e) all contain similar provision. Sec 7.5: MO should allow independent H&H evaluation by a professional engineer to determine the effect of fill placed within the regulatory fp, but outside the PA. • Section 7.5 applies to the floodway and therefore will always be part of the Protected Area per the definition of the Protected Area. Sec 6: Should allow multi use projects to utilize floodproofing • Non-residential structures are allowed to use floodproofing techniques under the minimum NFIP. 60.3(a)(2) Sec 4.2.F: Omit “…or letters stating that a permit is not required…” Requires local permitting agencies to determine permit necessity in writing • Local communities are required to ensure that all other permits have been received under 44CFR 60.3 (a)(2) and therefore are and should be able to make that call as to whether a permit is required or not. 60.3(c)(10) • Sec 7.5.b: Does all other past and future similar developments based upon 10% limitation or the 35% veg removal limitation? This is a FEMA or local responsibility to predict future development patterns. • Better understanding between 60.3.c.10 and compensatory storage requirements of the model ordinance. • In communities in which there is a detailed study, however no floodway has been established the minimum NFIP regulations (44CFR 60.3 (c) (10)) require the local community to demonstrate the cumulative effect of proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community. Therefore it is the community’s responsibility to determine future development, which they are already required to do based on state laws such as GMA and other planning requirements. Requirement to permit Grading and Filling • Sec 7.2.C: Remove the words grading and filling as it conflicts with Sec 7.6. enhancing natural functions of FP should be allowed, proviso net improvement. • Sec 7.2.c: Meaningless – remove the words grading and filling to make sense. Grading and filling to create wetlands is still filling. • Sec 7.2.c: Great until you add grading and filling as it relates to creating, enhancing, restoring • Sec 7.2.d: allow some quantities of grading or filling or specify no net fill. • Sec 7.2.c: Omit grading to allow removal of overburden to enhance hydrology in creating wetland mitigation sites ( or exclude wetland mit sites) • Sec 7.2.c: It is impossible to create, restore or enhance natural functions without grading or filling. 13 • Grading and filling are considered development per FEMA regulations, thus the requirement for a floodplain permit and habitat assessment. Substantial Improvement Sec2 Definitions: Substantial Improvement is too limiting: Different than the checklist pg B13 • The first paragraph is standard NFIP language. As indicated in the commentary the second paragraph is an optional higher regulatory standard. Section 7.2.a is not clear on why non-substantial improvements are required a FP development permit • A substantial improvement is considered a new structure under minimum NFIP regulations and therefore requires a floodplain development permit, however, a habitat assessment is not required unless the substantial improvement exceeds the 10% expansion of the structure beyond the footprint of the structure or the 10% impervious surfaces performance standards from the Biological Opinion. Variance requirements • Section 4.9: Variance over burdensome • Section 4.9: prohibits consideration of economic impacts for variances • Sec 4.9.a.11: provision nullifies the variance authorization • Sec 4.9.b.1: Absent a showing that the development will have an adverse effect on habitat, no basis for such avoidance • Sec 4.9.a.7 (Var Criteria): Growth management regulations should be expanded to read growth management regulations, critical area regulations, the SMP) • Sec 4.9.b.1: Change to read development project cannot be reasonably and practically be located outside the regulated floodplain • Sec 4.9 B.2 and 4: Delete criteria since not required by the BO. These are general variance provisions unrelated to FP issues and local jurisdictions should be free to adopt “reasonable use” provisions • Other than the requirement to ensure compliance with the ESA, this section comes directly from the NFIP regulation 44CFR 60.6. • The Biological Opinion requires that the development occur outside the SFHA when there is room to do so. 14 Permitting Timelines for permit expiration • Section 4.3: Bldg permits should be 5 years to expiration • Section 4.3: too short of time • Time for constructing project after FP permit process is too short • Sec 4.3: Should allow 1 year to begin work due to contracting constraints • Sec4.3: allow for a 5yr expiration, analogous to a landuse/environmental permit, similar to state statute for subdivisions (RCW 58.17.140) • Sec 4.3: allow as long as project design and impacts do not change or permit conditions should be reviewed and letter confirming no changes if don’t start w/ 180 days • The definition of start of construction under 44CFR59.1 states that the permit expires if construction is not started within 180 days. A permit can be renewed or reissued if the community wishes to allow this to occur. Requirement to permit projects beyond the SFHA. • Sec 3.2.b: MO should be modified to clarify that an applicant must submit a FP permit application to confirm that its property is outside the PA and above BFE • Section 4.1: Many normal activities will be requiring a permit • Section 4.1: Expansion of permitting requirements exceeds BiOp requirements Do not need a new “flood permit” for shorelines outside mapped floodplains. • There does not need to be a new “flood permit,” for land use activities outside the mapped flood hazard area. • FEMA is not requiring a new flood hazard permit for areas outside the SFHA. FEMA is providing a programmatic way for communities to demonstrate compliance with the ESA and the NFIP at the same time. Communities should weigh the risk of administering the performance standards outside the SFHA with the risk of action from NMFS or a third party. • A floodplain development permit is required to be submitted for any proposed project within the SFHA. The community will be responsible for determining if the project is susceptible to the rest of the requirements of the ordinance during the permit application submittal review process. • Since FEMA’s authority ends at the boundary of the SFHA, the expansion of the area requiring permits is optional and intended to help ensure that local communities that want to ensure compliance with the ESA are permitting activities in the Protected Area outside the SFHA. Permit application package requirements. • Sec 4.2.a.2: List separately or include a statement that limits the requirement of listing only waterbodies w/ 300 ft of the proposed project (implies all other features must also be identified). • Sec 4.2.a.2: Limit to those features recognizable or derived from a standard USGS map • Sec 4.2.a.7: Id of wetlands must only be required for the site plan, otherwise can be interpreted to include all wetlands within 300 ft. 15 • All of these comments are under consideration. Requirement to permit structures on existing impervious surfaces and the storage of equipment and materials • Sec 7.1: Existing impervious areas and storage yards should not need a permit as that is not the intent of the BO or the definition of development • Temporary storage of equipment and materials is in the minimum definition of development. A community may issue a programmatic permit that is issued to the applicant yearly for a specific quantity of storage. If the applicant exceeds the allowed storage then a new permit must be issued. o Structures built on existing impervious surfaces still require a permit and must meet the requirements of the NFIP including a habitat assessment if required by the ordinance. Requirement to permit remodeling projects • Sec 7.2.a: Repairs and remodels could be forced into the permitting arena • Sec 7.2.a: Could force repair and remodel projects into the permitting arena • Repairs and remodels of structures in a Special Flood Hazards Area do require floodplain development permits under the minimum NFIP in order to determine if the project is a substantial improvement. Substantial improvements are required to bring the structure into compliance with the current building standards as if the structure was a new structure. • Repairs and remodels of structures in a Special Flood Hazards Area do require floodplain development permits under the minimum NFIP in order to determine if the project is a substantial improvement. Substantial improvements are required to bring the structure into compliance with the current building standards as if the structure was a new structure. Section 7.7 and 7.8 should be reflected in 4.2 • Good suggestion, will consider how to accomplish this Site Design Section 5.2: 10% limitations difficult for commercial/industrial to meet (steering residential away, therefore we are steering commercial/industrial into the FP) • The goal is to steer all development away from the floodplain. Not just residential. The use of Low Impact Development is one way for developers to meet the no more than 10% impervious surface standard. • Sec 5.2.A: Doesn’t reflect language in Checklist 5.f or BiOp (?) • Sec 5.2: delete habitat after the phrase: “sited in the location that has the least impact on habitat by locating… 16 • The language in the model ordinance was a compromise for locations in which the highest ground possible may not be the area farthest away from the flooding source. The language in the checklist is directly from the Biological Opinion. 5 acre/50 lot rule Requirement for an applicant with a development greater than 5 acres or 50 lots to develop data: • Sections 3.4 and 3.5: BiOp requires no adverse affect in Protected Area regardless of delineation or size of development. Example of a non mapped floodway allowing 4.99 acres of FP to be developed. Should develop alternative approach to delineating the CMZ. • 40. Sec 3.5.d, Sec 3.4.b, Sec4.2.a.3, sec 4.2.a.4: requires mapping by individuals and result in defacto moratorium on 5 acres or more • NFIP requirements for development of a BFE in unnumbered A zones. A No The size limit for requiring additional studies brings the requirement in line with standard Adverse Effect call requirement in the Protected Area, The thresholds set reasonable limits on when the floodway would also be required to be delineated. Insurance Flood insurance rates • Concerned about the increase associated with this ordinance, including flood insurance costs • Insurance rates are not increased based on the provisions of this ordinance. Many of the provisions will allow for CRS credit and therefore will provide for a lower insurance rate in many communities. Recreational vehicles in the floodplain • Concerns about minimum standards affecting water quality, particularly with rec vehicles and accessory structures. • This is the same under the minimum NFIP. FIRM Mapping Flood Insurance Rate Maps • Old FIRM maps • Old FIRM maps • Old maps in San Juan County 17 • FEMA has embarked on an effort to update the nation’s floodmaps. FEMA is currently sequencing the Region X efforts and the San Juan county maps are scheduled to be updated beginning in the FY 2011 cycle. Habitat Assessments Requirements Habitat assessment requirements in Model Ordinance and BiOp The BiOp and Model Ordinance should not require a both/and analysis: Requiring owners to conduct habitat assessment if they meet development standards of the model ordinance is inappropriate • Section7.7: If complying with Section 5, why do 7.7? • Model requires comply with development regs and prepare habitat assessment which is duplicative. It requires restorative actions below baseline conditions • Development in the SFHA but well away from a RHZ should not be required to do a habitat assessment. • The model ordinance has been revised to allow a project that meets the minimum performance standards to avoid the requirement for a habitat assessment. • A community may develop a communitywide assessment that demonstrates that development in certain areas in the SFHA but outside the Protected Area does not cause indirect adverse affects. The community may submit that information as part of their checklist option similar to submitting best available science to reduce the buffer widths in the Riparian Buffer Zone. Sec 7.7.D: Request a streamlined format for the habitat analysis (see USACE BE) • The format found in the Model Ordinance us guidance, not a requirement. Other formats that address the pertinent elements of the assessment would be acceptable. If applicant consulted with NMFS, should be exempt from all BiOp based provisions of the MO – not just prep of a habitat assessment • FEMA expects NMFS to be consistent with their determination of No Adverse Affect and require performance standards at least equal to those in the Model Ordinance and the Biological Opinion when they are consulting on projects within the SFHA. Habitat assessment required regardless of critical habitat designation will add time/expense and delays • The community has a responsibility to ensure that all necessary permits have been received under 44CFR 60.3 (a)(2) and therefore must demonstrate that the project is compliant with the ESA. The model ordinance and checklist approaches provide 2 programmatic approaches for ensuring compliance the 18 ESA. The time and cost associated with developing in the floodplain should be weighted in the decision to move forward with the development. Sec 7.7: Exemptions should be granted for sites characterized with existing development and impervious surfaces. • Areas with existing structures and impervious surfaces may still provide some other forms of functionality to the floodplain (i.e. storage, and refuge) and therefore conducting a habitat assessment will ensure that no further function of the floodplain is lost if a site is redeveloped. Sec 7.7.d.1: Insert “Critical Habitat is designated” for “a species is listed as threatened or endangered” should read, “The primary constituent elements identified when a species Critical Habitat is designated, “ • Modified to address other comments. ESA decision making in the Flood Plain should be an objective evaluation and assessment of resource conditions • FEMA has provided guidance on conducting habitat assessments in which an assessment is conducted on site to determine the affects a project might have on environmental functions. Mitigation and Sequencing • There is no clarity regarding sequencing: Mitigation is not clear on sequencing (avoid, minimize, rectify, compensate). See MO: 5.2.b.2; HA Section 5 • Why should a property owner have to avoid if no habitat or where he can full mitigate any impacts? • Poor Mitigation planning: Mitigation should be an option everywhere, not just outside the protected area. • Section 7.8 and Step 5 of HA Guide: Sequencing should not be required in areas without Critical Habitat. Development should not be required to produce equal or better habitat. • Section 7.8.a.2: change to clarify that an applicant for development in the Protected Area must proactively demonstrate no adverse affects. Allowing for appropriate measures to mitigate for development does not meet RPA. • MO is internally inconsistent with regard to Sequencing • The Biological Opinion calls for a No Adverse Effect standard in the Protected Area and therefore traditional mitigation techniques such as minimization and restoration are not available. The only mitigation technique available in the Protected Area is avoidance. In the SFHA outside the Protected Area minimization and restoration are available. However sequencing provides the greatest level of protection to the environment. Sec 7.8.b: Does not make sense, self evident to the ordinance purpose • This section provides certainty that the mitigation plan is made to be a condition of the permit. 19 Section 7.9: Why isn’t there an ESA requirement for alteration? • A watercourse alteration will require a LOMR. While processing the LOMR a demonstration of compliance with the ESA is required. A CLOMR, when required or requested, will undergo Section 7 consultation and can be used as the demonstration of compliance for the LOMR request. Bluffs • Sec 3.4.c.1 commentary: Many bluffs and steep slopes are critical to supply of beach material, resulting in a vital function for PFC habitat in the nearshore. • High Bluffs are not in the flood zone • High Bluffs may not be in the SFHA by elevation. However, due to the scale of FEMA’s mapping often bluffs are not detailed enough in the topography to be shown as out of the SFHA. However, many of these bluff areas provide materials to nourish areas that provide refugia to species and environmental impacts should be considered before development occurs on or near the bluffs edges. Regulatory Environment State Laws How does the model ordinance incorporate state and local regulatory requirements and how can they be made consistent • The model ordinance does not take into account many of the local and state regulatory laws because many of those programs have not been consulted on with NMFS and therefore are not programmatically compliant with the ESA. This does not mean that the current regulatory framework is not ESA compliant in many communities. This is why FEMA decided to provide the opportunity for local communities to submit their rules, regulations, ordinances, procedures, etc… to us in order to compare them to the performance standards set forth in the biological opinion. FEMA should accept critical area ordinances as assurance that the Protected Area is being addressed per the BiOp standards • FEMA believes that many critical areas ordinances already contain provisions that would meet the performance standards of the biological opinion. However, programmatically the CMA process has not been consulted on and therefore cannot be automatically considered compliant with the biological opinion standards. A community that believes they already have the standards 20 in place to demonstrate compliance with the biological opinion should use the checklist option. Doesn’t allow public access in shoreline area • FEMA has designed the model ordinance to be compliant with the biological opinion and the minimum NFIP as well as the state floodway development standards. The SMP and GMA have not been through formal consultation and local communities must determine the best path forward in order to comply with all applicable laws and regulations. Biological Assessments add time and money, SEPA could be used • FEMA has found that many communities exempt smaller projects such as single family structures from the SEPA requirement. SEPA could be used as a screening tool if such exemptions were removed. Many respondents were concerned regarding the use of the current regulatory landscape for demonstrating programmatic compliance with the Biological Opinion • May require cities to exceed requirements of the NFIP, Washington Law, or the BiOp • Model ordinance does not allow for communities to demonstrate that the current regulatory landscape is sufficient. • The Model Ordinance is disconnected from the Shoreline Master Program and the GMA CAO process and their Best Available Science requirements • GMA Plans and Critical Areas should be considered sufficient • The habitat portions of the model ordinance will be helpful to communities that have not enacted GMA • Using materials and standards of a state resource agency is considered Best Available Science • Model Ordinance is duplicative of current State requirements • City Regulations currently prohibit structures in the 100 year floodplain and only allow limited development to occur (i.e. recreation trails, boat launches) • WAC citation should be updated for Fish and Wildlife Habitat Conservation Areas. Should use these local determinations to regulate buffer requirements • Allow SMPs approved by DOE under the new guidelines as acceptable alternative. • More restrictive than SMA or CAO. • Concepts are supported by SMP and CAO • Model may conflict with SMP • Roadblocks to best available science – supercedes CAO particularly when no species present • MO doesn’t recognize public access, which is a recognized exception to many current ESA regulations • Updating regulations is out of sync with state requirements and does not provide resources • MO commentary should acknowledge that the expectation is that no changes should be required if a designated CAO. • MO commentary and checklist should discuss that water dependent commercial and industrial uses are a preferred use of the shoreline, according to SMA. • Encourage a more seamless integration with state polices and programs (GMA, SRP, PSP, NPDES, SMP) • Section 3.2.a and b: SMP already has FP plus 200 feet 21 • This why FEMA has provided option 2 using a programmatic checklist for communities to compare their current regulatory landscape and determine if they meet or exceed the performance standards of the biological opinion. Allowed uses should include bridges that support public access • Bridges are allowed as long as they are able to be constructed in a manner that has no adverse affects. Bridge b=projects should at least go through a habitat assessment or a consultation under section 7 (federal nexus) or section 10 (HPA). Current Washington laws do not sufficiently protect resources and habitat • FEMA recognizes that the many of the current rules and regulation under Washington State law have not undergone consultation with NMFS and therefore cannot be determined to be programmatically compliant. However, local applications of these laws and programs may provide adequate protection and thus may meet the performance standards of the biological opinion. Tribal Zoning allows no development in riparian zones and riparian and floodplain habitats are mostly intact • Tribes have the authority to place whatever restrictions they deem necessary on lands under their jurisdiction. However, FEMA cannot prohibit development in an area; FEMA can only set performance standards that must be met in order to allow for some economic use of the property. MO should allow in limited areas within the UGA shoreline armoring with mitigation outside the UGA • FEMA recognizes that some communities may require shoreline protection measures, especially during a flooding event. FEMA expects that any of these measures will be conducted with minimal impacts to the environment and that any affects from activities during a flood fight will be mitigated as a condition of the required floodplain development permit. For shoreline protection measures that occur outside of a flooding event a floodplain development permit would be required and thus must be compliant with the ESA. FEMA has also produced a booklet that highlights alternative techniques to hard amouring for shoreline protection. The booklet is title, Engineering with Nature and is available from the FEMA regional office. 22 Stream and Water Typing Section 2: Water Typing definition: should these criteria be applied to SFHA that does not contain listed species or habitat? • Yes, but it would not be necessary for ESA compliance, just for ease of application. Water Typing: Use of WADNR forest practices is improperly used, field visits are required to determine appropriateness of the stream buffer requirement • The WADNR science was used by NMFS when writing the BiOp. The intention of section 7 of the model ordinance is to allow the community/ developer to demonstrate that the specific conditions of the site allow for less or more restrictive requirements than called for in the BiOp based on the individual site assessment. Sec 3.4: Type N streams should not be included because their description does not place them in the FP and they are not salmon bearing • Stream typing does not have a bearing on SFHA mapping. Type N streams may be delineated on the FIRM or may not be. Section 4.1, 4.2: Duplicative requirement with CAO permitting • FEMA has traditionally and will continue to allow communities to integrate the floodplain management permitting requirements into other permits, however they need to be able to demonstrate how their permitting process ensures that they are meeting the current NFIP requirements including permitting for development other than a structure. Local laws and regulations local processes for creating regulations • Section 1.3.J: description doesn’t reflect Everett landscape • Model ordinance bypasses City planning process • FEMA cannot usurp City’s rulemaking process regarding buffers • Allow local jurisdiction to id and exclude areas in regulatory FP that is not Critical Habitat, but still meet min NFIP • The model ordinance provides technical assistance to local communities that allows a community to comply with both the ESA and the minimum NFIP standards. The local community must follow their state and local rules and regulations for adopting an ordinance if they choose to adopt the ordinance. A community that feels their 23 current buffers provide adequate protection for species may submit their best available science to FEMA for review and concurrence. Stress on Local Communities Staffing • Section 7.7 and 7.8 would be burdensome to staff resources • Concerned about reviewing habitat mitigation plans, assessing and reporting impacts with impacts on staffing • Sec 7.7.D: Who provides concurrence with the conclusions? Individual Communities? • Concerned about the level of analysis and review for proposed development and impacts on staff/consultatnts • Sec 3.4.c commentary: MO should allow jurisdictions to determine habitat areas, etc.. • Section 4.6: FP administrators may not have expertise to address ESA • Limited expertise at local level to review assessments. • Communities may need to hire resources, pass the cost of a third party review on to the applicant, or work out an agreement between communities to provide a review of the Habitat Assessments and Mitigation Plans. The nature of the NFIP program is to provide guidance and technical assistance to communities on how to administer the program. The Regional Guidance on Habitat Assessment and Mitigation Guidance is intended to help communities start being able to make those determinations. Sec 7: FEMA, not local communities, have the authority to determine what salmon habitats are functioning or not. The Tribe maintains that the majority of their treaty watersheds are entirely restorable • Direct Quote from NMFS response to Approved Salmon Recovery Plans on page 28 and about local communities making similar calls for their SMP updates: “NMFS expects state and local governments will use the best scientific information available as they amend their management programs and land use regulations to ensure salmon habitat is protected, consistent with the Recovery Plan’s strategies and actions.” Economic Impacts Section 7.7: Adversely affects home prices and availability of homes to low incomes • Low income families can be considered an “at risk” population and should consider the risks and costs associated with living in the floodplain before choosing to live in a floodplain. Communities should look to their catastrophic planning when determining where lower income housing might be situated within the community. 24 Section 7.7: Habitat Impact Assessment: Should not be done in a manner reflecting Section 7 consultation. Assessments could be too costly to allow small projects to be developed. • Communities and individuals are familiar with Section 7 through USACE and other federal activities. Mimicking Section 7 minimizes confusion. Training and a variety of technical tools will be developed by both FEMA and NMFS to assist local communities when conducting habitat assessments to help ensure efficiencies and effectiveness. • Concerns that it will cost jobs and stifle economic recovery in some important commercial and industrial areas (no specifics) • RBZ would cause severe financial impacts in all ready developed shorelines; • Economic impacts from permitting delays, including delays in habitat improvement projects • Disproportionately burdensome to smaller ports and communities • MO makes port expansion impossible by prohibition or exorbitant costs for mitigation • Concern about cost and burden of documenting • No recognition of economic impacts • Communities and ports must weigh the impacts of economic development with the inherent responsibility to develop in an environmentally responsible way. The ESA applies to everyone not just federal agencies and therefore all development should consider its impact on the environment whether it occurs in the floodplain or not. Exempt Projects List Section 7.1 and 7.2: Small project exemption should be aligned with SEPA process • Often times the SEPA bar is set too low and allows many types of development to slip through that bar, such as single family residential structures. A community may choose to modify their SEPA process to capture other types of development that may not currently require a SEPA checklist. Routine paving as a development activity • Section 7.1: Routine paving should not be a development activity • Routine major maintenance of port facilities, such as repaving needs to be permit-able without compensatory mitigation • 7.1 E states that re-paving is not a development activity; however, paving new areas not only meets the standard definition of floodplain development but is also discouraged in the Biological Opinion if the paving will increase the impervious surfaces by more than 10%. Section 7.1: Exempt Activities: Limited list • The list is intended to demonstrate that there is still limited use of the property without a floodplain development permit or a habitat 25 assessment. Activities that are beyond the performance standards set in the Biological Opinion will require a habitat assessment or a concurrence letter from the services before a floodplain development permit is issued. 7.1.g: Farm practices would be considered development after effective date of ordinance. Also farming in riparian areas is harmful. Should remove the designation for farming in riparian areas. • New farms would require floodplain development permits and habitat assessments; however farms already in existence will be allowed to continue to farm their land. Lacks exemptions for small projects with no/min impact and for routine maintenance • See Section 7.1 MO should support habitat restoration projects as non-development activities. • FEMA’s definition of development is found in 44 CFR Part 59. Restoration projects are considered development for purposes of floodplain management. See Section 7.2C. Sec 7.1: Add new subsection (H) “Routine use, maintenance and re-surfacing of existing impervious surfaces used for outdoor storage.” • Covered under 7.1 E. (may clarify language to include existing impervious surfaces) not just road maintenance). • Sec 7.1.e: include ‘installing guardrail” along with signs and traffic signals (minor safety improvements) • Sec 7.1 commentary: limits the list to that which is specified in 7.1. • The list provided in section 7.1 is not meant to be inclusive and local communities may decide if an activity is small enough that it should be exempted from the floodplain development permitting requirements. Sec 7.1, 7.2: Commentary on page 44 contradicts use of word “example” in Sec 7.1. Either recognize that items not listed may fall into the non-development category or provide an exhaustive list that is exempted. • The example is intended to demonstrate that a project may meet the non-development activities list in one manner; however another aspect of the project may still require an assessment. Sec 7.2.b: second part of sentence after comma is a relic from sec 7.2.a and should be deleted? • Agreed. Should read: , provided the expansion is not a substantial improvement. Section 7 commentary: What is a fully developed community 26 • A fully developed community is intended to be a community which is considered highly urbanized with substantially completed infrastructure and may have limited habitat. Replacement of Utilities 6. Section 5.1: Utilities and roads can’t be required for retrofitting • This section requires all proposals for utilities and roads to minimize or eliminate flood damage. It does not call for utilities and roads to be retrofitted. 32. Pg 42, Sec 6.7: Provides new additional language for utilities, including poles as not fill (CWA) • This is the same under the minimum NFIP. Ability to “dig up and replace” existing utilities. • Sec 7.1.d commentary: should read “digging up and replacing…” Replacing old wire with new could not possibly impact habitat because it works entirely within self contained environment. • Digging up utilities that have been underground and now have vegetation that is beneficial to species growing over top of it can have a detrimental effect. The replacing is not the issue but the action of digging and removing the vegetation is what needs a closer look. Hazardous Materials • Section 5.3: Broad prohibition beyond FEMA/NMFS authority (hazmat) • Section 5.3: Need to define Haz Mat, ports need to be allowed this activity • Section 5.3: Hazardous Materials: BiOp requires only in the RBZ, MO requires in the Regulatory Floodplain • Hazardous Materials: How does this affect existing farms or businesses in the floodplain? • Definitions: Hazardous materials is not well defined to address port activities • Sec 5.3, App 4e: Affect on existing development within the PA needs to be clarified • Sec 5.3: Haz materials in new developments limits functionally dependent uses like ports • Sec 5.3: Revise to allow loading and unloading of all types of cargo in the FP. • Sec 5.3: Definition of Haz mat precludes the operation of vehicles and movement of goods in the FP • Hazardous Materials prohibition is taken directly from the Biological Opinion. FEMA agrees that the Model Ordinance as written is unreasonable and will revise the language to allow for limited storage and uses within the Regulatory Floodplain. 27 Higher Regulatory Standards Critical Facilities • Section 5.4.a-b: Too prescriptive causing undue expense on taxpayers • Section 5.4.b.1: poorly defined and add considerable time and expense • Definition of Critical Facility contradicts the prohibition on hazardous materials • Sec 5.4.B: Request be permitted at 1 foot. • This is a recommendation for a higher regulatory standard in from the RPA. This element is optional and can provide points under the community ratings system but is not a required element to be implemented. LID Requirements to use LID for storm water in the floodplain • Section 5.2 doesn’t recognize the applicability or inapplicability of LID in various locations nor does it account for NPDES permit requirements. • Section 5.2.b.1: needs to recognize urban environments, change shall to should • LID is required, but the Model Ordinance needs to specific which LID techniques to use • Sec 5.2.b.1: LID should be coordinated with NPDES program • Sec 5.2.b.1: contradicts Puget Sound Partnership guidance manual on low impact development which states “a project should not be considered low impact development if it is located in the 100 yr fp or cmz. • This is a recommendation for a higher regulatory standard from the RPA. This element is optional and can provide points under the community ratings system but is not a required element to be implemented. Stormwater Storm water management requirements • Section 5.2.b.2: New DOE Stormwater manual should adequately meet that requirement • Section 5.2: Stormwater Management: Recent Department of Ecology regulations conflict with the storm water aspects of the model ordinance. • Sec 5.2.B.2: Recognize DOE Storm water Management manual as compliant with requirement • Sec 5.2.b: expand to address consistency with DOE Stormwater permits • Sec 5.2.b commentary: acknowledge that compliance with WSDOE applicable Municipal Stormwater Permit may be sufficient to comply with the MO in lieu of Sec 5.2.b.1 and 2. 28 • This is a recommendation for a higher regulatory standard from the RPA. This element is optional and can provide points under the community ratings system but is not a required element to be implemented. Section 7.4: Ordinance exceeds NPDES permit requirements – overly onerous and inflexible • Noted Dry-land Access Sec 5.1.E: Elevating roads would actually create flooding problems in many situations. Add exceptions if shown that elevations would create/worsen flooding or other environmental problems • Agree, thus this provision is optional and provided as a life safety recommendation, communities may choose to enforce this provision, however, they still must demonstrate that the project is compliant with ESA. Sec 5.1.E: Change to “where feasible” as elevation of roads is not possible • Good Suggestion, under consideration. Especially considering, this provision is optional and provided as a life safety recommendation, communities may choose to enforce this provision, and however, they still must demonstrate that the project is compliant with ESA. Water Dependent uses Section 5.2.b.1: Premature to DOE requirements causing stalling of projects • This is a recommendation for a higher regulatory standard from the RPA. This element is optional and can provide points under the community ratings system but is not a required element to be implemented. Recognition of water dependent uses • Section 5.2.a.1: doesn’t allow for water dependent use • Section 5.2.a: Doesn’t allow water dependent uses • Sec 5.2 Site Design: Does not recognize functional dependent uses, such as docks and should include related utilities • A section allowing for water dependent uses will be added. Impervious Surfaces Sec 3.4.c: does not consider or exempt areas of existing impervious surface or development where the habitat functions and values of the site are negligible • The Riparian Habitat Zone is based on the science used by the Biological Opinion. The community has the option to demonstrate that their science is more applicable to their site conditions through the checklist option, or through the individual site assessments. 29 Tribal Coordination Coordination with tribes when issuing a floodplain development permit: • Model/guidance and checklist must require coord with affected tribes and salmon recovery plans] • Model Ordinance should require a notification to tribes for floodplain development • The issuance of a floodplain development permit is a local action and should be coordinated with tribes the same as any other local actions and decisions. Requests for tribal consultation • Request Tribal Consultation • FEMA should consult with the Commission’s member tribes (other than the Lummi). Requests that FEMA initiate consultation, starting with the Tulalip and Swinomish. • General: Failed to consult and requests meaningful consultation regarding the model ordinance and guidance • Fail to consult after requested by the tribe FEMA acknowledges receipt of the Tribes request and will continue to engage them in meaningful conversation to address their concerns. Port Coordination Consultation with the Ports • Request FEMA consult with the Ports • FEMA should consult with ports and OFA prior to final MO to address dredging spoils • Request consultation with PNWA and member ports. • Request consult with Ports on navigation maintenance issues prior to finalizing ordinance • FEMA has engaged in conversations with the NWPA as well as the WPPA. FEMA considers the Ports an important user of the floodplain and as such should consider their impacts on the environment when expanding the port facilities, dredging the ports and navigation channels, and conducting other business in the floodplain. 30 Channel Migration Zones CMZ requirements discourage CMZ mapping • If state law identifies that CMZ must be mapped under SMP requirements, then CMZ will be mapped where required. FEMA does not have the legal authority to map CMZ. Sec 3.4.d: Creates a perverse disincentive to mapping CMZ’s. Should support mapping. General CMZ mapping and consideration of CMZ management is a required part of SMP updates. • This is still under consideration for revision. CMZ: doesn’t apply to Everett • Each community needs to determine whether CMZ applies to their community and demonstrate how they have addressed CMZ requirements. Levees Extent of the Channel Migration Area is unclear, esp. in areas protected by levees • The extent of the CMZ in areas protected by levees is determined by the methodology chosen by the community to delineate the CMZ. FEMA should implement RPA element 5 • An RPA must be within the regulatory authority of the action agency. Much of RPA element is beyond FEMA’s authority. FEMA has determined that is a community chooses to build a new levee; a floodplain development permit is required and therefore must be compliant with the ESA. RPA element 5 provides a set of design criteria that would be ESA compliant. RPA Element 5 should be addressed to help communities get out of the Federal triangulation • FEMA is fully aware of the situation that local communities find themselves in. FEMA is willing to help contribute to the conversation; however, the issue is between the USACE and the NMFS. Levees in the lower Green River should be set back • Setting back levees is a local decision to be made by local community officials. FEMA does encourage communities to consider ways to protect both lives and property in a way that does not cause adverse affects to the environment. The Model Ordinance does not consider environmental impacts if a levee fails 31 • Impacts from a levee failure should be part of a community’s catastrophic planning process and would not be appropriate to address in the model ordinance. Compensatory Storage Section 7.6: Comp storage exceeds state regulatory requirements from WDFW; may cause more stranding in areas not designed for fish usage • The Biological Opinion is not restricted to the state standards and provides a path forward for communities to demonstrate compliance with the Endangered Species Act. A community may have to alter their current ordinances, written procedures, or regulations in order to meet the performance standards in the Biological Opinion. • Section 7.6 D requires that newly created storage areas do not create fish stranding areas. Section 7.6: How does comp storage benefit salmon? • During a flood salmon (along with other species) often use the expanded floodplain as a refuge from the increased velocities that can occur in and adjacent to the stream. In addition fill placed in the floodplain can also increase velocities associated with a Base Flood. Compensatory storage creates areas in which the community can provide refuge during these flood events and potentially offset the effects of the fill on flood velocities. Section 7.6: Comp storage is a burden with dredge spoils for navigation purposes • There is not a requirement to dispose of dredge spoils in the floodplain. Section 7.6: Compensatory Storage: Should only be required in the SFHA. Matching of volume at elevation should read “if possible”. • Noted • Compensatory Storage: Dredge disposal would now have to be outside of the SFHA, could prevent in water disposal of the dredge materials. • High water tables prevent compensatory storage in floodplains. • H&H engineer should be allowed to determine if comp. storage is required outside the PA • Compensatory Storage requirement will reduce the areas in which economic development could occur. • Noted Compensatory storage requirements in areas that it may not be applicable • Section 7.6: Compensatory Storage: Urbanized areas have little capacity to provide comp. storage • Sec 7.6: Reads that Comp storage is required for all new development. Request a scientific (see HH Guidance) or conceptual level (see SMP for Urban shorelines) exception be added. • Sec 7.6 impossible to accomplish for properties completely in the FP. Allow for off site regional compensatory storage program 32 • A habitat assessment could be provided that demonstrates that the loss of refuge and flood storage will not cause an adverse affect. Sec 7.6: the approach of comp flood storage only where development displaces flood storage volumes should be duplicated throughout the MO • Not necessary Sec 7.6: not consistent: one permits one foot rise (no floodway) while the other mandates zero rise. Comp storage renders every FP a zero rise FP. • In communities in which there is a detailed study, however no floodway has been established the minimum NFIP regulations (44CFR 60.3 (c) (10)) require the local community to demonstrate the cumulative effect of proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community. • Compensatory storage is required whenever storage is lost in the floodplain. A community enforcing 60.3 (c)(10) should not have a problem meeting the requirement based on fill if they are enforcing the compensatory storage requirements, however, other development still may cause a rise and therefore must be evaluated for cumulative effects on the BFE. Sec 7.6: Compensatory storage is problematic in some areas, like tide flats. • Tide flats may not be the appropriate place for development. A habitat assessment could be provided that demonstrates that the loss of refuge and flood storage will not cause an adverse affect. Sec 7.6: reduces developable areas for Port activities/economic expansion • Water depended uses will be addressed. Ports still have a responsibility to comply with the ESA even while meeting their mission of economic expansion. Sec 7.6: H&H eval should be allowed to determine need for compensation. • A habitat assessment could be provided that demonstrates that the loss of refuge and flood storage will not cause an adverse affect. Appendix E. The Biological Opinion • Appendix E is not mentioned in the Model Ordinance. • Appendix E suggests specific one size fits all requirements, Lacey may have buffers that are greater or less than those proposed • App 4, sec 1 pg E8, last para: Clarify veg removal to avoid jeopardizing overhead utilities. Drop public. 33 • Appendix E is the Reasonable and Prudent Alternative directly from the Biological Opinion except where amended by an Errata sheet. Checklist Checklist: No requirement to ensure that only activities with no adverse affects be authorized in the Protected Area • Activity 5 (c) of the checklist prohibits any development in the floodway, CMZ, or the RHZ unless a no adverse affect is demonstrated. Checklist: FEMA’s approach does not provide sufficient oversight to ensure no adverse affects in Protected area • Local communities are responsible for their permitting actions. FEMA will review the annual reports and will conduct CAVs in the affected communities to ensure that the communities are not permitting projects that allow an adverse affect. Checklist: no requirement that ensures only activities with no adverse affects be authorized. • Activity 5 (c) of the checklist prohibits any development in the floodway, CMZ, or the RHZ unless a no adverse affect is demonstrated. Checklist: Who is responsible for tracking and assessing the effects of the FP development • The community is responsible for tracking and reporting their permitting activities to FEMA. FEMA is responsible to reviewing the annual reports in order to ensure compliance with the RPA. Checklist: For projects not resulting in an HMP, who is responsible for conducting the assessment? • Communities may need to hire resources, pass the cost of a third party review on to the applicant, or work out an agreement between communities to provide a review of the Habitat Assessments and Mitigation Plans. Checklist 5.a: references Sec 7.2.B which is not does not reflect RPA 3.A.4 as referenced. • Disagree. They both reference the expansion of a structure no more than 10% in the Protected Area. Doesn’t allow any flexibility from the model ordinance • Should be clarified with new version of the checklist. Should allow a city to show that it can provide equivalent level of protection • Should be clarified in the new version of the checklist 34 FEMA does not describe the process to determine if jurisdictions actually comply. • Additional guidance will be provided in a stand-alone version of the checklist. No consideration of how the code is applied, particularly with the issue of exemptions and exceptions Most useful tools for the community • • Checklist Sec 5.e: we interpret this to be an extra credit under CRS and not a minimum requirement • Checklist Sec 5.g: if it is not a requirement, then should not be part of the checklist • Checklist Sec 5.h: New road crossings is not a requirement as evident by the Note 2. Why single out road crossings from all development? • Modified language to reflect a requirement to obtain a concurrence letter or a habitat assessment that demonstrates no adverse affect will be included in the next version of the model ordinance. Regional Guidance Documents Regional Guidance on Hydrologic and Hydraulic Studies How does H&H guidance relate to the Model Ordinance? • H&H guidance provides information for communities that wish to develop the mapping products necessary for implementing the model ordinance (i.e. CMZs or when the use of 2 dimensional modeling might be appropriate for floodplain mapping and habitat mapping.) This is only recommended guidance and communities may follow their own methodologies if they choose. HH Guidance: Language should be changed to state communities are obligated to comply with the ESA and BiOp and that this guidance will help them. • Noted Pg4-5 HH Guidance: Flood studies can and should address precipitation trends and the future risk of flooding. See references for sufficient information to include climate change driven trends for precipitation and sea levels in flood studies. • FEMA is addressing this in its Effects of Climate Change on the NFIP study that is due to be released in the late summer of 2010. Pg6 HH Guidance: The two situations for exceptions have no basis in the BiOp 35 • These 2 exceptions are based on the determination that analyzing future conditions can be expensive and time consuming and with little anticipated change to the conditions there is no need to conduct the study. H&H guide pg 14: Limiting CMZ before this date (sep 22, 2008) would be counterproductive to using all existing info in protecting riparian habitat. General CMZ mapping to be conducted as part of the state funded SMP updates. Suggest using an approach that uses all “available” CMZ mapping, rather than what has been adopted. • Will be addressed in the next version of the guidance. Regional Guidance on Habitat Assessments and Mitigation • There is no clarity regarding sequencing: Mitigation is not clear on sequencing (avoid, minimize, rectify, compensate). See MO: 5.2.b.2; HA Section 5 • Why should a property owner have to avoid if no habitat or where he can full mitigate any impacts? • Habitat Assessment Guidance is too general. • Habitat Mitigation Guidance is too general and should be a more in-depth discussion relating quantifiable measures to impact. • Format allows for an easy assessment • Mit Guidance: None of the listed mitigation strategies result in no adverse affects in the Protected Area. • Mit Guidance: Should be crafted to emphasize compliance with RPA and thereby allow no adverse affects in the Protected Area • Mit Guidance: doesn’t require avoidance nor provide framework for making decisions about what areas to avoid • Mit Guidance: Must be some standard for types of mitigation that works. • Mit Guidance: Must hold local govts accountable for unsuccessful mitigation • No process for following mitigation actions to evaluate the effectiveness of mitigation • Pg 18; 22 (section 6.1) Habitat Guidance: allows adverse impacts in the protected area “mitigation within Protected Areas.” Should be changed to emphasize no adverse affects. Mitigation and no net loss of habitat does not meet the no adverse affect standard. • FEMA is working to make the documents consistent and meet the no adverse effect standard. Terminology and Definitions 36 Many respondents asked for clarification of terminology or definitions: “liberally construed in favor,” “disclaimer of liability” • This is standard language from FEMA’s model ordinances, community may delete if they feel it is not necessary Sec 2 Definitions: need definition of grading and filling • Grading and filling are commonly used in other development regulations and have a common generally understood definition for planning and development purposes. Section 1.8: Eliminate second sentence ref to deed restriction, easements or covenants • Language is intended to provide community with the ability to use more restrictive language if the M.O. or a deed restriction, etc… conflicts with the ordinance. Critical facility should be termed “essential public facility” • Noted. Community can change if they choose Need to define non-conformity • This is unrelated to the NFIP or the ESA. See definition of non-conforming in other planning uses. Structure should include roads, flood control berms, etc. • M.O. uses the standard NFIP definition Base flood -Remove 100 year flood phrase • Clarifies what is being defined into common phrase that lay people understand. Development: storage of equipment or materials and alteration of natural site characteristics need to be further defined – too vague • The need for this will be considered for future guidance documents Water Typing: Modify to reference state code as the typing system is not allowed for referencing under State law. • Noted for further consideration Sec 2 definition: Should define native vegetation to include a minimum 20% areal coverage of a given area as a standard for plant density for mapping purposes (avoid id individual plants) • Noted Section 4.2: Define lakes, water bodies, waterways, and drainage facilities 37 • When a term is used and not specifically defined it is to be construed to have the definition in the common vernacular or as defined in a dictionary. • Sec 4.3: Initiation of grading activities would not qualify as start of construction. Difficult to meet. Should amend to include initial grading and excavation for a project. • Sec 4.3: Revise so that grading and the installation of streets and utilities are sufficient to trigger the Start of Construction. • Definitions Start of Construction: revise to clarify that grading and the installation of streets and utilities are sufficient to trigger “start of construction” • The definition of start of construction under 44CFR59.1 specifically excludes these items from the definition. Section 7.6 refers to “new development”, which is not defined. Should be revised to explain its explanation to specific types of new development. • New development: Anything that was not in existence prior to the project being permitted that meets the definition of development. Define Construction season • The construction season is meant to be within the same year as the project is commenced in order to ensure that the fill is not in place without compensatory storage during a typical flood season (October 1-May 1). Pg 18, Sec 2 Definitions: Add Utility definition (example provided) • Noted for further consideration Sec 1.3.f: The term “sound use” should be clarified with respect to the meaning of preferred use under the SMA • Will consider for commentary section Sec 2: Definition of “threat to water quality” should be provided to distinguish prohibited activities from every day operations • Noted Definitions cont… RBZ vs. RHZ BiOp uses Riparian Buffer Zone, Model Ordinance uses Riparian Habitat Zone • FEMA’s intention is to get away from the word “Buffer” as it implies that the area is a “no development” zone. Some limited development can occur in the area if it can be demonstrated that the project does not cause an adverse affect. FEMA reworded the BiOp language to bring 38 attention to the area, but lessen the confusion regarding the requirement that the RBZ be a “hard buffer.” Regulatory Floodplain Sec 1.4, 3.4: Definition of regulatory floodplain is too expansive, exceeds intent of the BiOp without explanation of authority • Section 2, Definition of Regulatory Floodplain: explanation that some cases the SFHA will not exceed the RBZ • The term “Regulatory Floodplain” is intended to simplify the M.O. to demonstrate where performance standards from the BiOp would apply to areas both within and outside of the SFHA. The M.O would provide a degree of compliance with ESA for communities that choose to adopt it. The authority lies with the local government to determine best how they intend to comply with the ESA outside the SFHA and the M.O provides a way, but not the only way. Development Model ordinance fails to distinguish between redevelopment and new development • Development should include docks, piers, floats, boat launches • Development: impossible to regulate port and industrial uses for storage of equipment and materials • Pg 13, Sec 2 Definitions-Development: Change to distinguish between temporary and permanent site impacts (see example) • Regulates non insurable development activities (dredging, filling, etc.) • Sec 2 Definitions Development: could be construed to include repaving of existing impervious surfaces and storage of any equipment or materials. Definition should clarify that repaving of existing surfaces, beyond simply the repaving of roads will not require fp permit, such as Port storage yards. • Sec 2 Definition: development will require FP permit and habitat assessment for small projects, which will be prohibitively expansive • Sec 2 Definitions: PA and regulatory FP should be amended to exempt development activities that occur on existing impervious surfaces within the regulatory fp, similar to CAO (Vancouver). • The standard definition (44CFR 59.1) of Development is used in the model ordinance with the addition of the phrase: “ subdivision of land, removal of more than 5% of native vegetation on the property, or alteration of natural site characteristics.” • The standard definition of development does not specifically include docks, piers, floats, and boat launches, however, these are all examples of development that should be permitted. Development is not limited to insurable structures and therefore filling and grading are required to obtain 39 floodplain development permits. Redevelopment is also considered development in the floodplain and should also be permitted. • Storage of equipment and materials may require a programmatic permit be issued that allows an activity to occur to a certain limit and then a permit should be revisited on a periodic basis in order to ensure that the community is tracking the activities that occur in their floodplain. • Section 7 of the M.O. provides for a programmatic variance to permits for small projects to be exempted from a permit or the need for a habitat assessment. Protected Area Protected area needs to be clarified • Section 3.4.A: Protected Area: need to quantify how No Adverse Impact • Section 3.4.C: Protected Area-Commentary: Clarify what limited development is allowed. • Section 3.4 commentary: need elaboration on demonstrating smaller areas • The Protected Area is the greater of the Floodway, Channel Migration Zone, or the Riparian Habitat Zone based on the Washington State Department of Natural Resources stream typing system as identified in the Biological Opinion. The Protected Area is meant to be a no disturbance zone in which limited activities can occur if an applicant can demonstrate that there is No Adverse Affect to species. Section 7 of the Model Ordinance provides clarification on what limited development may occur in the Protected Area. The model ordinance and habitat assessment guide provide a methodology to determine impacts. More specificity would not accommodate a programmatic approach, given the infinite site specific situations. CRS Credit for Habitat Protection Guidebook No Comments Received 40 NATIONAL FLOOD INSURANCE PROGRAM and FINAL DRAFT FEMA Manual 7810.4 Table of Contents Page Definition of Terms iii Chapter 1 -General Information 1-1 1-1 Purpose 1-1 1-2 Applicability and Scope 1-1 1-3 Authorities 1-1 1-4 References 1-1 1-5 Background 1-1 1-6 Objectives 1-2 1-7 Responsibilities 1-4 1-8 Reporting Requirements 1-6 Chapter 2 -Community Selection Process 2-1 2-1 General 2-1 2-2 Risk-Based Criteria for Selecting CAVs and CACs 2-2 2-3 Selecting Communities for a CAV 2-3 2-4 Other Situations that Require a CAV 2-7 2-5 Selecting Communities for a CAC 2-7 Chapter 3 -Community Assistance Contact 3-1 3-1 General 3-1 3-2 The Difference between Technical Assistance and a CAC 3-1 3-3 Preparation 3-2 3-4 Community Contact 3-3 3-5 Documentation 3-8 3-6 Follow-up 3-11 Chapter 4 -Community Assistance Visit: Preparation 4-1 4-1 General 4-1 4-2 Review Pertinent Community Information 4-1 4-3 Compile a List of Issues and Sites 4-5 4-4 Contact the Community to Schedule a Visit 4-6 4-5 List of Materials and Equipment for a CAV 4-9 Chapter 5 -Community Assistance Visit 5-1 5-1 General 5-1 5-2 The Floodplain Tour: Purpose and Strategy 5-1 5-3 The Floodplain Tour 5-3 5-4 Documentation of Potential Floodplain Development and Mapping Issues 5-7 5-5 Meeting with Local Officials 5-8 5-6 An Examination of the Floodplain Development Permit and Variance Files 5-17 5-7 Summary Meeting with Local Officials 5-20 5-8 Specialty CAVs 5-21 i FINAL DRAFT FEMA Manual 7810.4 Chapter 6 -Community Assistance Visit: Documentation 6-1 6-1 General 6-1 6-2 Community Assistance Visit Findings 6-1 6-3 Letter to the Community CEO 6-5 Chapter 7 -Community Assistance Visit: Follow-Up 7-1 7-1 General 7-1 7-2 Provision of Community Assistance 7-1 7-3 Monitoring and Oversight 7-3 7-4 Follow-up Documentation/Chronology 7-8 7-5 The NFIP Compliance Manual 7-10 Appendices Appendix A -Community Assistance Contact Checklist of Issues for Discussion A-1 Appendix B -Sample Letter: Confirming CAV Meeting B-1 Appendix C -Floodplain Tour Checklist C-1 Appendix D -NFIP Floodplain Development Review Worksheet D-1 Appendix E -Community Assistance Visit: Checklist for Meeting with Local Officials and Issues Discussion E-1 Appendix F -The Community Rating System F-1 ii FINAL DRAFT FEMA Manual 7810.4 Definition of Terms Definitions used in this manual that relate to the National Flood Insurance Program (NFIP) can be found in Code of Regulations (CFR) 44 Part 59. In addition, the following definitions apply: a. Community Compliance Program. The complete system developed to identify and resolve program deficiencies and violations, with the objective of obtaining community compliance with NFIP criteria. The emphasis of the system is on correcting program deficiencies and remedying violations through community assistance and consultation prior to the initiation of an enforcement action. b. Enforcement Action. A measure initiated by FEMA to obtain community compliance with NFIP floodplain management criteria by ensuring that communities correct program deficiencies, remedy past violations, and enforce their ordinances for future development. The action commences when a FEMA Regional Director notifies the community that it will be placed on probation following the conclusion of a 90-day notice period. The action can continue through suspension and/or until the community’s full program status is restored. c. Flood Loss Reduction. A combination of preventive and corrective measures taken by individuals or communities to mitigate the adverse consequences of flooding. d. Floodplain Management Regulations. Zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a floodplain ordinance, grading ordinance, or erosion control ordinance), and other applications of police power. The term describes such local or State regulations, in any combination thereof, that provide standards for the purpose of flood damage prevention and reduction. e. International Building Code (IBC). A model code that provides minimum requirements to safeguard the public health, safety and general welfare of the occupants of new and existing buildings and structures. Depending on the State, the IBC can or must be adopted by a community. It contains flood damage–resistant provisions that are consistent with the minimum design and construction requirements of the NFIP. f. International Residential Code (IRC). A model code that provides complete, comprehensive regulations for the construction of single family houses, two-family houses and buildings consisting of three or more townhouse units. Depending on the State, the IRC can or must be adopted by a community. It contains flood damage–resistant provisions that are consistent with the minimum design and construction requirements of the NFIP. g. Probation. Recommended by the Regional Administrator and occurring as a result of non­compliance with NFIP floodplain management criteria [44CFR §59.24(b)]. A community is placed on probation for one year (may be extended) during which time a $50.00 surcharge is applied to all NFIP policies, including Preferred Risk Policies, issued on or after the probation surcharge effective date. If a community does not take remedial or corrective measures while on probation, it can be suspended. h. Program Deficiency. A defect in a community’s floodplain management regulations or administrative procedures that impairs effective implementation of floodplain management regulations or the standards in 44 CFR §60.3, 60.4, or 60.6. iii FINAL DRAFT FEMA Manual 7810.4 i. Reinstatement. After a period of suspension from the NFIP for failure to adopt or enforce floodplain management regulations or for repealing or amending previously compliant floodplain management regulations, a community may be reinstated into the Program. At a minimum, conditions for reinstatement may include that the community report to the FEMA Regional Office all activities on the floodplain and each variance that it grants, and that a review be conducted after a specified period of time to ensure that the community is enforcing its floodplain management regulations. Flood insurance is available in communities that have been reinstated. A community may be reinstated on probationary status, however. In communities placed on probation an additional charge of $50.00 will be added to the premium for each new or renewed policy for a period of no less than one year. j. Substantive. A substantive program deficiency or violation is one that has resulted or could result in increased potential flood damages or stages during events up to or equal to the base flood in the community. k. Suspension. A community shall be subject to suspension from the NFIP for failure to adopt compliant floodplain management measures [44 CFR §59.24(a)] or if it repeals or amends previously compliant floodplain management measures [44 CFR §59.24(d)]. A community can also be suspended for failure to enforce its floodplain management regulations [44 CFR §59.24(c)]. New flood insurance coverage cannot be purchased and policies cannot be renewed in a suspended community. l. Violation. The failure of a structure or other development to be fully compliant with the community’s floodplain management regulations. A structure or other development without the elevation certificate, or other certifications, required in 44 CFR §60.3(b)(5), (c)(4), (c)(10), (d)(e), (e)(2), (e)(4), or (e)(5) is presumed to be in violation until such time as that documentation is provided. iv FINAL DRAFT FEMA Manual 7810.4 Chapter 1 -General Information 1-1 Purpose This manual establishes the Department of Homeland Security, Federal Emergency Management Agency (FEMA) procedures for conducting Community Assistance Contacts (CACs) and Community Assistance Visits (CAVs) with communities participating in the National Flood Insurance Program (NFIP). This is the second edition of this manual, which was originally published on August 30, 1989. 1-2 Applicability and Scope This manual is applicable to all FEMA staff in Headquarters (HQ), FEMA Regional Offices, Joint Field Offices, and State agencies that may be conducting CACs and CAVs under the NFIP’s Community Assistance Program (CAP). 1-3 Authorities a. The National Flood Insurance Act of 1968, as amended. b. The Flood Disaster Protection Act of 1973, as amended. c. The National Flood Insurance Reform Act of 1994. d. The Flood Insurance Reform Act of 2004. 1-4 References Title 44, Code of Federal Regulations (CFR), Parts 59, General Provisions; 60, Criteria for Land Management and Use; 65, Identification and Mapping Special Hazard Areas; 70, Procedures for Map Correction; 72, Procedures and Fees for Obtaining Conditional Approval of Map Changes; 78, Flood Mitigation Assistance; 79, Flood Mitigation Grants; and 80, Acquisition of Flood Damaged Structures. 1-5 Background The major objective of the CAP is to ensure that communities participating in the NFIP are achieving the flood loss reduction objectives of the program. To achieve this objective, the CAP is designed to provide needed floodplain management assistance services to NFIP communities. By providing these services, the CAP identifies, prevents, and resolves floodplain management issues before they develop into problems that require enforcement actions. The Community Assistance Program–State Support Services Element (CAP-SSSE), through its State partnering agreement, is designed to support and enhance State floodplain management programs by making State personnel available to assist and supplement FEMA Regional Office staff. The CAP is a companion program to the NFIP Community Compliance Program (CCP). If problems are encountered and cannot be resolved during the implementation of the CAP, the CCP provides an orderly sequence of enforcement options of varying severity for follow-up action by FEMA HQ and the FEMA Regional Offices. 1-1 FINAL DRAFT FEMA Manual 7810.4 1-6 Objectives a. Objectives of this Manual 1. To serve as a guide and tool for selecting and conducting CACs and CAVs, and 2. To serve as a training document for staff not familiar with the procedures for conducting CACs and CAVs. This manual describes the step-by-step process for conducting CACs and CAVs. The activities and issues listed under the CAC and CAV processes, while comprehensive, may not be inclusive of all that may be required to identify, prevent, and resolve floodplain management issues. Likewise, certain activities and issues listed under the CAC and CAV processes may not be applicable to every community or every situation. For example, if a community does not have mapped areas protected by a levee system recognized by FEMA as providing protection from the base flood, it is not necessary to discuss maintenance activities with the community under the provision 44 CFR §65.10. FEMA Regional and State staffs are expected to exercise discretion in evaluating community programs and the application of this guidance. Although NFIP regulations are referenced throughout this manual, it is not the intention of this document to supersede or replace the NFIP regulations. b. Purpose of the CAC CACs and CAVs are two key methods FEMA uses to identify 1. The CAC provides a means for establishing community floodplain or re-establishing contact with an NFIP management program community for the purpose of determining deficiencies and violations and any existing problems or issues and to offer to provide technical assistance assistance if necessary. The CAC also to resolve these issues. provides the opportunity to enhance the working relationship between the State or FEMA with NFIP communities and creates a greater awareness of the NFIP and its requirements. 2. A CAC can be conducted by means of a telephone call to the community or a brief visit. Using either method of contact, the CAC is intended to be less comprehensive and less time-consuming than a CAV. The CAC should not be conducted in communities where more serious floodplain management problems or issues are known or suspected, especially in communities where growth is occurring in the floodplain, or in communities with a high potential for damage to existing development. c. Purpose of the CAV 1. The CAV is a scheduled visit to an NFIP community for the purpose of conducting a comprehensive assessment of the community's floodplain management program and of its knowledge and understanding of the floodplain management requirements of the NFIP. The purpose of the CAV is also to 1-2 FINAL DRAFT FEMA Manual 7810.4 provide assistance to the community in remedying identified program deficiencies and violations. 2. The emphasis of the CAV is on resolving issues or problems by providing floodplain management assistance; however, the subsequent findings and documentation of a CAV form the basis for taking an enforcement action if deficiencies are not resolved and violations are not remedied to the maximum extent possible given practical and legal constraints. 3. The CAV offers an opportunity to establish or reestablish working relationships between the State or FEMA and NFIP communities to create a greater awareness of the NFIP and its requirements, and to provide ongoing technical assistance. 4. The CAV also provides an opportunity to assess the effectiveness of the programmatic and regulatory aspects of the NFIP nationally by gathering information and making observations on local floodplain management programs; entering data and comparing them to the information in FEMA’s Community Information System (CIS); and identifying any issues or problems related to programmatic or regulatory aspects of the NFIP and the effectiveness of the NFIP’s flood loss reduction efforts. 5. Because of the comprehensive nature of the CAV, priority visits should be scheduled in communities experiencing rapid growth and development in the Special Flood Hazard Area (SFHA), and where floodplain management problems are known or suspected. d. Timeframe 1. Ideally, each fiscal year, some type of contact should be made with all communities participating in the NFIP, whereby community floodplain management programs are assessed and floodplain management assistance services are provided. However, this task is virtually impossible given that more than 21,000 communities participate in the NFIP and that FEMA’s resources are limited. 2. To gain maximum benefit from available resources and to ensure the NFIP remains responsive to the needs of all participating communities, FEMA has established a .risk based. priority approach for selecting communities for CAVs, to ensure that FEMA’s limited resources are applied in the communities most in need of this level of attention. This approach is supplemented by training courses, technical assistance, floodplain management, and other flood loss reduction–related tools that are designed to reach lower growth rate communities that may not receive a CAV. 3. Community assessment and floodplain management assistance may take a variety of forms. In addition to CACs and CAVs, these activities may include consultation and coordination of new and revised Flood Insurance Studies (FISs), which require Scoping Meetings and Final Meetings for FISs; assistance to communities with updating floodplain management regulations; technical 1-3 FINAL DRAFT FEMA Manual 7810.4 assistance to communities that have experienced a recent disaster; and other forms of direct, one-on-one contact with communities to provide assistance. 4. By using a combination of CACs and CAVs in conjunction with all other community assessment and assistance activities, the process is designed to ensure that several thousand communities are contacted in one form or another each year so that, over time, no NFIP community is overlooked. 5. The actual number of communities contacted or visited through the formal CAC and CAV process in a given year may vary due to the following factors: (a) The availability of staff resources within FEMA and State agencies; and (b) Recognition that where high rates of growth and development are occurring in the SFHA and/or that where program deficiencies and violations are identified, communities may require more frequent CAVs or other forms of follow-up assistance, such as field-deployed EMI classes, Elevation Certificate workshops for surveyors, etc. This process recognizes the need for and importance of resolving and preventing, to the maximum extent possible, floodplain management problems and issues related to development in SFHAs that would be at risk to future flood damages. CAV Triggers – High rates of growth and development in the 1-7 Responsibilities SFHA, and/or identified program deficiencies and a. The FEMA Administrator is responsible violations, may signify the need for the establishment, development, and for more frequent CAVs. execution of policies and programs under the National Flood Insurance Act of 1968, as amended. b. The Federal Insurance Administrator (FIA), Federal Insurance and Mitigation Administration (FIMA) is responsible for the following: 1. Administering the development of criteria and standards for the flood insurance, risk assessment, and loss reduction activities of the NFIP; 2. Providing guidance to FEMA Regional Offices to assist in their implementation and completion of NFIP-related duties; and 3. Acting, as necessary, to suspend or reinstate community eligibility to participate in the NFIP in accordance with the provisions of 44 CFR §59.24. c. The Floodplain Management Unit, FIMA is responsible for the following: 1. Administering the CAP, including the CAP-SSSE partnering agreement, and the CCP; 2. Developing floodplain management policy and regulations to improve implementation of the NFIP; 1-4 FINAL DRAFT FEMA Manual 7810.4 3. Developing floodplain management guidance and training materials to improve implementation at the community level; 4. Implementing community NFIP eligibility and enrollment; and 5. Providing overall management and coordination to the States, to FEMA Regional Offices, and to communities on Community Rating System (CRS), Section 1316 (denial of flood insurance coverage), and on the CIS. d. The FEMA Regional Administrators are responsible for the following: 1. Providing assistance to NFIP communities in their efforts to administer and enforce local floodplain management regulations that meet or exceed the minimum criteria of the NFIP; 2. Monitoring the floodplain management activities of NFIP communities to ensure compliance with the requirements of the NFIP; 3. Recommending imposition or removal of NFIP CRS retrogrades, as necessary, based upon community response to identified local floodplain management program deficiencies and violations; 4. Recommending the imposition or removal of NFIP community probation, as necessary, based upon community response to identified local floodplain management program deficiencies and violations; and 5. Providing subsequent recommendations to the FIA to suspend or reinstate community eligibility to participate in the NFIP. e. The NFIP State Coordinator is responsible for the following: States have a significant role in the NFIP. Many have adopted floodplain statutes and regulations and have established and funded their own State floodplain management programs. Each Governor has selected a State coordinating agency for the NFIP. While the role of this agency varies among States, common activities include the following; 1. Ensuring that communities have the legal authorities necessary to adopt and enforce floodplain management regulations; 2. Establishing minimum State regulatory requirements consistent with the NFIP; 3. Providing technical and specialized assistance to local governments and the general public; 4. Coordinating the activities of the various State agencies that affect the NFIP, including regulating State-owned property in SFHAs; and 1-5 FINAL DRAFT FEMA Manual 7810.4 5. Encouraging and assisting communities to qualify for NFIP participation and CRS participation, and to maintain eligibility through ongoing community monitoring and enforcement. In addition to having an NFIP State Coordinator, most States participate in the CAP-SSSE, which funds States to provide assistance and monitoring to NFIP communities through CACs, CAVs, and ordinance reviews in support of the FEMA Regional Offices. 1-8 Reporting Requirements a. The CIS is the management system for NFIP floodplain management activities. All CAC and CAV findings must be entered into the system within 30 days of the activity, with further updates entered as needed. Documentation, correspondence, and other pertinent information of community, State, and Federal actions must also be placed into the CIS. b. These reports and documentation serve three purposes: 1. Provide a summary of the CAC or CAV by indicating the types of problems or assistance needed in the NFIP community; 2. Serve as an administrative tool for advancing the CAC or CAV through the assessment and assistance process by ensuring that necessary follow-up actions are taken by the NFIP community in a timely manner; 3. Use information from these reports to evaluate how well NFIP communities are achieving the flood loss reduction objectives of the program; and Provide information that will not only be useful for determining the overall effectiveness of the NFIP, but will also assist FEMA's efforts in determining if any programmatic or regulatory adjustments to the NFIP are needed. 1-6 FINAL DRAFT FEMA Manual 7810.4 Chapter 2 -Community Selection Process 2-1 General a. Selection of CACs and CAVs. The selection of CACs and CAVs is undertaken through the CAV-CAC prioritization process described in this chapter. It is a major challenge to balance the staff resources available at the FEMA Regional Office and State level with the number of communities that require a CAV or a CAC in a given year. This chapter describes a .risk-based. approach for community selection for CACs and CAVs. The .risk based. approach is intended to help ensure that limited staff resources are applied in a cost-effective manner to the communities most in need of a CAV or CAC in each fiscal year. The process for selecting CAVs and CACs for each Federal fiscal year should occur during the last quarter of the previous Federal fiscal year. At a minimum, FEMA and the State should agree on the number of CAVs and CACs to be undertaken before the fiscal year begins. That initial agreement can be modified later based on actual funding received and other considerations. b. Analysis of the available resources and the types of floodplain management assistance needs. Annually, FEMA analyzes the available resources and the types of floodplain management assistance needs of communities participating in the NFIP. The resource analysis includes not only FEMA resources, but other resources outside FEMA. FEMA enters into agreements with States under the CAP-SSSE to provide floodplain management assistance to NFIP communities. The CAV and CAC are two methods to assess NFIP communities’ implementation of the floodplain management program. 1. Risk-Based Selection Report. The CIS produces an annual report of the highest priority CAVs to be conducted using the risk-based criteria discussed in section 2-3, and summarized in Figure 2-1. The FEMA Regional Offices, in coordination with State CAP-SSSE representatives, will use this report to identify a list of communities for CAVs for each State prior to the fiscal year in which the CAVs are conducted. The guidelines for selecting which communities will receive a CAV are provided in sections 2-2 through 2-5. 2. Determination of Resources. Once a preliminary list of CAVs has been identified for the upcoming fiscal year, the FEMA Regional Offices, in coordination with their State CAP-SSSE representatives, will determine which resource (the FEMA Regional Office or State) will conduct specific contacts or visits, as well as other needed floodplain management services that support the goals and objectives of the NFIP. Prior to or during the negotiation process with States for development of statements of work under the CAP-SSSE, FEMA obtains State input in order to establish a list of CACs and CAVs at least three months prior to the beginning of each fiscal year. Note: When a CAV or CAC is required for a participating Federally Recognized Tribal Government, the CAV or CAC must be done by FEMA Regional Staff, in recognition of the established sovereign government to government relationship. (See section 5-9). 2-1 FINAL DRAFT FEMA Manual 7810.4 2-2 Risk-Based Criteria for Selecting CAVs and CACs A risk-based set of criteria will be used to identify communities that need a CAV and communities that need a CAC. The term .risk­ based. is used to identify those areas where Risk-based approach — development has occurred or is likely to occur in When development is permitted the SFHA. Future Federal disaster payments and in high-risk areas, property flood insurance claims could be higher in rapidly owners and communities are growing communities if floodplain management placed at a greater risk of regulations are not effectively enforced. These devastating flood losses. are the communities where a CAV can have the greatest impact on current and future development, including both new development and substantial improvements (e.g., additions, rehabilitations, repairs, remodeling). a. Risk-Based Community Selection Process. The risk-based community selection process will result in an annual ranking of all communities in each State. The ranking is based on a standard set of criteria to determine what level of formal NFIP attention is appropriate for each community. The list of communities can be divided into two groups. Those with the highest rate of flood risk relative to new and existing development, tempered by suspected or potential floodplain management problems, will be identified as .Tier 1.. The Tier 1 communities should have a CAV done in order of their risk ranking at least once every five years. The length of the Tier 1 list will depend on the number of CAVs the State and FEMA can reasonably accomplish over the following five years, including the need some communities may have to be visited more often. Those communities that fall below the Tier 1 list will be labeled as .Tier 2. and should be scheduled, based on their risk ranking, for a CAC, training, or other contact without regard to timeframe, subject to State and FEMA staff availability. However, FEMA Regional Offices and States do have the flexibility, depending on resources and specialized knowledge of local conditions, to perform CAVs in appropriate Tier 2 communities. b. Communities in the Five-Year Cycle. It is anticipated that each year the highest priority (Tier 1) communities remaining in the five-year cycle identified by this process will have a CAV scheduled, and the next highest group of communities (Tier 2) will receive a CAC or other contact. It is also anticipated that new information obtained each year Tier 2 — These communities will result in some priority changes within and should not be scheduled for a between the two Tier lists. The number of CAVs CAV unless the level of permit and CACs done each year will be subject to the activity, compliance problem staff resources available from the FEMA Regional indicators, or CAC results Office and the State CAP-SSSE program. Given temporarily qualifies them as a the significant amount of staff resources required to Tier 1 community. do a CAV, a reasonable allocation of available staff hours among CAVs, CACs, and other NFIP duties is essential. Of the amount of time allocated to CAVs and CACs, the majority should be spent on CAVs in Tier 1 communities. Some States with a relatively small number of communities are able to do a CAV on every community (Tier 1 and Tier 2) in five years. Those States should evaluate the comparative risk ranking of each community to determine whether some of their 2-2 FINAL DRAFT FEMA Manual 7810.4 higher risk communities should have a CAV more frequently than every five years, and if some of their lowest ranked communities need only a CAC. The key is to focus limited NFIP staff time conducting risk-based CAVs on those communities where disaster and NFIP claims costs will be increased should a community fail to implement its floodplain management program correctly. c. Risk-Based Selection Report. The CIS provides a Risk-Based Selection Report by State and community to assist in creating and updating the annual CAV and CAC selection process. This CIS report will depend on regular updates of insurance, floodplain management, mapping, growth rates, and other data from multiple databases to ensure the annual Risk-Based Selection Report accurately reflects the latest information. 2-3 Selecting Communities for a CAV The FEMA Regional Office, in coordination with the State CAP-SSSE representative, will review the CIS Risk-Based Selection Report to determine an initial list of communities to receive a CAV for the upcoming fiscal year. While the list is developed using risk-based criteria in the best interests of the NFIP, FEMA Regional Offices and States may, in partnership, substitute a few alternate high-priority communities based on any new information or localized knowledge that warrants the adjustment. For example, a surge of development around an existing military base that benefited from the closure of another base would be cause for altering risk-based rankings. A request for a CAV to accommodate a new CRS applicant is another example of an appropriate substitution. The overall criteria for selecting or modifying an initial list of CAVs are summarized in Figure 2-1. The Tier 1 and Tier 2 criteria use selected weighted factors from these criteria. Substitutions made by FEMA Regional Offices or States to the original risk-based CAV (Tier 1) priority list shall be noted in the CIS to ensure national priorities are followed, and any alternate criteria can be incorporated into future listings. a. Development Risk. A CAV should be conducted in communities that are experiencing significant development activity in SFHAs. This includes both new construction in the SFHA and major rehabilitation, upgrades, renovation, or In determining which repairs to existing buildings as shown communities should receive the by the indicators in paragraph 2-3(a), level of attention afforded by a .Indicators of High Risk to Current and CAV, a higher priority should be Future Development.. In addition, given to those communities that selection must also consider high have increased floodplain potential for damage or repetitive development. losses to existing construction as provided in paragraph 2-3(b), .Indicators for Communities with High Risk to Existing Buildings/Repetitive Loss Properties.. Lastly, once a preliminary list is developed based on these criteria, the highest priority in selecting a CAV for the upcoming fiscal year should be based upon those communities with .Sources and Indicators of Information for Communities with Known or Suspected Program Deficiencies or Violations. as discussed in paragraph 2-3(c). 2-3 FINAL DRAFT FEMA Manual 7810.4 Figure 2-1. Criteria for Selecting an Initial List of CAVs (Summary) Communities with Current and Future High Risk of Floodplain Development: . Population Growth (Current and Projected) . Number of building permits granted for new construction in SFHA . Number of CLOMRs and LOMRs . Annexations . Number of post-FIRM insurance policies . Number of NFIP claims in Zones B, C, and X . Number of State floodway permits or other higher standards (where applicable) . Sharp increase in Policies in Force (PIF) Communities with a High Risk to Existing Buildings/Repetitive Loss Properties Other indicators that a CAV is needed: . Number of structures in the SFHA . Number of variances granted in the SFHA . Number of insured repetitive loss structures . Number of substantially damaged structures (claims) . Population in the SFHA . PIF (policy count pre-and post-FIRM buildings) . Number of flood insurance claims . Ratio of claims to PIF . Percentage of community land area vs. SFHA . Number of ICC claims . Number of structures included in Flood Grant Projects (FMA, SRL, and RFC) Communities with Known or Suspected Program Deficiencies or Violations Indicators of potential problem communities: . Unresolved issues from a past CAV or CAC . State agencies’ comments . Issues identified by CRS Verification Visit . Citizen complaints . Submit-to-Rate Applications . Insurance claim files indicating potential substantial improvements . Number of variances . Probation/suspension history . Recent disasters including reports of NFIP compliance issues (SDE, etc.) . Number of CLOMRs and LOMRs that have raised apparent non-compliance issues Communities with Other Requirements for a CAV . Prerequisite for CRS participation . Prerequisite for CRS Class 4 or better 2-4 FINAL DRAFT FEMA Manual 7810.4 As stated in paragraph 2-2(c), a Risk-Based Selection Report is available in the CIS with Tier 1 and Tier 2 priority communities listed. However, much of the criteria for CAV selection (indicators and many sources) are available in the CIS in various reports, specific subject screens, or by link to another appropriate database, such as the NFIP Bureau and Statistical Agent. As stated previously, the Tier 1 and Tier 2 Risk-Based Selection Report uses selected factors as discussed below. Note: Please refer to the Annual CAP-SSSE Program Guidance for any updates and policy changes to the risk-based CAV and CAC selection criteria. b. Indicators of High Risk to Current and Future Development. Indicators of a community’s current and future development in the SFHA are important for targeting CAVs to ensure a community’s floodplain management regulations are being implemented and enforced. Increases in potential flood damages to new and existing structures will likely occur in rapidly growing communities lacking adequate regulations or enforcement requirements. The following are several major indicators for determining whether a community is experiencing development in the SFHA. Multiple factors should be used in making this determination. Other factors may also be used in conjunction with these data to verify development activity in the SFHA (e.g., Letters of Map Revision [LOMRs]). 1. Population Growth (Current and Projected). Growth rates from Census and other sources. 2. Number of building permits granted in the SFHA. Sources for this information are the historical Biennial Report, data gathered from the latest CAC or CAV, or any other source. 3. Number of Conditional Letters of Map Revision (CLOMRs) and LOMRs. The source for this information is mapping databases. 4. Annexations or boundary changes. Sources for this information are data gathered from the latest CAC or CAV, mapping .suspense. files, the U.S. Census Bureau, or any other authoritative source. However, the State Coordinator should be in contact with the State Office that processes the annexations, and this listing should be consulted prior to conducting a CAC or CAV. 5. Number of post-Flood Insurance Rate Map (FIRM) flood insurance policies. The source for this information is insurance data. 6. Number of NFIP Claims in Zones B, C, and X. The source for this information is insurance data. 7. Number of State Floodway or other more restrictive State permits. The source for this information is the NFIP State Coordinator, or the respective State permitting agency, if different. 8. A marked increase in NFIP Policies in Force (PIF). The source for this information is insurance data. 2-5 FINAL DRAFT FEMA Manual 7810.4 b. Indicators for Communities with High Risk to Existing Buildings/Repetitive Loss Properties. Because existing development is especially vulnerable to future damages, communities should be made aware of the preventive and corrective measures and the floodplain management requirements of the NFIP for regulating redevelopment, such as substantial improvements to existing structures. The following are indicators for determining whether a community has a high potential for flood damage or repetitive losses to existing development. Some of these indicators, when used alone, are insufficient for determining whether a community has a high potential for flood damage or repetitive losses to existing development. Multiple factors should be used in making this determination. Other factors may also be used in conjunction with these data to verify existing development activity in the SFHA. 1. Number of structures in the floodplain. Sources for this information are data gathered from the latest CAC or CAV, historical Biennial Report data, CRS data or data from any other known source. 2. Number of variances granted in the SFHA. Sources for this information are data gathered from the latest CAC or CAV, historical Biennial Report data, CRS verification visit, or data from any other known source. 3. Number of insured repetitive losses. The source for this information is flood insurance claims information. 4. Number of suspected substantially damaged structures. The source for this information is flood insurance claim information. 5. Population in the SFHA. This estimated computation uses Digital Flood Insurance Rate Map (DFIRM) and Census Tract data. 6. PIF. Number and dollar amount of pre-and post-FIRM flood insurance policies. The source for this information is flood insurance application data. 7. Number and dollar amount of flood insurance claims. The source for this information is flood insurance claims information. 8. Ratio of claims to PIFs. The source for this information is flood insurance claims and policy data. 9. Number of increased cost of compliance claims. The source for this information is flood insurance data. 10. Number of buildings included in HMA Flood Grant Projects (FMA, RFC, SRL). c. Sources and Indicators of Information for Communities with Known or Suspected Program Deficiencies or Violations. The following are sources of information for identifying communities with known or suspected floodplain management problems or issues: 1. Unresolved Issues from previous CACs and CAVs. 2-6 FINAL DRAFT FEMA Manual 7810.4 2. State or local agency comments. 3. Issues identified through a CRS verification visit. 4. Citizen complaints. 5. Submit-to-Rate Flood Insurance Applications that indicate that non-elevated structures have been built with the lowest floor two feet or more below the Base Flood Elevation (BFE), and that elevated structures have been built with enclosures having the lowest floor 1 foot below the BFE. The source for this information is flood insurance data. 6. Insurance claims data that may indicate substantial improvement problems. The source for this information is flood insurance data. 7. Number of variances granted in the SFHA. Sources for this information are data gathered from the latest CAC or CAV, historical Biennial Report data, CRS verification visit, or data from any other known source. 8. Probation/Suspension history; requests to be reinstated. 9. Recent Presidentially declared disasters including reports of NFIP compliance issues. 10. Number of CLOMRs and LOMRs that have raised apparent non-compliance issues. All of the above information, if applicable, can be found in the CIS, with the exceptions noted above. 2-4 Other Situations that Require a CAV a. Requests to Participate in the CRS Program. A CAV will be required for a community requesting to participate in the CRS, or for one requesting reinstatement to the CRS. The community should receive a CAV by the State or FEMA Regional Office staff within six months of an incoming request from the Chief Executive Officer. b. Changes in CRS Class. A CRS community improving to a Class 4 or better must receive a CAV. 2-5 Selecting Communities for a CAC The following are the major criteria FEMA will use in selecting communities for CACs. Generally, all CAC locations should be identified prior to the beginning of the fiscal year at the time of CAV selections. a. Selection Criteria for CACs. CACs should be conducted for communities based on the following: 2-7 FINAL DRAFT FEMA Manual 7810.4 1. All communities that are identified for a CAC on the Tier 2 Risk-Based Selection Report. 2. Communities experiencing minimal development and/or that are issuing a small number of building permits, and have not been contacted by means of a CAC, CAV, or any other type of floodplain management assistance service. 3. Communities that have requested assistance. 4. Communities that have appointed or designated a new local official with the responsibility, authority, and means to implement the NFIP. b. Contacts through Brief Visits. Contact with communities by means of a brief visit should be conducted only in conjunction with other floodplain management assistance services for travel savings and efficiency. For example, CACs can be clustered geographically or conducted in conjunction with a CAV or other floodplain management services conducted in nearby communities. If a telephone call is used as the method of contact, communities may be selected in any logical order. c. Communities with Serious Program Deficiencies or Violations. A CAC should not be conducted in communities where more serious floodplain management problems or issues are known or suspected, particularly in communities where one or more substantive program deficiencies or violations have been identified, or for those CAV candidates based on the risk-based CAV selection list. Exception: An exception to the selection process for CACs and CAVs is the post-disaster environment. In an effort to assist communities in recovering more quickly in these situations, increased post-disaster staffing often allows greater opportunity to contact communities in a shorter period of time. Consequently, when appropriate disaster assistance employees, FEMA Regional Office staff, or State staff are available in the post-disaster setting, it has become standard operating procedure (and is recommended) to perform a post-disaster CAC on all affected communities, regardless of risk-based status. However, given the more intensive effort, complexity, and skill needed for a CAV, and in deference and sensitivity to community post-disaster staff resources, a CAV is not recommended sooner than one year after a disaster. 2-8 FINAL DRAFT FEMA Manual 7810.4 Chapter 3 -Community Assistance Contact 3-1 General The CAC is a telephone call or brief visit to a NFIP community for the purpose of establishing or re-establishing contact to determine if any program-related problems exist and to offer assistance. A CAC consists of four distinct phases: Preparation, Community Contact, Documentation, and Follow-up. For each phase, the activities to be conducted are much less comprehensive than for a CAV. For this reason, a CAC should not be conducted in communities with known or suspected substantive program deficiencies or violations. CACs may also CACs are typically done to serve as a follow-up to ensure compliance issues maintain formal NFIP have been resolved; or as part of post-disaster contact with medium to community coordination to determine what level of lower risk Tier 2 NFIP assistance beyond immediate identification of communities from the substantially damaged structures may be needed. If a Chapter 2 risk ranking, and CAC reveals substantive compliance issues that to check on the status of cannot be resolved at that level and a CAV is needed, floodplain management staff should indicate in the CIS that a CAV be implementation after a new scheduled to fully analyze and address these issues. Floodplain Administrator has been named. 3-2 The Difference between Technical Assistance and a CAC A technical assistance contact, done in person or by phone, may require addressing one or more NFIP floodplain management issues in the community. Hundreds of these general technical assistance interactions occur each year and are recorded in the General Technical Assistance screen in the CIS. Technical assistance requests are typically generated through phone calls or e-mails from community officials, complaints from property owners, calls from building contractors, and inquiries from insurance agents. In contrast, a CAC must involve a more comprehensive discussion of the six basic CAC topics: Floodplain Management Regulations; FIS and FIRM availability and accuracy; Development Permit and Review Process; NFIP Community Information and Verification; Potential Deficiencies or Violations; and any needed follow-up or community action. This chapter addresses these topics. A discussion of these topics with the local floodplain administrator should provide FEMA or the State NFIP planner with a reasonable sense of how the community is implementing the floodplain management program. A CAC usually includes a level of technical assistance when specific issues are raised and addressed as part of the broader discussion. 3-1 FINAL DRAFT FEMA Manual 7810.4 3-3 Preparation The FEMA or State staff person responsible for conducting a CAC should have a sound knowledge of the NFIP, have taken the basic floodplain management course, and attended at least three CAC interviews conducted by an experienced FEMA or State NFIP professional. Before any contact is made with a community, certain key information should be reviewed. At a A major source of minimum, the information listed in section 3-3 (a information is the through e) should be thoroughly reviewed prior to community file that is the contact. Additional relevant data and maintained in the respective information should be reviewed when a greater FEMA Regional Offices, or familiarity with a community is necessary. A list of similar files maintained by suggested additional information and sources is the State. provided in section 4-2 of this manual. A list of suggested materials to bring for brief visits is also provided in section 4-5. a. Community Floodplain Management Regulations. State agencies conducting CACs on behalf of FEMA should contact or visit their respective FEMA Regional Office to obtain or verify the latest floodplain management regulations maintained in the community file. If new regulations are pending, it may be necessary to review both. b. Flood Insurance Study and Maps. The latest FIS and FIRM should be reviewed. c. CAC and CAV Reports. Review previous CAV and CAC information to provide a basis for comparison with past performance, to identify areas and issues, and to evaluate progress in implementing the listed recommendations. Identify any unresolved compliance issues from prior CAVs or CACs. d. NFIP Community Data. Review NFIP community data contained in the CIS, including the Risk-Based Selection Report for the community. Additional insurance data may be found online through a link in the CIS. Use these data systems and other information to evaluate the following issues: 1. If the community participates in the CRS program, identify its current CRS ranking and verified activities (in the CIS). 2. Review the most recent claims, policies, or other insurance data for the community. Identify the number of repetitive loss and severe repetitive loss buildings in the community. If applicable, review the submit-to-rate flood insurance applications to identify possible violations or improper variances. 3. Review the number of LOMRs or Physical Map Revisions (PMRs) as a preliminary measure of the community’s development activity and/or to determine whether a restudy is necessary. Determine if there are any CLOMRs that have not been closed with a LOMR. Determine if an FIS is currently underway for the community, and the FIS status. e. Recent Correspondence. Review any recent correspondence with the community that may be useful in assessing local attitudes toward land-use regulations and the 3-2 FINAL DRAFT FEMA Manual 7810.4 NFIP. Use this correspondence to assess the community’s level of NFIP-related activity, past history, technical assistance needs, and problems in implementing NFIP requirements; to identify those at the local level who are involved with NFIP implementation; and to determine any outstanding issues that require follow-up or site investigation. 3-4 Community Contact The following points are a guide for discussions with the community. As you conduct the call or brief visit for the CAC, you need to use appropriate judgment as to how much detail to give regarding each aspect of the community’s program and where to focus needed attention. Remember: This is a brief visit or call to discuss overall community knowledge and implementation. a. Purpose of Contact. Generally, the telephone call or brief visit should be with the local official who has the responsibility, authority, and means to implement the NFIP and its requirements. Before any detailed discussion of the community’s floodplain management program begins, explain the purpose of the contact. The CAC includes six areas that should be addressed: 1) floodplain management regulations; 2) map availability, accuracy, and recent flooding history; 3) development permits and review process; 4) NFIP community information review and verification; 5) potential deficiencies or violations; and 6) any follow-up and/or community action that is needed. The recommended approach for addressing each of these areas is provided below and includes a list of issues for discussion during the contact. The discussion should be tailored to the method of contact (telephone or brief visit). A detailed set of CAC discussion topics is listed in section 3-4 (a through f), and an abbreviated checklist of these issues (shown in Appendix A) may be used during the actual contact as a reference. Several FEMA Regional Offices and States have developed their own CAC checklists tailored to their needs. Check with your State or FEMA Regional Office for other examples. If, as a result of a telephone contact with a community, program deficiencies or violations are suspected, it may be necessary to follow-up with a brief visit to the community to gain a better understanding of the problem(s) and/or to verify suspected issues. Most CACs are done by telephone and are intended to establish or reestablish contact to determine if any program-related problems exist, provide technical assistance, and build a relationship that will encourage the community official to Beyond planned calls, CACs may be made with little advance notice as the NFIP representative is driving through a community for other travel requirements, such as a final meeting or a CAV. contact the State or FEMA Regional Office when NFIP-related questions arise. CACs that can be made by a brief visit, when practical, may provide more effective communication with the community official. Whether the CAC is done by brief visit or by telephone, preparation should be done in advance of the CAC. However, if the community visit is based on a passing travel opportunity, the NFIP representative can turn that visit into a CAC. The community data and other information should be reviewed later and the contact 3-3 FINAL DRAFT FEMA Manual 7810.4 completed by telephone if necessary. b. Pre-Contact Tour. A tour of the SFHA is not a requirement of the CAC. However, a pre-contact tour may be conducted to become familiar with the community, or may be necessary following a CAC in order to address problems or issues raised during the contact or in cases when one or more substantive program deficiencies or violations are suspected as a result of the contact. c. Community Floodplain Management Regulations 1. Determine whether the floodplain management regulations reviewed are the most current. If not, ask the community to either provide or send a copy of the current adopted regulations, depending on the method of the contact. 2. Ask if the community has a building code in addition to its floodplain management ordinance. If so, identify which building code it is using. Are the community floodplain management regulations administered only through a stand-alone floodplain management ordinance or through both the ordinance and the building code? If it has adopted the International Building Code, has the community also adopted Appendix G or another companion ordinance? Ask which office in the community is implementing the building code and which office is implementing Appendix G or a companion ordinance. 3. Discuss any inadequacies, omissions, or other problems identified during the prior review of the regulations. 4. If appropriate, ask if the community needs assistance in updating or revising the current floodplain management regulations. Discuss a schedule for accomplishing this requirement with the community. 5. Discuss other issues related to the community’s floodplain management regulations. d. Map Availability and Accuracy 1. Determine whether the FIS and FIRM in use by the community are the most current versions. Determine whether community officials need instruction on using the DFIRM or digital mapping tools. Do officials understand what types of resources are available from the FEMA Map Service Center (MSC) website? 2. Ask whether other maps or studies are used for regulating development in the SFHA. If other maps and studies appear to have an impact on the effective BFEs, or if the community has developed BFEs in areas where elevations have not been provided by FEMA, obtain a copy of the maps or studies. 3. Determine whether the local official has any particular problems in using FEMA maps or study data (e.g., determining a BFE in A Zones without BFEs). 4. Inquire whether the community has experienced any recent flooding and ask them to briefly describe the extent (source and location) and damage (e.g., were there any structures that were substantially damaged or in areas not designated 3-4 FINAL DRAFT FEMA Manual 7810.4 as an SFHA?). If so, determine the general cause (e.g., stormwater/drainage problems, an event greater than the 100-year frequency flood, failure of a flood-control project, project design standards exceeded, inaccuracies in the mapping or hydrology/hydraulics). 5. Inquire whether the local official has any problems with the accuracy or completeness of the FIRM or FIS report. Try to narrow these down to specific stream segments and panels whenever possible. 6. Determine whether the boundaries of the community have been modified by annexation or if the community has otherwise assumed or no longer has authority to adopt and enforce floodplain management regulations for a particular area. If so, determine if any corporate boundary change involved an SFHA. Obtain a copy of an official community map showing the boundary changes and, if one is available, obtain a copy of any ordinance or other legal description of the community’s new boundary limits. This map may also be used by FEMA as part of a map revision. 7. Inquire whether any structural flood-control projects are planned, under construction in the community, or completed since the date of the last CAC or CAV. Ask if this project has changed or will change the boundary of the SFHA on the FIRM. If so, determine whether officials plan to submit a LOMR, as is required to update the FIRM. 8. Because many map revisions are based on channel modifications and associated channel maintenance activities, determine whether the community is aware of its maintenance responsibilities. 9. Determine whether local officials are familiar with the process for Appeals, Revisions, and Amendments to FIRMs. 10. Discuss any other map-or study-related issues. e. Development Review Process 1. Determine what the development review, permit, and inspection procedures are for new construction and for rehabilitations, additions, or other improvements of an existing structure, particularly those that may meet the substantial improvement or substantial damage definitions. 2. Determine what the review, permit, and inspection procedures are for development other than structures, such as mining, dredging, filling, grading, paving, excavation, or drilling operations. 3. Determine what procedure is used for the following: (a) Obtaining the lowest floor elevation in all A-Zones where BFEs are used [44 CFR §60.3(b)(5)]; 3-5 FINAL DRAFT FEMA Manual 7810.4 (b) Obtaining the elevation of the bottom of the lowest horizontal structural member of the lowest floor in all V-Zones [44 CFR 60.3(e)(2)]; and (c) Usage of the FEMA Elevation Certificate to record and store lowest floor elevation data. (This is required for CRS communities and recommended for non-CRS communities.) 4. Determine what procedure is used to secure certifications for the following: (a) Floodproofed, non-residential structures [44 CFR §60.3(c)(4)]; (b) Openings for fully enclosed areas below the lowest floor subject to flooding when the design differs from minimum NFIP criteria [44 CFR §60.3(c)(5)]; (c) Anchoring of a pile-and-column foundation and structure attached thereto in all V Zones [44 CFR §60.3(e)(4)]; and (d) Breakaway walls in all V Zones when design strength exceeds the minimum NFIP criteria [44 CFR §60.3(e)(5)]. 5. Determine what process the community uses to determine the following: (a) Where floodways have not been designated, cumulative floodplain development will not increase the water-surface elevation of the base flood more than 1 foot in Zones A1-30 and AE [44 CFR §60.3(c)(10)]; and (b) Where floodways have been designated, encroachments would not result in any increase in the flood levels within the community during the occurrence of the base flood discharge in SFHAs [44 CFR §60.3(d)(3)]. 6. Determine the community’s process for ensuring that buildings are constructed with electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities that are designed and/or located to prevent water from entering or accumulating within the components during conditions of flooding [44 CFR §60.3(a)(3)]. 7. Determine the community’s process for ensuring that all new construction and substantial improvements are designed (or modified) and adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Determine the process for ensuring that construction is done with materials resistant to flood damage [44 CFR §60.3(a)(3)]. 8. In communities with A-Zones without BFEs, determine whether local officials require BFE data for subdivisions of at least 50 lots or 5 acres [44 CFR §60.3(b)(3)]. Indicate that BFEs must be derived from other sources or developed using methodologies comparable to an FIS, and discuss available options, such as Quick 2 described in Managing Floodplain Development in Approximate Zone A Areas (FEMA-265) with officials. 3-6 FINAL DRAFT FEMA Manual 7810.4 9. In communities with A Zones without BFEs, determine whether local officials obtain, review, and reasonably use any BFE and floodway data available from a Federal, State, or other source [44 CFR §60.3(b)(4)]. Discuss the option of having the community require that the permit applicant develop a BFE. 10. Have local officials describe the regulatory standards and operating procedures for enforcement, including how periodic inspections of the floodplain are conducted. 11. Have local officials describe the regulatory standards and operating procedures for variances. In cases where variances have been granted, ask whether notifications to property owners were provided concerning the effect of the variance on flood insurance rates. 12. Have local officials describe the process used to review proposals for subdivisions within the SFHA, including what flood-related issues are reviewed. 13. Inquire about the general use of land in an SFHA and the potential for future development in the floodplain. 14. Discuss any other issues related to the community’s floodplain management practices or issues that affect enforcement/compliance and development conditions in the floodplain. 15. Address any unresolved floodplain management issues from a previous CAV or CAC. 16. Ask local officials to describe the permit review process, including how the results of those reviews and determinations are recorded and maintained. For instance, some communities purge files, such as certifications on a plat map or design drawings, every five years. Remind communities that these records must be maintained in perpetuity. f. NFIP Community Information Review and Verification 1. Review with local officials the number of policies in force and the number of flood insurance claims paid. 2. Review or verify any other relevant data contained in CIS. (e.g., name and address of CEO, address of Floodplain Administrator). 3. Ask how long the current Floodplain Administrator has been in place. 4. Ask the Floodplain Administrator the type of training that he/she has had and whether it included NFIP training. Ask whether the Floodplain Administrator is a Certified Floodplain Manager (CFM) and whether any other employees are CFMs. Describe what NFIP training is available and make recommendations for training. 3-7 FINAL DRAFT FEMA Manual 7810.4 g. Program Deficiencies and Potential Violations. Discuss any program deficiencies or potential violations identified during the CAC. h. Summarize the Findings and Follow-up Actions. Discuss the findings, next steps, and any follow-up assistance you will provide. Identify any community action that will be required. 3-5 Documentation a. The findings of the contact shall be entered in the CIS to facilitate FEMA’s evaluation of individual floodplain management programs and the NFIP nationally. It is essential that sufficient documentation and comments/notes of the CAC are entered into the CIS, as the CIS serves to document the types of problems or the assistance needed in the community. It also serves as a tool for advancing the contact through the assessment and assistance processes by ensuring that the necessary follow-up actions required by the community are made in a timely manner. b. Document in the CIS whether a community floodplain management program deficiency has been identified. For each floodplain management program category (e.g., floodplain management regulations, administrative and enforcement process and procedures, engineering – flood maps and study, other), indicate whether the floodplain management problem is serious, minor, or non-existent. The following guidance is provided for completing this section in the CIS: 1. Floodplain Management Regulations. Review the CIS Ordinance Screens for the community and update as necessary based on your discussion with the community. (a) Serious. Serious program deficiencies in the community’s floodplain management regulations are defined as those not compliant with NFIP floodplain management criteria; or those that do not contain adequate enforcement provisions; or those that cannot be enforced through other mechanisms. Such deficiencies could result in the community’s suspension. For example: Community land-use policies and procedures, such as the local zoning, subdivision, or building code requirements, are inconsistent with local floodplain management regulations. (b) Minor. Minor program deficiencies in the community’s floodplain management regulations are those that need to be corrected, but that have not impeded the community's community’s ability to enforce the NFIP floodplain management provisions or that are not critical to the effective implementation of the regulations. For example: The community has adopted one CAC Findings, Documentation, and Notes must be entered into the CIS as soon as possible after the contact to ensure that nothing is forgotten or overcome by events. 3-8 FINAL DRAFT FEMA Manual 7810.4 or more of the I-Codes (International Building Code, International Residential Codes, etc.) and also has a stand-alone floodplain management ordinance that duplicates the building standards in the adopted building code. (c) None. .None. indicates that the community’s floodplain management regulations are compliant. 2. Administrative and Enforcement Process and Procedures. (a) Serious. Serious program deficiencies in a community's administrative and enforcement processes and procedures are those that have resulted or could result in substantive violations that increase potential flood damages or stages in the community. Examples of such substantive violations include: Obstructions in floodways or stream channels that increase flood stages; Residential structures that are located with a lowest floor below the BFE; Non-residential structures having a lowest floor below the BFE and not properly floodproofed; and Structures in V Zones with non-breakaway walls below the BFE. Further Examples of Serious Program Deficiencies Include the Following: Failure to require permits for proposed construction or other development within floodprone areas or failure to review such permit applications and subdivision proposals to ensure that all such construction and development is adequately designed, located, constructed, and anchored to minimize flood damage. Failure to obtain and reasonably use any available flood data as criteria for setting local elevation and floodproofing requirements. Administrative procedures and practices that are not workable or cannot reasonably ensure compliance with the local ordinance (e.g., the community does not inspect structures for compliance; the community does not record "as built" elevation data). Variance procedures or variances granted that are not consistent with NFIP variance criteria. (b) Minor. Minor program deficiencies in a community’s administrative and enforcement processes and procedures are those that are easily corrected and have not resulted in multiple and substantive violations or increased exposure to flood losses. Minor program deficiencies generally involve some type of mitigating factor and can be resolved within a relatively short period of time through the provision of technical assistance. Problems may be 3-9 FINAL DRAFT FEMA Manual 7810.4 considered minor if a community demonstrates a willingness to take positive action to resolve them. Examples of Minor Program Deficiencies Include the Following: Permit or variance records that are not organized or easily accessible; The BFE is not indicated on the permit; and The community is unfamiliar with certain NFIP requirements (e.g., floodway encroachments, notifying property owners of the effect of a variance on flood insurance rates), but no specific violations resulted from the community’s lack of knowledge and unfamiliarity with the requirements. (c) None. None indicates that no problems were identified. 3. Engineering: Flood Maps and FIS. (a) Serious. Serious problems with the community’s flood maps or FIS are those that have communitywide impact and involve major changes in the floodway or adjustments to the BFE that can be remedied by a restudy, or those involving a boundary change that includes significant additional SFHAs. Serious problems with the community’s flood map or study generally need immediate action for a map revision. Provide as specific information as possible (FIRM Panel and Reach) to the FEMA Regional Office Engineer along with a written description of the problem. (b) Minor. Minor problems with the community’s flood maps or study are those that affect only one or two map panels or one flooding source and can be remedied by a LOMR or PMR. Also, a boundary change that does not include areas in the SFHA or includes a relatively small parcel of land in the SFHA with little or no development located on the property is considered a minor problem that generally can be resolved with the next comprehensive revision. (c) None. None indicates that no problems were identified. 4. Other problems or issues that do not fit into the regulations, administrative, or engineering categories. (a) Serious. Serious problems are actions being taken by the community that are inconsistent with or cannot reasonably ensure compliance with local floodplain management regulations. (b) Minor. Minor problems are actions being taken by the community that need to be corrected, but that have not impeded the community’s ability to enforce 3-10 FINAL DRAFT FEMA Manual 7810.4 the NFIP floodplain management provisions; or are not critical to the effective implementation of the regulations. (c) None. None indicates that no problems were identified. c. Serious and minor CIS CAC fields require additional narrative to address the details that support the findings. These comments should be entered into the CIS CAC fields under the appropriate heading, along with any other narrative findings. d. CAC information, including the findings, should be entered into CIS within 15 days of contacting the community. e. Any documentation related to follow-up activities should be entered into the CIS within 15 days from the date that follow-up activities are completed and the CAC is considered closed. A chronology of events or activities related to issues or problems identified during the CAC, or related promises of assistance, should be entered into the CIS .Findings. or .Follow-up. screens as appropriate and should include any other relevant follow-up documentation. 3-6 Follow-up a. The CAC information entered into CIS should indicate whether follow-up action is required or further action is needed. A CAC is not concluded until each of the issues documented in the findings are resolved and assistance is provided. Community assistance may take a number of different forms depending on the situation and the problems and major issues discovered. It may be as simple as providing information brochures or other materials about the NFIP; or it may involve more extensive efforts, such as providing assistance in updating the community’s floodplain management regulations, a workshop on implementing the NFIP and its The CAC report in the CIS requirements, or a CAV. Refer to should provide specific Chapter 7 for additional guidance on examples of the mapping follow-up activities and coordinating problems identified by the floodplain management issues with community, and the FEMA. appropriate FEMA Regional NFIP engineer should be b. A CAC should not be closed until each notified of those issues. issue or problem identified has been resolved or remedied to the maximum extent possible, and any assistance promised to the community has been completed. The FEMA Regional Offices will make the final determination as to whether a CAV, enforcement action, or other extensive type of follow-up is required when such actions are recommended by an agency conducting CACs on behalf of FEMA. c. A follow-up letter is not required to be sent to each community that has been contacted — especially those where problems appear to be non-existent. However, a follow-up letter should be sent in the following instances: 3-11 FINAL DRAFT FEMA Manual 7810.4 1. When a community raises a particular issue or problem and a letter would affirm the response given or provide further clarification of the issue to the community. 2. When there are promises to provide information to the community (e.g., brochures, handbooks, or other NFIP materials). If materials are mailed, a short cover letter should be included. If the information is suitable for e-mail attachments, then an e-mail message is appropriate. A copy of the letter or e-mail should be placed in the community file (and copied into the CIS) to document that the follow-up action has been completed. 3. When deficiencies in the floodplain management regulations, program deficiencies, or possible violations have been identified (3-6(b)). Document findings in a letter, along with any required follow-up, and inform the community if a CAV may be scheduled in the future. 3-12 FINAL DRAFT FEMA Manual 7810.4 Chapter 4 -Community Assistance Visit: Preparation 4-1 General The CAV is a scheduled visit to an NFIP community for the purpose of conducting a comprehensive assessment of the community’s floodplain management program and its knowledge and understanding of the floodplain management requirements of the NFIP. The purpose of a CAV is also to provide assistance to the community to remedy program deficiencies and violations identified during the CAV. The CAV consists of four distinct phases: 1. Preparation; 2. Community Visit; 3. Documentation/assessment or evaluation report; and 4. Follow-up. This chapter addresses the first phase, Preparation. a. Preparation and background work The purpose of the CAV is to is important for three reasons: assess the local floodplain management program and offer 1. To become familiar with the assistance to the community in community; understanding the NFIP 2. To ensure complete coverage requirements. of the issues when the visit takes place; and 3. To adequately characterize a community’s implementation of the NFIP by combining the information gathered during this phase with the information obtained during the actual visit. b. Preparation and background work involves the following four important steps: 1. Review pertinent information about the selected community; 2. Compile a list of issues and sites; 3. Contact the community to schedule a visit; and 4. Compile a list of materials and equipment for the CAV. 4-2 Review Pertinent Community Information In order to assess an NFIP community’s floodplain management needs and determine the effectiveness of a community’s floodplain management program, it is necessary to understand the individual community characteristics and NFIP background. a. Sources of Data and Information All sources of information should be reviewed as early as possible to determine whether flood data and other floodplain management information are available. Pertinent information for the CAV should be obtained well in advance so that issues and problems can be compiled prior to the visit. The basic source of floodplain management data for this purpose is FEMA’s CIS. States conducting CAVs under an agreement with FEMA may acquire pertinent data using their own community files, from information obtained by a visit to the FEMA Regional Office, by using the CIS, or by requesting copies from the FEMA Regional Office via e-mail. 4-1 FINAL DRAFT FEMA Manual 7810.4 b. Types of Data and Information: 1. NFIP Community Data. Review NFIP community data contained in the CIS, insurance, mapping and other databases to: (a) Review the most recent claims, policies, or other insurance data for the community, such as substantial damage reports. If applicable, review submit-to-rate flood insurance applications to identify violations or improper variances and insurance data for Zone B, C, and X policies that may indicate rating mistakes. (b) Review previous CACs and CAVs. (c) Review FEMA grant projects showing acquisition and elevation projects by address (to develop a sample to verify that acquisition projects remain as open space and that elevation projects are NFIP compliant). (d) Search community websites, databases, and other online information, such as ordinances, community permits, and FEMA Elevation Certificates. 2. Floodplain Management Regulations. Review the latest floodplain management ordinance adopted by the community. If that ordinance is incomplete for NFIP purposes because it relies on other supporting floodplain management regulations that may be in the community’s subdivision regulations, zoning ordinances, or building code, those documents must also be reviewed for this purpose. State agencies should coordinate with the FEMA Regional Office to verify the latest version of the ordinance maintained in the community file. If new regulations are pending, it may be necessary to review both. In reviewing Figure 4-1 .Adoption of Building Codes,. inquire whether the community has a building code in addition to its floodplain management ordinance. If so, identify which building code it is are using. Are floodplain management regulations administered only through a stand­alone floodplain management ordinance or through both the ordinance and the building code? If the community has adopted the International Building Code, has it also adopted Appendix G or another companion ordinance? 4-2 FINAL DRAFT FEMA Manual 7810.4 Figure 4-1. Adoption of Building Codes Adoption of Building Codes With the publication of the International Code Series (I-Codes™) in 2000 and more recent editions, and the National Fire Protection Association (NFPA) NFPA 5000: Building Construction and Safety Code™ in 2003 and more recent editions, more and more communities are enforcing floodplain management requirements through their building codes. Both the I-Codes™ (2003 edition and more recent editions) and the NFPA™ 5000 (2003 edition and more recent editions), if adopted without amendments, are consistent with the minimum flood resistant design and construction requirements of the NFIP. The I-Codes™ includes the following series of codes: International Building Code® (IBC®), International Residential Code™ (IRC™), International Plumbing Code®, International Mechanical Code®, International Fuel Gas Code®, and International Private Sewage Disposal Code®. Note that usually when States and communities adopt the IBC® they also adopt by reference the IRC™, which regulates detached one-and two-family dwellings and multiple single-family dwellings (town homes). However, a State or community may choose not to regulate one-and two-family dwellings and townhouses by amending the IBC® to exclude the reference to the IRC™. If a State or community specifically excludes this reference, the buildings regulated by the IRC™ must be covered in a community’s floodplain management ordinance or other regulations. Although adoption of one of the new model building codes (either the I-Codes™ or NFPA™ 5000) by States and communities should improve overall compliance with the flood-resistant design and construction requirements of the NFIP, extra effort may be required when reviewing community floodplain management regulations, to ensure compliance with the minimum requirements of the NFIP. 4-3 FINAL DRAFT FEMA Manual 7810.4 Figure 4-1 (cont’d). Adoption of Building Codes Review of the State Building Code. States that adopt the I-Codes™ or NFPA™ 5000 as the basis for their State-mandated building code may also amend the base model code. Any amendments could directly or indirectly affect the flood-resistant design and construction requirements of the NFIP. For example, the State could change the flood-related provisions of the code to make them non-compliant, or exempt certain types of structures from the State-mandated building code, such as agricultural structures or one-and two-family dwellings as described above. The first step is to determine whether States in your Region have a State-mandated building code that communities must adopt. In States that have adopted a State-mandated building code, the NFIP State Coordinator should contact the State building code office to determine whether the State has adopted either the IBC® (and other I-Codes™) or NFPA™ 5000 as the basis for the State-mandated building code. The NFIP State Coordinator should also find out whether the code was amended and determine if any of the amendments affect the flood-resistant design and construction requirements in a way that make them non-compliant with the NFIP requirements. In addition, the NFIP State Coordinator will need to make a determination of whether more restrictive State floodplain management requirements have been affected. Ongoing coordination should occur between the NFIP State Coordinator and the State building code office. Adoption of Building Codes by Individual Communities. Similarly, in communities where there are no State-mandated building codes or in communities where the State allows communities to amend the State building code, the FEMA Regional and State staff will need to determine whether the community has adopted either the IBC® (and other I-Codes™) or NFPA™ 5000. It is also necessary to find out whether the code was amended and determine whether any of the amendments make the flood-resistant design and construction provisions non-compliant with the requirements of the NFIP. NFIP Provisions not Addressed by the Building Code. While the NFIP requires communities to regulate all development in SFHAs, building codes typically apply only to the construction of buildings. Generally, they do not regulate other types of development, the location of buildings, or the subdivision of land. The community can adopt Appendix G of the IBC® or Annex C of the NFPA™ 5000, which contain the other NFIP requirements, or can address the requirements through a free-standing or companion floodplain management ordinance or other regulations. The building code, or a combination of the code and another ordinance, must address all development. The FEMA Regions will need to ensure that all development is regulated and that there are no floodplain management regulatory gaps. In addition, the FEMA Regions will need to make sure that the FIRM and FIS are appropriately referenced. The guide, Reducing Flood Losses Through the International Code Series: Meeting the Requirements of the National Flood Insurance Program, 3rd edition, dated 2007, can help communities decide how to integrate the I-Codes™ into their current floodplain management regulatory processes in order to meet the requirements for participation in the NFIP. The checklists and crosswalks presented in the guide can also help in reviewing community floodplain management regulations. 4-4 FINAL DRAFT FEMA Manual 7810.4 3. CAV and CAC Reports. Review previous CAV and CAC reports as a basis for comparison with past performance to identify areas and issues, and to evaluate progress in implementing recommendations for follow-up. 4. Hazard Mitigation Plans, Comprehensive Plans, Zoning and Subdivision Regulations, Building Codes, Local Stormwater Management Ordinances, Drainage Codes, Capital Improvement Programs, and other Land-use Programs and Regulations. If available (check the community’s website), plans and regulations should be reviewed in conjunction with floodplain management regulations and flood maps, noting the community’s policies toward development both in general and specific to its floodplain, the physical setting of the community’s land-use pattern and growth pressure, type and extent of potential development in the floodplain, the consistency of these plans and regulations with the community’s floodplain management regulations, and potential problem areas. 5. FIS and Maps. Review the latest FIS and FEMA map. Determine whether any re-study efforts are underway. These maps can be obtained online from FEMA’s Map Service Center. 6. Letters of Map Change. Review Letters of Map Amendments (LOMAs), LOMRs, Conditional Letters of Map Amendment (CLOMAs), CLOMRs, and Physical Map Revisions to determine the community's level of floodplain-related development activity; to determine changes affected by hydrologic conditions, such as dams, diversion channels, or detention basins; to determine changes affected by hydraulic conditions, such as channelization, new bridges, culverts, or levees, to estimate the accuracy of current maps, and to verify that a community is using these maps to regulate development. The addresses or locations of areas where changes have occurred since the date of the most recent map should be noted for use during the floodplain tour to verify activities, such as channel maintenance. Verify proper permits for any properties that were removed based on fill placement. 7. Aerial Photography and Topographic Maps. Often available online, these maps should be reviewed in conjunction with flood maps noting topography, specific land uses and land patterns, type and extent of encroachments, potential problems areas, and other characteristics. 4-3 Compile a List of Issues and Sites Aerial and topographic maps may help identify potential flow constrictions and other floodplain conditions and assist in the identification of areas to tour in communities with extensive floodplains. Based on the review of background information and any available data from NFIP and Hazard Mitigation Grant resources, compile a list of issues and sites to be examined during the CAV. For example, the list might include sites that involve questionable 4-5 FINAL DRAFT FEMA Manual 7810.4 development in the floodplain, issues or problems related to the implementation of NFIP requirements in each flood zone, questions of map accuracy at specific sites and flood-hazard reduction projects, such as open space acquisition programs, building Issues or sites should be noted elevation projects, Public Assistance 406 separately and reviewed during Mitigation Projects, stream maintenance the floodplain tour or discussed programs, drainage or stormwater during the course of the visit. management requirements, or retrofitting/floodproofing programs. Issues or questions pertaining to specific site locations should be noted on the maps used during the floodplain tour. This is important when a tour of the entire floodplain is not possible because of community size. 4-4 Contact the Community to Schedule a Visit Complete the following two steps for scheduling a visit: Contact the designated local official who has the responsibility, authority, and means to implement the NFIP requirements to schedule the visit; and send a follow-up letter to the CEO with a copy to the designated FPA confirming the date and purpose of the visit (sample letter in Appendix B) and encouraging the CEO or FPA to invite all other community staff that may be interested in floodplain management to attend. a. Telephone Contact. After reviewing background information and preparing a list of sites to examine and issues about which to obtain information, contact the designated local official to schedule a visit. This contact should be made at least 30 days before the visit. The designated local official responsible for implementing the NFIP requirements may vary depending on the type, size, and level of sophistication of the community. For example, in smaller communities, the local official responsible for implementing the NFIP requirements may be the mayor, city clerk, or county board chair. In a larger community with a separate zoning, building, or public works department, the designated local official may be a zoning or building administrator, building inspector, zoning compliance officer, or code enforcement officer. The following is a checklist of items that should be covered during the telephone contact to schedule the visit: 1. Describe the purpose of the meeting to the local official and summarize the agenda. 2. Establish the date, time, and location of the meeting. 3. Obtain the name, title, address, and telephone number of the CEO (mayor, county commission chair) to address the letter to the community confirming the CAV meeting. 4. Request that local officials involved in floodplain management or the development review process be present during the CAV meeting or be available for questions. Those critical to the operation of the local floodplain development review and approval process should attend. The following is a list of suggested local officials typically involved in review and approval of development proposals. This list should be used when 4-6 FINAL DRAFT FEMA Manual 7810.4 the local official needs assistance in deciding who should attend the CAV meeting: (a) FPA; (b) Building Official; (c) Planning Official; (d) Subdivision Review Official; (e) Zoning Official; (f) Public Works or Public Utilities Official; (g) Housing and/or Community Development Official; (h) CEO (Mayor, Council Chairman, County Board Chairman); (i) Council Members; (j) Planning Commissioners; (k) Planning, Zoning, and Variance Board Members; (l) Health Official; (m)Transportation Official; (n) Community Engineer/Surveyor; (o) Community Attorney; (p) Village, City, or County Clerk; (q) Emergency Preparedness Official; and (r) Designated CRS Coordinator. 5. Explain that there will be a tour of the community's floodplain prior to the CAV meeting. Depending on the circumstances, invite the local official to tour the floodplain with you before or after the meeting. In addition to the sites you previously selected from your research, ask for suggestions of additional sites to visit for typical examples of new construction, subdivisions, channel modifications or other man-made changes, natural changes in the floodplain, or areas where map accuracy is in question. 6. Confirm whether the file copy of the community’s regulations is the most up-to-date. If not, ask that a current version of the regulations be sent 4-7 FINAL DRAFT FEMA Manual 7810.4 (preferably by e-mail) as soon as possible, or made available during the CAV. 7. Establish the local official’s familiarity with the NFIP (e.g., ask how long the local official has worked with the NFIP, and whether he/she has attended NFIP workshops or is a CFM). 8. Ask the local official to have the following items available during the meeting: (a) The current FIRM and/or FIS report. (b) Copies of the latest floodplain management regulations and any other plans, regulations, or codes that are being used to assist in floodplain development (e.g., comprehensive plans, building codes, stormwater management regulations, flood hazard mitigation plans). (c) Any other flood-related map or studies currently in use. (d) The community’s permit files for floodplain development for at least the past three to five years. Ask the local official how these files are organized (by address, name of property owner, tax parcel number, etc.). This knowledge may be useful when relating structures identified during the floodplain tour to the permit file. (Note: It may not be possible to review all floodplain development permit files for any given year if a substantial number of permits were issued. In this case, a critical sampling of permits or a cross section of development activity should be reviewed in order to make a determination of whether the community is properly implementing the NFIP requirements and managing its floodplain. The number of permits that should be reviewed will also depend on the extent of questionable development activity discovered during the floodplain tour.) (e) Forms, checklists, or other documents used to record permit activities. (f) Variance files, including the documentation justifying the granting or denial of variances. 9. Ask the local official to identify any other floodplain management issues or initiatives beyond the regulations (e.g., acquisition program, flood warning system, mitigation plans, hurricane evacuation plans, stormwater management plans). 10. Mention that a letter confirming the CAV meeting will be sent to the CEO with a copy to the local official. 11. Inquire whether any of the community information referenced here is available digitally and can be provided in advance via e-mail. These materials will aid in your preparation, and will also help you use localized information to communicate and document any concerns. 4-8 FINAL DRAFT FEMA Manual 7810.4 b. Confirmation Letter. A letter confirming the visit and information requests should be sent to the CEO with a copy to the FPA. The sample letter provided in Appendix B of this document may be revised to reflect the particular situation. 4-5 List of Materials and Equipment for a CAV Figure 4.2 contains a suggested list of materials and equipment for use during the CAV. Please note that this list is not all-inclusive. Figure 4-2 CAV Materials and Equipment List The community’s floodplain management regulations Flood Hazard Boundary Maps, FIRM panels, the FIS report, Digital Flood Maps, or FIRMettes Community Biennial Report Letter(s) confirming the CAV NFIP Regulations Flood insurance information for the community (e.g., number of policies in force, dollar amount of coverage, claims data, etc.) Blank Elevation Certificate Forms and Floodproofing Certificate Forms Model Floodplain Management Ordinance FEMA publications (See www.FEMA.gov for a list of Floodplain Management related publications) Digital equipment such as a camera, laptop, and GPS unit (for accurate coordinate locations to be used within a Geographic Information System or digital orthophoto overlays, allowing verification of properties in the floodplain) Disaster history information such as public assistance and individual assistance information, or Mitigation Assessment Team reports Submit-to-rate flood insurance data Substantial damage information, repetitive loss information from flood insurance claims data, and property addresses Topographic maps, digital orthophoto overlays, and digital orthosite images available via the Internet FEMA Grant Report to verify that acquisition projects are maintained as open space, and that elevation projects are properly elevated (from SHMO) FEMA 406 Hazard Mitigation completed Projects under Public Assistance Various FEMA and State prepared outreach materials that are applicable to the community’s flooding and development conditions. Supplying levee outreach materials, brochures on Mitigation Grant Programs and the CRS would be one example. 4-9 FINAL DRAFT FEMA Manual 7810.4 Please note that most communities desire these items in digital format so they can incorporate the data into their own data systems. Many State and FEMA Regional Office staffs bring this and other .library. type documents in digital format, along with selected printed information, such as forms and brochures. Figure 4-3 provides a checklist to aid in preparing CAVs. Figure 4-3 Quick Reference Checklist for CAV Preparation . Review Pertinent Community Information . Floodplain management regulations . FIS report and maps . Past CAV and CAC response(s) . Mitigation plans, comprehensive plans, zoning and subdivision regulations, building codes, local stormwater management, drainage codes or ordinances, and other land-use regulations . Aerial photography and topographic maps . Historical Biennial Report data . Latest claims, policy, CRS and other insurance data . LOMAs, LOMRs, CLOMAs, CLOMRs, and physical map revision information . Compile Issues and Sites List . Contact the Community to Schedule a Visit . Telephone call to schedule date and time of meeting . Follow-up letter to CEO to confirm date and time of meeting . Compile appropriate materials and equipment for the CAV . Community floodplain management regulations . Effective FEMA Maps and the FIS . CIS data . Letter(s) confirming the CAV . NFIP regulations . Flood insurance information on the community . Elevation certificate forms and floodproofing certificate forms . Model floodplain management ordinance . FEMA publications, including floodplain management and technical bulletins . Camera, GPS, laptop . Disaster history information . Submit-to-rate flood insurance data . Substantial damage information from flood insurance claims data . Topographic maps 4-10 FINAL DRAFT FEMA Manual 7810.4 Chapter 5 -Community Assistance Visit 5-1 General The community visit is the critical part of conducting a CAV. Onsite analysis and face-to-face meetings provide the best gauge of the effectiveness of a community's floodplain management process. The community visit has the following four elements: 1. The floodplain tour; 2. Meeting with local officials; 3. Examination of the floodplain permit, variance, and subdivision files; and 4. A summary meeting of the information gathered and issues identified. The process described in this chapter is for the meeting with local officials that occurs prior to the permit and variance file review. However, depending on circumstances, a variation of this process may be performed (e.g., permit and variance files may be reviewed prior to the meeting with local officials). While the number of days to conduct the community visit will vary depending on the size, type, and extent of floodplain management issues, in most cases, all four elements can be completed during the community visit phase. 5-2 The Floodplain Tour: Purpose and Strategy a. The three major purposes of the community floodplain tour: 1. To become generally familiar with the community’s floodplain areas, including overall land use patterns, density and type of floodplain occupancy, and availability of undeveloped land inside and outside of the floodplain. 2. To gather site-specific information on development and document potential floodplain management problems to assist in the review of the community’s permit and variance files. 3. To gather information on the accuracy and completeness of the community's effective FEMA maps. A tour of the floodplain should generally precede the meeting with local officials and the permit review. It may be necessary to tour certain floodplain areas of the community following the meeting to verify site-specific information obtained during the permit and variance file review. 5-1 FINAL DRAFT FEMA Manual 7810.4 b. Tour of the floodplain with the FPA. The floodplain locations visited during the tour will be guided by advance information obtained by reviewing community data during CAV preparation. If a community has provided digital records of floodplain permits issued since the last CAV, or in the past several years, combining these with your digital preparation files and .off-the-shelf. GPS program offer a tremendous advantage in identifying the most effective route to travel to determine how effectively the community implements its floodplain management requirements for new and existing development. However, should the number of site locations prove to be too extensive, visiting a sampling of properties for residential and non-residential buildings (new and improved) in each of the years since the last CAV (or last 5 years) is appropriate. When the FPA is included on the floodplain tour, his or her participation should be verified in the pre-CAV confirmation letter. A joint floodplain tour can open up helpful dialogue, provide first-hand field training, may help with access to private and community property, assist with local travel routes and traffic patterns, and garner a local perspective on floodplain development issues and future development pressures that may not surface in a formal meeting. Additionally, the FPA is often able to contact his/her office and gain immediate information on the sites being visited. At the end of a joint floodplain tour, the FPA will be better able to pull appropriate records for the meeting and will understand why the information is needed. If the FPA is not available to do a comprehensive floodplain tour, the FEMA or State NFIP representative should do the pre-CAV floodplain tour without the FPA. If the FPA was not on the floodplain tour and issues arise from the CAV meeting that require additional clarification, ask if a follow-up tour of specific problem sites is possible. c. Helpful equipment. Digital cameras, GPS units, laptop or tablet computers, DFIRM tools, and other supporting equipment should be used to help document the status of sites visited. GPS navigation systems that can be imported into a spreadsheet or database are particularly useful. The ability to show digital photos and precise map locations during the meeting with local officials is a major boost to communications. This digital data also becomes an essential part of the CAV report. d. Landowner/resident permission. When conducting a tour of the floodplain, expressed permission of the landowner or resident must be obtained before entering private property. This is often facilitated by touring with a local official in a community-owned vehicle. Otherwise, equipment brought for site documentation should be used from the street or other public right-of-way. e. Focus on problem sites. In smaller communities, it may be possible to tour the entire floodplain, but in larger communities with extensive floodplain areas and development, this may not be feasible. When a tour of the entire SFHA is not possible, emphasis should be placed on sites with known or suspected 5-2 FINAL DRAFT FEMA Manual 7810.4 problems and on sites and stream reaches noted during the preparation phase. Otherwise, in order to determine the effectiveness of a community’s floodplain management program, representative stream reaches should be inspected to provide sufficient examples of local floodplain management efforts. 5-3 The Floodplain Tour Check the community's SFHA from two standpoints: a. Floodplain Development. Development in the floodplain should be examined for impacts of local enforcement and compliance efforts. Sites in each mapped flood zone should be visited to ensure the community understands how to issue permits for each site. Floodplain areas that have not been developed should be noted for further discussion during the meeting, and evaluated in relation to the community's adopted comprehensive land use plans or approved development plans, if any exist. Adjacent areas to the SFHA should also be inspected for any floodplain impacts. b. Map Accuracy. Map accuracy issues should also be examined for impacts of local enforcement and compliance efforts. The following should be used as a guide when examining any development or map-related issues during the tour of the floodplain. A summary checklist of the items listed below is provided in Appendix C for quick reference during the actual floodplain tour. Floodplain Tour – Development in the Floodplain Floodplain development should be evaluated based on the level of the ordinance adopted by the community. The following items provide some examples: (1) In A-Zones (applies to new construction and substantial improvements) [44 CFR §60.3 (a) through (d)], verify that: . Residential structures have lowest floors (including basement) elevated to or above the BFE. . Non-residential structures are elevated or floodproofed to or above the BFE. . Structures with enclosures below the BFE are only used for parking, access, or limited storage. Where such enclosures exist, if possible, check for a minimum of two openings to equalize hydrostatic flood forces on exterior walls, and verify that the bottom of the openings are not more than 1 foot above grade. . Existing structures that have indications of substantial improvements show evidence of flood protection. NOTE: Additions to structures will likely be the most identifiable substantial improvement, whereas rehabilitations to structures will be more difficult to detect. Where available, use flood insurance claim data to identify possible substantially damaged structures. 5-3 FINAL DRAFT FEMA Manual 7810.4 . Structures that have electrical, heating, ventilation, plumbing, air-conditioning equipment, and other service facilities are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. . Manufactured homes, except in existing manufactured home parks or subdivisions, are located with the lowest floor at or above the BFE. Also check that manufactured homes are securely anchored to an adequate foundation system. (This may not be recognizable during the floodplain tour). . Manufactured homes in existing manufactured home parks or subdivisions are located with the lowest floor at or above the BFE or with the lowest floor 36 inches above grade. Also check that manufactured homes are securely anchored to an adequate foundation system. (This may not be recognizable during the floodplain tour). . There are no encroachments within the adopted regulatory floodway, including new construction or substantial improvements. Also check other development, such as mining, dredging, filling, grading, paving, excavation, drilling operations, or other structures (e.g., gas and liquid storage tanks). . There is adequate drainage in new subdivisions that decreases exposure to flood hazards. . FEMA was notified of any altered or relocated portion of a watercourse and that the flood-carrying capacity within the altered or relocated portion of any watercourse is maintained (i.e., there is no evidence of excessive vegetation growth and sedimentation in channelized and concrete lined channels). . There are adequate drainage paths around structures on slopes to guide floodwater around and away from structures in areas of shallow flooding. (2) In V-Zones (applies to new construction or substantial improvements) [44 CFR §60.3(e)], verify that: . Structures are elevated on pilings or columns so that the bottom of the lowest horizontal structural member of the lowest floor is at or above the BFE. . Manufactured homes (except in an existing manufactured home park or subdivision) are elevated on pilings or columns so that the bottom of the lowest horizontal structural member of the lowest floor is at or above the BFE. . The space below the lowest floor of an elevated structure appears to be free of obstructions or appears to have breakaway walls. Check the permit record to see whether breakaway walls are identified in the specifications and signed off on by an engineer. 5-4 FINAL DRAFT FEMA Manual 7810.4 . Structures with enclosures below the BFE are to only be used for parking, access, or limited storage. Photograph any walls of enclosures below the BFE and determine through the permit review whether they are designed as breakaway walls, if the building is post-FIRM. . Structures that have electrical, heating, ventilation, plumbing, air-conditioning equipment, and other service facilities are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. . Post-FIRM structures are located landward (not seaward) of mean high tide. . Fill is not used for structural support of buildings. . There is no alteration of sand dunes or mangrove stands. (3) Note vacant structures with boarded-up windows, tall grass, etc. Some of these structures, if rehabilitated, may become substantially improved and required to meet floodplain management requirements. (4) Review FEMA grant-acquisition projects by address for sites located in the community. The Acquisition rules requires that FEMA verify that the property shall be dedicated and maintained in perpetuity as open space for the conservation of natural floodplain functions (44 CFR §80.19). Include a sample of these properties with your other selected site visit properties to ensure that: . Use of the land acquired for open space purposes is consistent with the regulations under each mitigation program and the community's Land Use Reuse Plan for open space or recreational use. . If a new public facility is allowed, verify that the facility is open on all sides and functionally related to open space or recreational use and . Any public restroom or other structure compatible with open space use must be elevated/floodproofed to the BFE plus 1 foot of freeboard or greater if required by FEMA, or any state or local ordinance. . The open space property is maintained in good condition, and all debris or other improvements, such as any concrete slabs or foundations, which are not part of the reuse plan, were removed. (5) Review a sample of FEMA Flood Grant and NFIP Increased Cost of Compliance (ICC) for elevation projects to confirm that the selected buildings are still properly elevated and have not been compromised by enclosures below the BFE or other modifications. (6) Check maintenance of, or physical changes to, the floodplain, such as dams, diversion channels, detention basins, channelization, new bridges, or levees that resulted in, or may require, a Map Revision (44 CFR §65.6). 5-5 FINAL DRAFT FEMA Manual 7810.4 (7) If there are open CLOMRs in the community that have not been closed out by an approved LOMR, visit all or sample sites to assure that no encroachments or other violations have occurred. Any new development must meet the floodplain management requirements based on the SFHA boundaries and BFEs on the effective FIRM. In some cases, a CLOMR is used to improperly allow new development before the flood-control improvements to be done under the CLOMR have been completed and accredited by FEMA through an approved LOMR. If the project detailed in the CLOMR is in place, especially if it appears that it has not been constructed in accordance with the CLOMR specifications, make sure the CAV follow-up letter notifies the community that they must complete the LOMR within 180 days of the time the development was substantially complete [44 CFR §60.3(c) and 65.3]. If there is a floodway increase, then 44 CFR §60.3 (d)(4) and 65.12 apply. (8) For accredited levee systems, check for general maintenance of the levee system. For earthen levees, check for general conditions, such as grass cover which is manicured, animal burrows, noticeable erosion or gullies, clean watercourses, and flap gates free of debris. Note any closures and whether they are manual or automatic, structure crossings, such as railroads or roads through the levee, and mud on the landward side (signifying structural instability), among other observations. For floodwall­type levees, check for general conditions, such as a lack of noticeable cracks or settlement. Note: For the purpose of a CAV floodplain tour, this is expected to be a very limited non-engineering check of a sample of the most significant levees (in combination with other field work) to see if there are any obvious issues that should be brought to the attention of the FEMA Regional Office Engineer (44 CFR §65.10). (9) Sample selected structures for which a submit-to-rate flood insurance application has been submitted to FEMA. Map Accuracy Field Review Check the following sites, if identified during the preparation phase, where map accuracy appears to be in question. Additional sites may be identified during the floodplain tour. (1) New bridges or roads, or major modifications to existing ones, in a designated floodway or an area that would divert significant flood flows from the SFHA indicated on the effective FIRM. (2) Extensive filling or debris dumping, especially in the adopted regulated floodway, or in SFHAs where floodways have not been designated. (3) Major new developments, especially in the floodway or an area that would divert significant flood flows from the SFHA indicated on the effective FIRM. (4) New flood-control or related modifications, such as levees, berms, dikes, floodwalls, channel relocation, detention or retention ponds, concrete channels, hurricane protection levees, dams, reservoirs, etc. (5) Modified channels, to ensure the watercourse is free of debris, excessive vegetation, and sedimentation. 5-6 FINAL DRAFT FEMA Manual 7810.4 (6) Construction of low-water crossings. (7) Natural changes in the floodplain, such as flood--related channel relocation or modification, landslides, mudslides (i.e., mudflows), debris slides, significant erosion or sedimentation, significant vegetation or debris buildup, and other natural changes that clearly conflict with the SFHA on the effective FIRM. (8) If using contour maps or orthophoto maps, note any obvious discrepancies between the maps and the FIRM. (9) Identify areas suspected of posing special risks to life and property due to the depth, velocity and duration of flooding, debris in the water, or other factors. High flood hazards include: alluvial fans, areas behind unsafe or inadequate levees, areas below unsafe or inadequate dams, coastal erosion, flash flood areas, flooding due to ground failure, such as subsidence, fluctuating lake levels, ice jams, and mudslides. 5-4 Documentation of Potential Floodplain Development and Mapping Issues Structures and sites that are questionable floodplain developments that appear to be in violation must be documented during the floodplain tour, and followed up with local officials during the CAV meeting, to verify that proper floodplain management procedures were followed. Additional research may be needed at the State or FEMA Regional Office to verify Letter of Map Change (LOMC) or insurance rating information. Map accuracy issues should also be noted during the floodplain tour. This information should be discussed with local officials and used to verify the information in conjunction with review of the community's permit and variance files. Guidance for documenting the floodplain tour findings for both development-related issues and map-related issues is provided below. a. Documenting Development-Related Issues 1. Mark the development location on the affected flood map by address and GPS location. 2. Photograph all inspected structures on the tour. For at least each of the .problem. sites, including street view and rear-view angles of specific problem areas will prove helpful for later office review. 3. Estimate the lowest floor elevation of questionable structures in relation to the natural ground, or at least note that the structure may be below the BFE, and document the finding if there appears to be a violation. 4. Estimate whether proper openings are present and at the correct elevation above the ground for enclosed areas below the lowest floor, and document the finding if there appears to be a violation. 5. Record information (address/GPS location of development, nature of potential violation, etc.) on the sample Development Review Worksheet 5-7 FINAL DRAFT FEMA Manual 7810.4 form (Appendix D), digital spreadsheet, or other similar format that best meets your needs. Although other similar worksheets may be used to document questionable structures, the information contained in Appendix D should be obtained for each structure as a minimum. 6. If the community has designated floodways, does there appear to be any post–FIRM encroachments? If so, document the site and ask about it at the CAV meeting. b. Documenting Map-Related Issues The general requirements for technical and scientific data needed to substantiate Appeals and Map Revisions are similar. There are, however, procedural differences that determine the amount of data required and when the data may be submitted. The specific mechanisms for maintaining, updating, revising, and appealing these flood risk data are outlined in 44 CFR Parts 65, 70, and 72. These regulations establish the mechanisms by which individuals, State and local governments, and public and private organizations can work with FEMA to effect changes to flood hazard maps, and ensure that the best available data are applied for management of the Nation's flood-prone areas. During the tour of the floodplain, any map-related issues should be documented for discussion purposes with local officials, and findings should be included in the documentation portion of the CAV process. The findings on map-related issues should be forwarded to the FEMA Regional NFIP Engineer who will ensure that it is entered into the FEMA web-based geospatial database to document and prioritize floodplain mapping needs and requests. At a minimum, the following should be recorded: (1) The location of the site marked on the flood map; (2) The nature of the map-related issue and/or an estimate of the scope of the needed map revision; (3) The existence of any apparent violations; (4) A photograph of each problem at the site and a development site review form, if applicable, to address these issues; and (5) Data gathered from mapping/GIS tools that aid in demonstrating the deficiency. 5-5 Meeting with Local Officials The meeting with local officials will identify most of the community’s assistance needs and define any compliance problems and issues that need to be resolved to ensure that the community is achieving the flood-loss reduction objectives of the program. The CAV and this meeting have two basic purposes: to assess the community’s floodplain management program, and to provide technical assistance. This meeting is critical to developing a mutual trust in support of future FEMA/State relationships with the community. 5-8 FINAL DRAFT FEMA Manual 7810.4 A convenient checklist of these discussion points is provided in Appendix E for use during the meeting. Determine if there is a representative at the meeting from each community department that has a part in the permit process and for subdivision reviews. a. Introduction The following should be used as a guide to ensure that local officials understand the purpose of the meeting and what is to be accomplished. 1. Explain the purpose of the meeting. Introduce other members of the CAV team (other Federal or State personnel) and outline their role in the community visit, summarize the agenda, give an estimate of the meeting's duration, hand out an attendance list, and describe some of the preparation work, such as a tour of the floodplain and research of community flood history, to establish familiarity with the local situation. 2. Outline the program goals. Depending on the local officials' knowledge of the NFIP, provide a brief overview of the goals, objectives, and requirements of the program. Discuss the basic components of how the NFIP works, including non-structural means of flood damage reduction, and flood insurance availability to protect against financial loss. 3. Existing flood insurance statistics. Provide local officials with a printout or digital file of policies and claims (summary or by address, along with the appropriate Privacy Act Statement) and include or highlight additional community flood insurance information (e.g., number of flood insurance policies in force, dollar amount of coverage, number of flood insurance claims including Repetitive Loss, dollar amount of claims, etc.). A summary sheet from the FEMA CIS may be adequate for this purpose. Discuss characteristics of the flood insurance policy (where to purchase, policy term, examples of property covered, examples of property not covered, rate of coverage, and cases where flood insurance is required). Before any detailed discussion begins regarding the 4. Floodplain management procedures. community's floodplain Advise local officials that they will be management program, a brief asked to describe the procedures they overview of the purpose of the use to implement their floodplain meeting and summary of the management program, including the agenda should be provided. permit and inspection processes, subdivision reviews, floodway development reviews, variance process, etc. 5. File review. Confirm with local officials that permit, variance, and subdivision files will be reviewed after the meeting. 6. Questions. Address any questions from local officials that need immediate clarification before proceeding. 5-9 FINAL DRAFT FEMA Manual 7810.4 b. Floodplain Management Regulations Review 1. Determine whether the floodplain management regulations reviewed are the most current. If not, ask the community for a copy of the current adopted regulations. Keep in mind that the floodplain management regulations may be a standalone document, or included in more than one ordinance or code, such as a building code, zoning ordinance, subdivision regulations, health and safety codes, drainage codes, etc. 2. Discuss any inadequacies, omissions, or other problems identified during prior review of the regulations. 3. Ask for an explanation of anything in the regulations that appears to be unclear. Ask if local officials have any questions or problems concerning interpretation and administration of the regulations. 4. Determine if the community either has or intends to adopt the IBC or I-Codes. If the community has adopted the I-Codes, have they removed or modified any portions of the standard/standalone NFIP floodplain management ordinance? If parts of the standard ordinance have been removed, obtain a copy of the relevant sections of the I-Code used by the community to verify that all NFIP requirements are covered. The community may have the I-Codes plus the Companion Ordinance for Appendix G, the I-Codes plus an ordinance and appendices, or an alternate arrangement. 5. If, for reasons other than the I-Codes, the floodplain management regulations are segregated from other planning, zoning, subdivision, drainage regulations, or buildings codes, find out if any of the floodplain management requirements are referenced in these documents. Obtain and/or review copies of these documents to determine level of coordination and consistency with the NFIP requirements. Determine to what extent segregation of the community’s floodplain management regulations is affecting the community's ability to administer the NFIP. Request copies of any other regulations or plans that relate to the community's floodplain management program. 6. Determine whether the community has adopted the latest map and study. 7. Determine whether the community’s floodplain management regulations are more restrictive (e.g., freeboard), and if so, determine if the community has had any problems in implementing the more restrictive requirements. If this is a CRS community, you should discuss the activities they received credit for under higher regulatory standards. 8. In a community where the Federal Insurance Administrator has approved a community proposal to adopt standards for floodproofed residential basements below the BFE in Zones A, AR, AO, and AE, determine whether the community has adopted adequate floodplain management regulations for new construction and substantial improvements, and whether any such construction has occurred. 5-10 FINAL DRAFT FEMA Manual 7810.4 9. For communities with unique high-hazard flood areas (e.g., alluvial fans, subsidence, erosion), review ordinances for special construction standards and/or other regulations that address these hazards. If appropriate, ask if the community needs assistance in updating or revising the current floodplain management regulations. Discuss a schedule for accomplishing this requirement. 10. Determine if the boundaries of the community have been modified by annexation, incorporation or disincorporation, or if the community has otherwise assumed or no longer has authority to adopt and enforce floodplain management regulations for a particular area. If so, obtain either a digital version of the map, or a paper map of the community suitable for reproduction, and if available, the annexation ordinance delineating the new corporate limits or new area for which the community has assumed or relinquished floodplain management regulatory authority. c. Map Availability and Accuracy 1. Determine whether the FIRM and FIS report in use by the community are the most current. If they are using paper FIRMs, ask where these are kept and if they are available to the public. If they are using the DFIRM, ask how they are making the maps available to the public. If a restudy is underway, discuss with the community the status of the study, when to expect a preliminary map, when to expect a final meeting, and when the community is expected to update its regulations to adopt the FEMA maps and FIS. Remind the community that it must, at a minimum, continue to regulate floodplain development consistent with the current maps and FIS until the appeals period is over and the new maps and FIS are in effect. However, if BFEs are going up and/or floodplains are widening, this is an opportunity for the community to consider a higher standard, such as freeboard, to protect new development in the interim. 2. Ask whether other maps or studies are being used for regulating development in the SFHA. Point out the community’s ability under the NFIP to use more restrictive requirements than those shown on the FIRM (such as a higher BFE and elevation requirement), but that they cannot use less restrictive requirements than those on the effective FIRM. If other maps and studies appear to have an impact on the effective BFEs, or if the community has developed BFEs in areas where BFEs have not been determined, obtain a copy of the maps or studies. 3. Determine whether local officials have any problems with using the maps, FIS report, or DFIRM tools. Ask them to describe how they present the FEMA maps to permit applicants and to the public. (If necessary, work through a sample floodplain and/or elevation determination, or demonstrate use of the DFIRM tools and advise them of any additional DFIRM training that may be available). 5-11 FINAL DRAFT FEMA Manual 7810.4 4. Inquire whether local officials have any problems with the accuracy or completeness of the maps or FIS. Record the areas in question and the nature of the problems (e.g., an error in the original map or physical changes that have occurred since the effective date of the map or study). If information appears to support the need for map changes or justifies further review, determine whether local officials have available technical data to assist in making any changes. Communities are responsible for notifying FEMA of physical changes affecting flooding conditions by submitting technical and scientific data in accordance with 44 CFR §65.3 and 65.4. Activities most likely to cause such changes include fill, watercourse modifications, flood-control projects, bridges, culverts, levees, floodwalls, etc. Ask what level of coordination the community has with the State Department of Transportation. 5. Inquire whether the community has experienced any recent flooding and ask to briefly describe the extent (source and location) and damage (e.g., were there any structures that were substantially damaged or in areas not designated as an SFHA?). If so, what was the general cause (e.g., stormwater/drainage problems, an event greater than the 100-year frequency flood, failure of a flood-control project, the design standards for the project were exceeded, inaccuracies in the mapping or hydrology/hydraulics)? 6. For mapped areas protected by an accredited levee system or for other flood protection works, such as dams, retention basins, diversions, and channelization projects, determine whether the community is aware of its maintenance responsibilities and whether such maintenance is documented. Where problems are noted, determine whether the community performs the necessary follow-up to correct the problems (44 CFR §65.10). 7. Inquire whether any structural flood-control projects are planned, under construction, or have been otherwise completed since the date of the last CAC or CAV. Inquire as to the name of the agency that assisted in implementing the structural measures and what the current operation and maintenance procedures are. Determine the effectiveness of the structures in reducing flood damage potential and whether the structure has been tested in an actual flood event. 8. Has the community identified any unique high hazard flood area (e.g., uncertain flow paths, subsidence, ice jams, or coastal erosion)? Determine whether the community is having problems in regulating development in these areas. 5-12 FINAL DRAFT FEMA Manual 7810.4 9. Determine how familiar local officials are with the process for appeals, revisions, and amendments to flood maps. Determine whether the community has a system to log and retrieve LOMAs, LOMRs, CLOMAs, and CLOMRs. Ask local officials to describe what limitations on development exist during the period between when a CLOMR has been issued but before the LOMR for that project becomes effective. 10. Discuss any map-related issues that For LOMRs and CLOMRs were raised by the CAV preparation based on fill, inquire whether review or during the floodplain tour. the local official understands that his or her signature affirms d. Development Review Process that the project has been determined as reasonably safe This portion of the meeting should from flooding, and that there is include a discussion of the community's documentation supporting the floodplain development review process review. from the time a development permit is requested through the time the Certificate of Occupancy or equivalent acceptance is issued. Community enforcement procedures that support the implementation of the floodplain management ordinance should also be addressed. It is critically important to help community officials understand the difference between a .deficiency. in their regulations, procedures, or checklists versus a floodplain management violation that may result from a deficiency. Both types of problems must be identified as part of the CAV process and corrected by the community. The following list should be used as a guide to ensure that all aspects of the development review process are covered. For each aspect, determine who is involved, his or her role, how coordination is achieved between different community departments responsible for various aspects of the development review process, and whether any forms or written procedures exist. 1. Ask local officials to describe what the development review procedure is for new construction and for any rehabilitation, addition, or other improvement of an existing structure, particularly those that qualify as substantial improvement. 2. Ask local officials if they understand the concept of substantial damage under the NFIP. Have them describe their process for determining substantial damage, their experience in making these determinations, any issues encountered, and specifically, their role in initiating ICC coverage. 3. Ask local officials what the review procedure is for development other than structures, such as mining, dredging, filling, grading, paving, excavation, or drilling operations. 4. Ask the FPA what review procedure is used to ensure that all necessary permits required by Federal or State law have been received from the responsible governmental agency, including Section 404 of the Clean 5-13 FINAL DRAFT FEMA Manual 7810.4 Water Act, Section 10 of the Rivers and Harbors Appropriation Act, and Sections 9 and 10 of the Endangered Species Act [44 CFR §60.3(a)(2)]. 5. Ask local officials what procedure is used for the following: (a) Obtaining the lowest floor elevation in all SFHAs where BFEs are used [44 CFR §60.3(b)(5)], and (b) Obtaining the elevation of the bottom of the lowest horizontal structural member of the lowest floor in all V-Zones [44 CFR §60.3(e)(2)]. 6. Ask local officials what procedure is used to secure certifications for the following: (a) Floodproofed, non-residential structures [44 CFR §60.3(c)(4)]; (b) Openings for fully enclosed areas below the lowest floor subject to flooding when the design differs from minimum NFIP criteria [44 CFR §60.3(c)(5)]; (c) Anchoring of a pile-and-column foundation and structure attached thereto in all V-Zones [44 CFR §60.3(e)(4)]; and (d) Breakaway walls in all V-Zones when design strength exceeds minimum NFIP criteria [44 CFR §60.3(e)(5)]. 7. Determine the community’s procedures for ensuring that all new construction and substantial improvements are designed (or modified) and adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, and if constructed with materials resistant to flood damage [44 CFR §60.3(a)(3)]. 8. Ask to see the process that local officials use to ensure that buildings constructed with electrical, heating, ventilation, plumbing, air-conditioning equipment, and other service facilities are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding [44 CFR §60.3(a)(3)(iv)]. While this usually means elevation, evidence of waterproofing can be an alternative. Heating and air conditioning units installed at ground level are a common violation. 9. Ask local officials if they have an understanding of the floodway concept. If they do, ask what process is used to determine the following: 5-14 FINAL DRAFT FEMA Manual 7810.4 (a) Cumulative floodplain development will not increase the water-surface elevation of the base flood more than 1 foot in Zones A1-30 and AE where floodways have not been designated [44 CFR §60.3(c)(10)]; and (b) Floodway encroachments that would not result in any increase in the flood levels within the community during the occurrence of the base flood discharge in SFHAs where floodways have been designated [44 CFR §60.3(d)(3)]. 10. If there appear to be floodway encroachments that were identified on the floodplain tour and they may have caused increases greater than allowed under (8) above, did the community obtain a CLOMR under the provisions of 44 CFR §60.3(d)(4) and 65.12 before construction began, and follow that with a LOMR when the project was completed? At the CAV meeting, ask whether the community has documentation showing that it has prohibited floodway encroachments unless it was demonstrated through a hydrologic and hydraulic analysis that there would be no increase in flood level during the base flood discharge [44 CFR §60.3(d)(3)]. If the community does not have staff who can professionally evaluate a hydrologic and hydraulic analysis showing no rise in a floodway, does the community understand that it can request technical assistance from FEMA to determine if the analysis is adequate? 11. Based on the information gathered during the floodplain tour, determine if LOMRs have been requested, or are planned within 180 days, for development where it appears physical changes have occurred that may have increased or decreased BFEs in the community (44 CFR §65.3). 12. Does the community have any SFHAs with BFEs, but with no regulatory floodway designated? Has there been any construction, development, or fill in any of those SFHAs? If so, does the community have a formal system in place to monitor the cumulative increase in BFE for each of those SFHAs to meet the intent of 44 CFR §60.3(c)(10)? In any such A-Zone, has there been a case where, when combined with all existing and anticipated development, the cumulative increase in the surface elevation of the base flood would be increased by more than 1 foot? Does the community have a record of a CLOMR for the project in accord with 44 CFR §65.12 and did they follow that with a LOMR when the project was completed [44 CFR §60.3(c)(13)]? 13. In communities with A-Zones without BFEs: Find out whether local officials are requiring flood damage protection measures, such as elevation, anchoring, and use of proper flood damage resistant construction materials. How are they developing estimated BFEs to regulate new development? Are they requiring the development of BFE data for subdivisions of greater than 50 lots or five acres and reasonably using available data to determine flood elevations [44 CFR §60.3(b)(3)]? 5-15 FINAL DRAFT FEMA Manual 7810.4 14. Ask about the variance process. If there have been any variances granted, evaluate them as part of the permit-review segment of the CAV process. 15. Have the local officials describe the process used to review subdivision proposals [44 CFR §60.3(a)(4)]. Find out what flood-related issues are reviewed. Find out how many subdivisions have been approved in the floodplain since the date of the last CAC or CAV, and the estimated number of lots within the approved subdivisions. Find out whether subdivisions adjacent to the SFHA are reviewed for their impact on flooding. 16. Have local officials describe the process used to review capital improvements, such as public buildings, streets, bridges, utilities, parks, etc., which are located in the SFHA. Determine if the community has any major capital improvements planned which may impact the SFHA. 17. In a community where the Federal Insurance Administrator has approved a community proposal to adopt standards for floodproofed residential basements below the BFE in Zones A, AR, AO, and AE, determine what the procedures are for inspecting and verifying that residential structures with floodproofed basements are built according to the certified basement design [44 CFR §60.6(c)]. 18. Have local officials describe the process for inspecting development permitted under the floodplain management regulations. For instance, how often do they inspect for proper floor elevations, openings, mechanical and electrical, and other points during construction? Also, determine if the community has an ongoing inspection program to discover unpermitted development. 19. Have local officials describe the formal enforcement procedures and actions the community can take to remedy building and development violations. Inquire as to actions currently being taken to remedy violations. e. NFIP Community Information Review and Verification Verify with local officials the community data from the CIS. In particular, the following data should be reviewed and/or verified if not already discussed: 1. The number of policies in force and the number of flood insurance claims paid, especially repetitive loss claims, and any related substantial damage issues. Ask if community officials understand the ICC process and Mitigation Grant Programs that may help reduce future flood damages. 2. Any other relevant data contained in the CIS including names, addresses, phone numbers, e-mail address of the CEO, and community contacts. 5-16 FINAL DRAFT FEMA Manual 7810.4 f. Floodplain Development Issues Identified on the Floodplain Tour Discuss floodplain development issues identified by the CAV preparation and the floodplain tour. Use digital photos and GPS/annotated maps to help present these issues. g. Other Floodplain Management Issues 1. Determine the potential for future floodplain development and to what extent the community encourages or discourages development. For example, based on the discussion with local officials, determine the community's attitude toward growth (e.g., the community works to site and protect floodplain development from flooding or discourages certain types of development altogether). 2. How does the community address flood threats to existing development and specifically, repetitive flood losses, if applicable? What is the status of any existing FEMA flood mitigation projects in the community, including acquisitions, relocations, elevations, or flood-control projects? Ask if future flood mitigation projects are identified in the community mitigation plan, and/or if there is interest in Mitigation Grant Programs, and provide Grant contact & outreach materials. 3. Discuss any higher floodplain management standards the community may currently be using and provide information on recommended higher standards that the community can consider. Include a discussion of the CRS Program. 4. Discuss whether the community has a post-disaster plan in place, and if they have any other issues related to flood disasters or post-flood mitigation efforts. h. Questions and Answers Address any questions or concerns the community may have regarding its floodplain management program or aspects of the NFIP before going on to the permit and variance file review step. 5-6 An Examination of the Floodplain Development Permit and Variance Files A review of the community's floodplain development files, specifically its floodplain management development permits (building permit, zoning permit, subdivision files and variance files) is an excellent means of assessing the effectiveness of the community’s floodplain management program. Make a point of examining several floodplain permit files for each year since the last CAV (or at least three to five years previous) to detect any significant variations in the proper documentation of the files that may warrant further investigation. For each questionable structure or development, use the previously discussed NFIP Floodplain Development Review Worksheet (Appendix D) or 5-17 FINAL DRAFT FEMA Manual 7810.4 similar worksheet to document information found in the community files and to verify the information against the floodplain tour information. In reviewing these files, the following issues should be addressed and documented: 1) Does the community maintain permit and variance files? 2) Do the files support the local official’s description of the development process and what was discovered during the floodplain tour? 3) How accessible are the permit and variance files? 4) How complete is the information contained in the files? a. Are the BFE and the required elevation of the lowest floor for a residential or non-residential structure or the floodproofed elevation for a non-residential structure properly identified in the permit application? If a CRS community, does this information appear on the Elevation Certificate since the date of initial CRS participation? b. Is a record of the following information maintained by the community? Ask local officials to what extent the public, such as insurance agents, has sought information on the following data: 1. Lowest floor elevation in all A-Zones where BFEs are used. 2. Elevation of the bottom of the lowest horizontal structural member of the lowest floor in all V-Zones. c. Are certifications by an architect or engineer on file for the following? 1. Floodproofed non-residential structures in A-Zones where BFEs are used. 2. Openings for fully enclosed areas below the lowest floor subject to flooding when the design differs from minimum NFIP criteria. 3. Anchoring of a pile-and-column foundation and structure attached thereto in all V-Zones. 4. Breakaway walls in all V-Zones, when design strength exceeds minimum NFIP criteria. d. Is there documentation that the community is maintaining a cumulative record of past and proposed floodplain development within Zones A1-30 and AE on the community's FIRM to ensure that proposed development will not increase the water-surface elevation of the base flood more than 1 foot in SFHAs where floodways have not been designated [44 CFR §60.3(c)(10)]? 5-18 FINAL DRAFT FEMA Manual 7810.4 e. Is there documentation that demonstrates through hydrologic and hydraulic analyses that the floodway encroachment would not result in any increase in the flood levels within the community during the occurrence of the base flood discharge, in communities where floodways have been designated? f. Is there documentation that flood damage protection measures are being required for development in A-Zones without BFEs? g. Communities must require developers of new subdivisions and other developments (including proposals for manufactured home parks and subdivisions) larger than 50 lots or five acres in A-Zones without BFEs to provide BFEs as a condition for approval. Does the community have records in the subdivision files that indicate this requirement has been implemented and BFEs have been used to require elevations per 44 CFR §60.3(b)(4)? h. In a community in which the Federal Insurance Administrator has approved a community proposal to adopt standards for floodproofed residential basements below the BFE in Zones A, AH, AO, and AE, do the permit files indicate that the community inspects and verifies that residential structures with floodproofed basements are built according to the certified basement design? i. Are variance justifications available and do they appear adequate? Was each affected property owner notified of the effect of the variance on flood insurance rates? j. Is there a record indicating that the community has inspected floodplain development during or after construction to ensure that the project is built according to the approved plans? k. Do the permit files contain any records showing that all necessary permits required by Federal and/or State law have been received from the responsible governmental agency, including Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Appropriation Act, and Sections 9 and 10 of the Endangered Species Act [44 CFR §60.3(a)(2)], or confirming letters from agencies citing that approvals are not needed? l. To ensure all information has been collected, check for the following after the permit file review: 1. Necessary documentation, photographs, etc., have been collected; 2. Sites have been visited, or determination made as to whether a site needs to be checked or rechecked in the field; and 3. Appropriate local officials have been interviewed. 5-19 FINAL DRAFT FEMA Manual 7810.4 5-7 Summary Meeting with Local Officials a. Summarize the Findings Local officials should be given a verbal summary of the preliminary findings based on the tour of the floodplain, discussion of the community's floodplain management program, and review of the development permit files. The strengths and weaknesses of the community's floodplain management program should be discussed. b. Offer Technical Assistance Provide technical assistance to resolve issues that need immediate attention or do not require much time to resolve (e.g., suggestions for minor changes in the community's permit procedure, instructions for filling out an Elevation Certificate, suggestions for a community flood awareness program). Any deficiencies that require extensive time to correct (e.g., the amendment of the floodplain management regulations, the community has a pattern of widespread program deficiencies or violations) should be documented in a follow-up letter. Use this opportunity to recommend training opportunities for the FPA and/or other support staff. Completion of such training may be selected as one of the corrective action items for the community. The timeframe for providing follow-up technical assistance and for the community to resolve any program deficiencies or violations should be discussed. The community should be informed that a follow-up letter summarizing the findings of the community visit will be sent to the community CEO, along with any appropriate follow-up actions and timeframes. c. Address CRS Options If warranted by the CAV findings to this point, discuss the possibilities of either joining the CRS or upgrading an existing CRS classification. If the community appears to be a good CRS candidate, you should compliment local officials on their best management practices and activities that may qualify for the CRS. Provide them with the CIS .What-If CRS Report. showing projected policy savings for Classes 1–9 specific to the community. d. Be Complimentary and Answer Questions There are always positive aspects of every program, many of which can be used as examples in other CAVs and training. Be sure to compliment the officials on good practices. Provide another opportunity to address any questions or concerns the community may have regarding its floodplain management program or aspects of the NFIP before ending the community visit. 5-20 FINAL DRAFT FEMA Manual 7810.4 5-8 Specialty CAVs Over the years, several types of .specialty CAVs. have been developed by various States and FEMA Regional Offices to address specific situations. The basic CAV process and format does not change, but the way the CAV is staffed or directed may be adjusted for a given situation. Brief descriptions of some of these specialty CAVs are given below. a. Team CAV The Team CAV or Group CAV is typically done for a large, densely populated city or county where one person could simply not accomplish and document an adequate floodplain tour in a reasonable amount of time. The Team CAV may consist of FEMA staff, State staff, and contractors. The team must be well organized and be consistent in its approach and documentation procedures so findings can be quickly assembled for the CAV report and meeting with local officials. The team members are given specific assignments, and typically a grid system is used to make sure the SFHA is covered efficiently. The team members may do their floodplain tour individually or in pairs, often accompanied by a local official. Typically, all team members will meet at the end of each day to compare notes and analyze their findings. In some cases, members of the Team CAV may also be used to review the community permit files if the team leader determines that level of assistance is required. Only the CAV team leader and one or two team members will attend the community meeting to avoid overwhelming local officials. While a Team CAV is more labor intensive than a standard CAV, the format for the community meeting and the CAV report are basically the same. The key difference is that a larger number of questions and findings can be expected due to the extensive floodplain development that triggered the decision to do this community visit as a Team CAV. b. State CAV The State CAV, or more often the State Agency CAV, can be done for one or more State agencies. Because the State participates in the NFIP, any development that is permitted by the State must be done in accordance with the minimum floodplain management standards of the NFIP. State development and State-owned property are eligible for various types of Federal financial assistance, and are also eligible for disaster assistance if the development process meets NFIP standards. State CAVs are led by a FEMA Regional Office staff person since only this person can present the corrective actions State agencies must take. The person leading the State CAV will request the legal basis (Governor’s Executive Order, State legislation, etc.) for that particular State’s equivalent of a floodplain management ordinance, along with the administrative processes for enforcement. In many cases, a State may implement floodplain management requirements contained in an ordinance or State Building Code 5-21 FINAL DRAFT FEMA Manual 7810.4 through an Executive Order. While the State agency for floodplain permitting and oversight may be an agency, such as the State Finance or Administrative Office, often there are exemptions provided to other State agencies, including the Department of Transportation (roads and bridges), Department of Education (schools, community, and State colleges), the State Architect (hospitals and other State-developed or owned facilities), Bureau of Prisons, etc., that lead to complicated reviews. The Office of the NFIP State Coordinator, while providing key contact, coordination, and assistance, is seldom responsible for permitting State buildings in the SFHA. The need for a State CAV is often triggered by a series of findings from the standard city and county CAVs that certain types of State development and facilities in those communities may not be meeting the minimum standards of the NFIP. Given the size and complexities of reviewing an entire State, careful planning is required. For instance, usually one State agency is responsible for permitting most State-owned buildings, or at least seeing that insurance is maintained for them. Exceptions, as mentioned earlier, vary by State and must be researched. Inventories of all State-owned buildings must be obtained before any field work is started. The following are a few unique Advance Planning Reminders (that differ from a typical CAV) to consider before FEMA Regional Office Staff conduct a State CAV: Begin planning for a State CAV one year in advance. The NFIP State Coordinator is a key ally for coordination and assistance – ask this person to help research State Executive Orders, ordinances, and if not already done, to sponsor quarterly meetings with all State agencies that handle floodplain-management responsibilities for State buildings. Plan to attend at least the kickoff meeting. Once the lead State-permitting agency is established, hold an introductory meeting to explain the process and the coordination help you will need over the coming months. Request a digital inventory of all State-owned buildings with an appropriate breakdown by type, age, flood zone, etc. Contact FEMA HQ underwriting to request a list of .State-owned. insured buildings, and ask for a breakdown by Submit to Rate, repetitive loss, suspected substantially damaged, ICC, and other fields per CAV preparation in Chapter 4. Floodplain Tour Planning – due to the size of most States, it will save time to analyze the State inventory, DFIRM data, and insurance information to develop a manageable plan to sample buildings Statewide for the floodplain tour. Plan several trips to complete the floodplain tour based on your sample, or use a Team CAV approach. Coordinate with FEMA HQ’s Floodplain Management Branch, which can offer support, technical assistance, and serve as liaison with other FEMA HQ resources. 5-22 FINAL DRAFT FEMA Manual 7810.4 c. Tribal CAV A key aspect of a Tribal CAV is that each tribe has its own unique form of self-governance that may bear little resemblance to the types of county and city governments that FEMA staff commonly work with. In recognition of the sovereign government-to-government direct relationship between Federally Recognized Tribal Governments and the Federal Government, Tribal CAVs must only be led by FEMA Regional Office staff. FEMA staff conducting Tribal CAVs should coordinate with the designated FEMA Regional Office .Tribal Liaison. and other staff to see if they have worked with the tribe recently and can provide advice on points of contact, organization, and customs. The basic elements of the CAV process do not change, but the success of a Tribal CAV will depend on understanding the tribal organization, their customs and practices in managing development issues, and how they choose to coordinate with the Federal Government. You may find that additional time is necessary for NFIP training and technical assistance if previous contacts have been infrequent. Anyone planning to visit a Tribal Government should take the EMI Independent Study Class, IS­ 650, .Building Partnerships with Tribal Governments.. 5-23 FINAL DRAFT FEMA Manual 7810.4 Chapter 6 -Community Assistance Visit: Documentation 6-1 General The amount of detail, specificity, and supportive documentation needed is based on the complexity of the issues and problems identified during the community visit. Many problems may be resolved through technical assistance efforts. However, in cases where commencement of an enforcement action is necessary (such as retrograding CRS participation, imposing probation, suspending a community from the NFIP, denying insurance to a structure under Section 1316 of the National Flood Insurance Act, or other enforcement options), detailed, accurate, and comprehensive documentation of program deficiencies and violations is required. Documentation consists of (a) entering the CAV findings in the CIS, with supporting documentation; (b) the letter to the CEO of the community -regarding the findings of the visit, and (c) any follow-up correspondence with the community. 6-2 Community Assistance Visit Findings The findings of the CAV shall be entered in the CIS to enable FEMA’s evaluation of individual community floodplain management programs, as well as its evaluation of the NFIP. It is essential that the CAV findings contain adequate comments to document the types of program deficiencies and suspected violations identified and the assistance provided to the community. The documentation in the CIS also serves as a tool for advancing the visit through the assessment and assistance processes by ensuring that the necessary follow-up actions required by the community are -completed in a timely manner. Additionally, this documentation is necessary to establish a basis for enforcement actions. The CAV Report should not During the CAV, suspected deficiencies and be completed during the violations in community floodplain management contact with local officials or regulations or implementation procedures may be provided to local officials to identified. Causes of suspected violations may complete. It should be include a deficiency in an ordinance or completed online using the implementation procedure, local officials not CIS. following their own regulations and implementation procedures, or property owners ignoring the floodplain management requirements established by the permit. Therefore, an essential part of a CAV is to track down the actual cause of any suspected deficiency or violation to identify appropriate corrective actions and prevent future violations. The CAV findings in the CIS indicate whether floodplain management program deficiencies have been identified. For each floodplain management program category (Floodplain Management Regulations, Administrative and Enforcement Process and Procedures, Engineering: Flood Maps and Study, other), indicate whether the program deficiency is serious, minor, or non-existent. The following guidance is provided for completing this section of the CAV Report in the CIS. 6-1 FINAL DRAFT FEMA Manual 7810.4 a. Floodplain Management Regulations 1. Serious. Serious program deficiencies in the community’s floodplain management regulations are defined as those not compliant with NFIP floodplain management criteria, or those that do not contain adequate enforcement provisions, or those which cannot be enforced through other mechanisms. Such deficiencies could result in the community's suspension For example, the community’s land-use policies and procedures, such as local zoning requirements that conflict with local floodplain management regulations. 2. Minor. Minor program deficiencies in the community's floodplain management regulations are those that need to be corrected, but that have not impeded the community's ability to enforce the NFIP floodplain management provisions, or are not critical to the effective implementation of the regulations. For example, the community has adopted one or more of the I-Codes (International Building Code, International Residential Codes, etc.) and also has a standalone floodplain management ordinance where provisions or definitions conflict with the building standards in the adopted building code. 3. None. None indicates that the community's floodplain management regulations are compliant. b. Administrative and Enforcement Process and Procedures 1. Serious. Serious program deficiencies in a community's administrative and enforcement process and procedures are those that have resulted or could result in substantive violations that increase potential flood damages or stages in the community. Examples of such substantive violations include the following: obstructions to floodways or stream channels that increase the base flood elevation, residential structures that are located with the lowest floor below the BFE, non-residential structures with the lowest floor below the BFE that are not properly floodproofed, and structures in V-Zones with non-breakaway walls below the BFE. Additional examples are: (a) Failure to require permits for proposed construction or other development within floodprone areas and/or failure to review such permit applications and subdivision proposals to ensure that all such construction and development is adequately designed, located, constructed, and anchored to minimize flood damage. (b) Failure to obtain and reasonably use any available flood data as criteria for setting local elevation and floodproofing requirements. (c) Administrative procedures and practices that are not workable or cannot reasonably ensure compliance with the local ordinance (e.g., the community does not inspect structures for compliance and does not record .as-built. elevation data). 6-2 FINAL DRAFT FEMA Manual 7810.4 (d) Variance procedures or variances granted that are not consistent with NFIP variance criteria. 2. Minor. Minor program deficiencies in a community's administrative and enforcement process and procedures are those that are easily corrected and have not resulted in multiple or substantive violations or increased exposure to flood losses. Minor program deficiencies generally involve some type of mitigating factor and can be resolved within a relatively short period of time through the provision of technical assistance. The community should take positive actions to resolve past problems and determine whether the problems are considered minor. Examples of minor program deficiencies include: (a) Permit or variance records are not organized or easily accessible; (b) The BFE is not indicated on the permit; and (c) The community is unfamiliar with certain NFIP requirements (e.g., floodway encroachments, notifying property owners of the effect a variance may have on flood insurance rates), but no specific violations resulted from the community's lack of knowledge and unfamiliarity with the requirements. 3. None. None indicates no problems were identified. c. Engineering: Flood Maps and Study 1. Serious. Serious problems with the community's flood maps or study impact the entire community and involve major changes in the floodway or adjustments to the BFE that can be remedied by a restudy, or the issue involves a boundary change that includes significant additional SFHAs. Serious problems with a community’s flood map or study generally need immediate action for a map revision. Identify, document, and summarize the problems in the CAV report by location and forward to the appropriate FEMA Regional Office Engineer for follow-up action. 2. Minor. Minor problems with a community's flood maps or study are those that affect only one or two FIRM panels or one flooding source and can be remedied by the LOMR or Physical Map Revision process. Minor problems with a community's flood map or study can generally be resolved with the next comprehensive restudy or revision. 3. None. None indicates no problems were identified. d. Other Problems or Issues not included in the Regulations, Administrative, or Engineering Categories 1. Serious. Serious problems are actions being taken by the community that are inconsistent with, or cannot reasonably ensure compliance with, local floodplain management regulations. For example, a CLOMR is issued 6-3 FINAL DRAFT FEMA Manual 7810.4 based on a proposed project that will remove a portion of the effective SFHA to outside the SFHA. The community begins allowing at-grade development in the area before the project is either finished or the .as­built. condition is submitted for a LOMR to officially remove the area from the SFHA. [44 CFR §60.3(c), 65.3]. 2. Minor. Minor problems are actions being taken by the community that need to be corrected, but that have not impeded the community’s ability to enforce the NFIP floodplain management provisions, nor are critical to the effective implementation of the regulations. 3. None. None indicates no problems were identified. e. States conducting CAVs on behalf of FEMA must enter the CAV findings into the CIS within 15 days from the date of the CAV and provide any supporting documentation to the FEMA Regional Office within 30 days from the date of the CAV. The CAV becomes part of the community’s permanent record maintained in the CIS and the NFIP community files at the FEMA Regional Office. f. Copies of documentation that supports the CAV findings (e.g., any NFIP-Floodplain Development Review Forms or similar, the community's development permit form and review procedures, examples of floodplain development permits or variances granted, other documents related to the community's development review process, other maps or studies used to regulate floodplain development, Elevation Certificates, and other certifications) should be included in the community file. In addition, the following information should be included with the community file and/or in the CIS: Community contacts, The list of attendees, A copy of the corrected Biennial Report, Current floodplain management regulations, if different than the copy reviewed, and A letter to the CEO informing the community of the findings of the visit and any follow-up correspondence with the community. 6-4 FINAL DRAFT FEMA Manual 7810.4 6-3 Letter to the Community CEO The initial follow-up letter is the official method of informing the community of the CAV findings. While there is no specified format, most States and FEMA Regional Offices rely on a cover memo with an attachment detailing program deficiencies and possible violations identified as part of the CAV. The follow-up letter should be sent to the CEO, with a copy to the local official responsible for implementing NFIP floodplain management regulations, within 30 working days from the date of the CAV. If there is more than one office implementing floodplain management in the community, send a copy to those office(s). For States conducting CAVs on behalf of FEMA, a copy of the follow-up letter should be sent to the FEMA Regional Office within 30 days from the date of the CAV. If one or more substantive program deficiencies or possible violations are identified, the follow-up letter should be sent via certified mail to the CEO. A substantive program deficiency or violation is one that has resulted or could result in increased potential flood damages or flood stages in the community. If no particular problems are identified, or if program deficiencies are relatively minor (e.g., there is no history of prior violations and the community has indicated a willingness to take positive actions to resolve the issues or problems, or only a single program deficiency has occurred), the follow-up letter to the CEO would not have to be sent via certified mail. When one or more substantive program deficiencies or suspected violations are identified, States conducting CAVs on behalf of FEMA should coordinate with the FEMA Regional Office before the letter is sent to the The amount of information CEO. In most instances, the State should in the initial follow-up letter prepare and send the follow-up letter to the to the CEO will depend on community. When major compliance problems the findings of the CAV and are found during the CAV, States may prepare a the type of technical brief letter to the community informing it of the assistance needed by the intent to notify FEMA of the findings, and that community. FEMA will be contacting the community. This type of follow-up letter to the community must receive prior approval from the FEMA Regional Office. Sufficient detail should be provided in the follow-up letter so that the actions required by the community to correct any program deficiencies and possible violations are easily understandable. The follow-up letter should be very positive, thanking the community for its help, and offering assistance in the event the community has a particular flood-related problem or question about the NFIP. If no particular problems are identified in the community, and the community appears to be doing a good job in administering the NFIP and is implementing higher standards, the community should be complimented for its efforts and recommended for the CRS. It is important to make this recommendation as soon as possible, and note this in the CIS to provide appropriate CRS coordination and follow-up. Participating CRS communities must always be in full compliance with the minimum NFIP requirements. If a CRS-participating community is identified with program deficiencies or suspected violations, it is expected to expeditiously correct program 6-5 FINAL DRAFT FEMA Manual 7810.4 deficiencies and remedy violations to the maximum extent possible or face retrograde out of the CRS as the first step of compliance sanctions. Please refer to Appendix F and Chapter 7 of this manual for more detail regarding CRS community retrogrades. The initial follow-up letter to the community will contain the CAV findings. When suspected violations are found, you must provide the community with specific deadlines to submit documentation (e.g., as-built elevation data if the lowest floor appears below the BFE). Experience has shown that these examples are commonly encountered and your initial follow-up letter will need to address each situation. It is important that this initial letter bring to the CEO’s attention all of the issues he/she will have to resolve without delay. Deferring citations of suspected violations until future follow-up letters will only send the CEO a mixed message. Where program deficiencies and possible violations are identified, the following checklist should be used as a guide in developing the follow-up letter to the CEO: a. Restate the date of the CAV and its purpose, and include the names of the participants. b. Include an assessment of the CAV findings, detailing specific program deficiencies and/or possible violations, if any, and the community’s background history. c. List the required corrective actions, including preventative measures and procedural changes by the community (e.g., begin requiring permits for fill, revise the permit application form to include the posting of the BFE, revise the floodplain management regulations to incorporate NFIP regulatory changes). Also indicate the need for additional supporting data (e.g., a copy of the revised permit application form, lowest floor elevations, etc.). A structure or other development is presumed to be in violation until the following documentation is provided: 1. Evidence that buildings constructed with electrical, heating, ventilation, plumbing, air-conditioning equipment, and other service facilities are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding [44 CFR §60.3(a)(3)(iv)]; 2. The lowest floor elevation of structures in A-Zones when BFEs are used [44 CFR §60.3(c)(2) and (3)]; 3. Evidence of certification of floodproofed non-residential structures [44 CFR §60.3(c)(4)]; 4. Evidence that openings meet the minimum openings criteria of the NFIP, or alternatively, certifications for the design of openings of a fully enclosed area below the lowest floor subject to flooding criteria [44 CFR §60.3(c)(5)]; 6-6 FINAL DRAFT FEMA Manual 7810.4 5. Evidence of a .no rise. certification for development in the floodway [44 CFR §60.3(d)(4)]; 6. The elevation of the bottom of the lowest horizontal structural member of the lowest floor in all V-Zones [44 CFR §60.3(e)(2)]; 7. Record of certification that the pile-and-column foundation and structure attached is anchored to resist flotation, collapse, and lateral movement [44 CFR §60. 3(e)(4)]; and 8. Certification for a breakaway wall when design strength exceeds minimum NFIP criteria [44 CFR §60.3(e)(5)]. Note: While a structure or other development is presumed to be in violation until documentation is submitted, communities should be afforded a reasonable timeframe to provide this documentation. d. Provide details on the assistance provided or promised. e. Stress the importance of the community’s responsibility to monitor development in the SFHA and to enforce floodplain management regulations by emphasizing that adequate enforcement of community regulations not only guarantees a safer structure, but also results in a lower flood insurance rate. f. If a restudy is underway, reiterate the discussion or clarify issues raised during the CAV with local officials (e.g., when to expect a preliminary copy of the study, when to expect a final meeting, and when the community should update its regulations). g. Suspected violations that impact FEMA FIRMs/BFEs should also be copied to the FEMA Regional Office Engineer to enter into the spatial geodatabase to document and prioritize floodplain mapping needs and requests. h. Provide the name, address, and telephone number of the person to whom the community’s actions should be reported or assistance requested. The agency that conducted the CAV should be the most likely contact for the community during the initial CAV follow-up. However, States should coordinate with the FEMA Regional Office to determine the appropriate strategy for CAV follow-up, including whether a Corrective Action Plan (when substantive program deficiencies or violations are discovered) is required. i. Enclose information materials as promised (e.g., copies of Elevation Certificates or Floodproofing Certificates, NFIP regulations, Technical Bulletins, Floodplain Management Bulletins, or other publications). See the available publications list on the FEMA.GOV Floodplain Management Web Page under .Resources.. Set Specific Deadlines for all the community to respond. If serious deficiencies and/or potential violations are identified, they must be stated in the initial follow-up letter. The letter should set specific deadlines for actions, such as adopting NFIP or regulatory requirements, correcting program 6-7 FINAL DRAFT FEMA Manual 7810.4 deficiencies, and providing documentation for possible violations. Depending on the requested community action, there must be specific deadlines provided e.g. 30, 45, 60, 90 days for the community to respond to the letter itself and the specific cited actions in the initial follow-up letter. After a community submits the information requested as part of the CAV follow-up, it should receive a response within 30 days. 6-8 FINAL DRAFT FEMA Manual 7810.4 Chapter 7 -Community Assistance Visit: Follow-Up 7-1 General It is important that the recommendations and corrective actions indicated in the CAV findings in the CIS and as cited in the initial letter to the CEO be actively monitored and pursued to ensure that the community is complying with the NFIP floodplain management requirements. Even actions required of those other than the community (e.g., for map revisions) need to be monitored and pursued on a timely basis. It is also very important that all technical assistance promised by FEMA or the State be provided to the community on a timely basis. Three important aspects of the CAV follow-up phase include: (1) Provision of community assistance; (2) Monitoring and oversight; and (3) Documentation through a detailed chronology of all follow-up actions; technical assistance; and contacts among and between FEMA, the State, and the community. If the deficiencies and violations identified by the CAV are not resolved in a reasonable time during the normal CAV process, this chronology will become an essential part of initiating formal compliance actions (e.g., probation and/or suspension) described in the NFIP Community Compliance Program Guidance manual (hereafter referred to as the Compliance Manual). 7-2 Provision of Community Assistance Most CAVs will require at least some follow-up by the community, the State, or FEMA. A CAV should not be closed until each of the issues or problems identified have been resolved or remedied to the maximum extent possible and all assistance promised to the community has been provided. CAVs that do not require follow-up action or community assistance should be closed. If follow-up assistance is required, every effort must be made to provide it within 90 days from the date of the CAV. The .closed. date of the CAV will be determined by the FEMA Regional Office, in close coordination with the State, especially if the CAV is conducted by State staff. Technical Assistance is the First Step. Community officials want to do the right thing, if they know what the right thing is. Most deficiencies in community programs or violations of local ordinances are likely due to ignorance of NFIP criteria, lack of technical skills by the community, failure to understand the rationales behind program requirements, or lack of an appreciation of insurance implications and other consequences of a decision. Most problems should be resolved through community assistance efforts prior to commencement of an enforcement action. 7-1 FINAL DRAFT FEMA Manual 7810.4 a. Types of Community Technical Assistance. For many CAVs, some follow-up technical assistance will be necessary to resolve or remedy program deficiencies and/or violations. The types of technical assistance available to communities after the CAV is conducted include: 1. Assisting the community in preparing and adopting floodplain management regulations to achieve compliance. 2. Encouraging the Floodplain Administrator and/or other local officials to attend NFIP training courses as appropriate. 3. Assisting local officials in identifying any deficiencies that led to a violation. 4. Assisting local officials to identify and implement any enforcement options available to them through their own enforcement mechanisms, such as floodplain management, subdivision, or zoning regulations; building codes; or other planning and development requirements to remedy any identified violations. These options may include such actions as citing the property as a violation and indicating what action the property owner needs to take to correct the violation in a specific timeframe, pursuing with the community its ability to document the violation on the deed and/or title to the property, pursuing the violation in the courts, or requesting a Section 1316 Denial of Flood Insurance. 5. Assisting the community in developing a permit system, including use of a permit application, permit approval, certificate of occupancy, record-keeping, use of checklists, and coordination between departments involved in the planning and permit review procedures. 6. Assisting the community in obtaining and completing Elevation Certificates, Floodproofing certificates, or equivalent documentation. 7. Assisting the community in understanding the procedures for filing, reviewing, and processing variances. 8. Assisting the community in obtaining and using the FEMA Maps, FIS, and DFIRM. 9. Guiding the community on flood-loss reduction techniques and methods, such as elevation, floodproofing, retrofitting, land acquisition, development controls, higher regulatory standards, and other best management property protection measures including No Adverse Impacts. 10. Guiding the community in integrating flood-loss reduction concepts and best practices into local comprehensive development or Hazard Mitigation plans and activities. 11. Guiding the community on how to develop flood elevations in A-Zones without BFEs and how to perform floodway calculations. 7-2 FINAL DRAFT FEMA Manual 7810.4 12. Assisting the community in understanding the procedures for LOMCs and Physical Map Revisions. 13. Guiding communities on technical aspects of building construction, such as complying with V-Zone coastal construction standards, protecting machinery and equipment, and understanding the enclosure and openings requirements. 14. Encouraging CRS participation and providing application assistance. 7-3 Monitoring and Oversight It is necessary to ensure that local officials pursue actions to resolve or remedy any program deficiencies and/or violations to the maximum extent possible. For example, updating floodplain management ordinances, regulations, and permitting processes are common CAV-related activities that are typically resolved in a shorter timeframe than remedying structure violations. While it can take three months to one year in some communities to amend an ordinance, remedying a structure violation can take years. It is important that local officials continue to pursue these short-and long-term activities simultaneously. a. Corrective Action Plans A corrective action plan is the community’s commitment (in any format, including by letter) to resolve all remaining issues identified in the CAV to the maximum extent possible, in an agreed upon timeframe. The corrective action plan is noted with a lower-case .p. and is not a formal Plan – such as a Hazard Mitigation Plan. It is also sometimes referred to as a .remediation plan.. Remedial actions taken by If the community has substantive a community must be within proven violations or is not the bounds of their legal adequately proceeding towards authority and consistent resolution of the identified program with the minimum criteria of deficiencies, a corrective action plan the NFIP. should be considered. In most cases, a corrective action plan should be requested after the initial CAV follow-up letter has been sent and the community has provided documentation that confirms the existence of the suspected program deficiencies and violations. The corrective action plan can also be used when the more straightforward corrective actions (for deficiencies) have been completed and only the more complex, time-consuming corrective actions (for violations) remain. 7-3 FINAL DRAFT FEMA Manual 7810.4 Corrective Action Plan (aka: Remediation Plan): Key Points and Benefits Created by the community to demonstrate community ownership of remediation and intent to comply; Cites all deficiencies and violations to be addressed; Provides specific remediation methods for all violations that ensure that each is fully corrected or mitigated to the maximum extent practicable by law; Provides specific revisions to administrative procedures to address all program deficiencies; and Provides milestones for all required actions, including the frequency of reporting progress to FEMA. Corrective Action Plan Process. The FEMA Regional Office or State sends a letter to the community CEO with the CAV results and requests any follow-up actions per section 6-3 of this manual. The community responds to the letter with some or all requested documentation. The Region or State reviews the documentation and determines any remaining identified deficiencies and substantive violations to be included in the second follow-up letter to the CEO. This letter should request a corrective action plan with timeframes for how the community will resolve each identified serious deficiency and substantive violation to the maximum extent possible. Communities should be provided with a reasonable degree of latitude in determining how to correct a program deficiency or remedy a violation if they are operating on specific, agreed upon timeframes for resolution such as following a corrective action plan. However, the Regional Office or State should provide recommendations on a range of possible remedial actions. You may want to consider requesting a .resolution of intent to comply. from the community if the initial follow-up letter did not include it. The corrective action plan helps ensure progress toward resolving any identified issues or problems, and all actions should be periodically reviewed by telephone contact, e-mail, or meeting with local officials as necessary. A corrective action plan helps focus the CEO and community attention in an effort to resolve these issues before FEMA initiates the formal compliance actions of probation and/or suspension. This plan acknowledges the specific program deficiencies and individual violations, and specifies what the community will do to remedy each issue and by what date the corrective action will be completed. The letter to the CEO should set a 30-or 60-day limit on when the corrective action plan must be received, and it should include a recommended completion date for each of the corrective actions. The completion dates for 7-4 FINAL DRAFT FEMA Manual 7810.4 each corrective action must be set based on the knowledge/capability of local officials and their legal authorities, and on the complexity of the action. The most common timeframes for completing corrective actions for deficiencies are 30, 60, and 90 days. However, judgment must be used to set reasonable and achievable deadlines based on the nature of the problems. Keeping a timetable of expectations/milestones for completing corrective actions and documenting all follow-up is critical to the process. Once a corrective action plan is in place, the milestones should be updated in the CIS Compliance follow-up screens to track and monitor progress. Failure to Respond or Inadequate Response. The FEMA Regional Office should consider pursuing an enforcement action leading to probation or suspension if: The community CEO does not produce an acceptable plan within 30 to 60 days of the request (or reply by addressing all issues in a letter); The remedies are not completed per the cited milestones (and there are no extenuating circumstances); or At any time in this process, one or more of the corrective actions is not resolved appropriately after several attempts to gain compliance following the issuance of the CAV report and follow-up letter(s). Please refer to the Compliance Manual for documentation on the enforcement process for resolving identified deficiencies and violations and the process for placing a community on probation and/or suspension. States and the FEMA Regional Office should coordinate closely before the FEMA Regional Office initiates an enforcement action. b. CRS Retrogrades Participation in the CRS is a privilege. In order to participate in the CRS, communities are required to have a CAV to verify that they are fully compliant with the minimum standards of the NFIP. Once participating, they must remain in compliance to continue receiving CRS premium discounts. Therefore, when a CAV has identified any deficiencies and/or violations in a CRS community, corrective actions must be expeditiously completed by the community or the premium discount privilege must be removed by retrograding the community to a Class 10. Removing the CRS discount privilege is considered the first step in a compliance action against a CRS community. Retrograding the community from CRS removes the flood insurance discounts the community earned for its policyholders through its CRS rating. Beyond the loss of the CRS discount, the unresolved deficiencies or violations that triggered the CRS retrograde may ultimately lead toward the enforcement action of probation and suspension. The CRS 7-5 FINAL DRAFT FEMA Manual 7810.4 retrograde action must be done according to the CRS retrograde process as described in Appendix F, including coordination with the Regional Office CRS Coordinator. c. Notifying FEMA Regional Offices States should contact the FEMA Regional Office when communities have not taken the required corrective action(s) within the established and agreed-upon timeframes and after all attempts to assist the community have failed. Contacting the Regional Office should occur at the earliest possible point when the identified issues may require an enforcement action or other follow-up assistance by FEMA. The FEMA Regional Office, in consultation with the State, will determine the appropriate follow-up action. Ensuring that communities comply with NFIP floodplain management requirements by conducting enforcement actions is ultimately a FEMA responsibility and cannot be delegated to States. FEMA supports and encourages States to provide community assistance and to consult with communities on ways to correct program deficiencies and remedy violations. States are also expected to initiate enforcement actions based on their own statutory or regulatory authorities. The FEMA Regional Offices support State-initiated enforcement actions by providing technical assistance and initiating FEMA enforcement action, where appropriate. Based on the precedence clause in 60.1(d) of the NFIP regulations, FEMA’s position is to support these State-initiated enforcement actions even in instances where State regulations are more restrictive than NFIP minimum criteria. The precedence clause states that .any floodplain management regulations adopted by a State or a community which are more restrictive than the criteria set forth in this Part are encouraged and shall take precedence.. However, if a State chooses not to enforce its own regulation, FEMA must limit its enforcement actions to compliance with NFIP minimum criteria. The FEMA Regional Offices will consult with State agencies conducting CAVs on behalf of FEMA prior to initiating an enforcement action and will periodically inform the agency of actions taken to achieve community compliance. d. Notifying FEMA Headquarters (HQ) The FEMA Regional Offices should identify enforcement actions or other issues that require FEMA HQ involvement, action, and/or assistance at the earliest stage possible. Since the CAV report will be in the CIS, the FEMA Regional Office should only forward the relevant CAV supporting documentation needed by the respective FEMA HQ program offices (Floodplain Management, Mapping, Insurance) with a brief cover memorandum or e-mail stating the issue(s) that need(s) to be addressed. The FEMA Regional Office will similarly forward State CAVs to FEMA HQ. 7-6 FINAL DRAFT FEMA Manual 7810.4 Guidance for forwarding CAV reports to the FEMA HQ program offices is provided below. 1. Possible Enforcement Actions. CAVs of communities with potential or on­going enforcement actions should be forwarded to the FEMA HQ unit responsible for Floodplain Management. These CAVs should remain open until the problem or issue identified has been resolved or an enforcement action has been initiated. 2. Engineering or Mapping Issues. CAVs that identify deficiencies in an FIS report, FIRM, or other engineering issues requiring FEMA HQ action or assistance should be forwarded to the FEMA HQ unit responsible for Mapping, to ensure that the information is entered into the spatial geodatabase to document and prioritize floodplain mapping needs and requests. Otherwise, all identified mapping issues specific to a community should be forwarded to the FEMA Regional Office Engineer for appropriate follow-up. 3. Possible Flood Insurance Rating Errors. The person conducting the CAV is not an insurance underwriter and cannot specifically determine whether a structure is or is not misrated. A number of violations and/or variances in a community could be symptomatic of a serious misrating problem throughout the community. Certain information (such as Appendix D and Elevation Certificates) should be gathered for each structure and forwarded to the FEMA HQ unit responsible for insurance, for verification and possible re-rating in accordance with established procedures. 4. Programmatic Issues That May Require a Policy or Regulation Interpretation or Technical Assistance on Flood-Loss Reduction Strategies or Techniques. Occasionally, a CAV will highlight an issue that has implications broader than the individual community. A CAV could show, for example, that there is widespread misunderstanding of a rule interpretation or policy. A CAV could also demonstrate the need for developing manuals or other guidance for local officials. Programmatic issues could require a regulation change, an issuance of a statement of policy, or clarification of a regulation or policy. CAVs of communities that identify a need for a policy or regulation interpretation or a need for further technical assistance on flood-loss reduction strategies or techniques, such as a manual or NFIP Technical Bulletins, should be forwarded to the FEMA HQ Floodplain Management unit. 5. Issues Related to Flood Insurance Claims, Provisions in the Flood Insurance Manual, or Routine Flood Insurance Policy Servicing. CAVs that identify issues related to flood insurance claims or provisions in the Flood Insurance Manual, or those related to routine flood insurance policy servicing, including agent instruction or complaints, should be forwarded to the FEMA HQ Insurance unit. 6. Possible Lender Issues. CAVs that identify issues related to lending practices should be sent to the Lender Compliance Coordinator in the FEMA HQ Insurance unit. The Flood Disaster Protection Act of 1973 and 7-7 FINAL DRAFT FEMA Manual 7810.4 the National Flood Insurance Reform Act of 2004 assigns Federal agencies the responsibility for assuring that Federal flood insurance would protect buildings in the SFHA of participating communities for which Federal financial assistance has been provided. The Act also assigns Federal financial regulatory agencies (Federal instrumentalities) the responsibility of directing lenders, subject to their jurisdiction, to require that borrowers purchase flood insurance to protect the security for mortgages on buildings located in the SFHA of participating communities. FEMA has developed a close working relationship with these Federal agencies and Federal instrumentalities and has guidelines to assist lenders in meeting these obligations. 7. Executive Order 11988 – Floodplain Management. If, during a CAV, a Federal facility appears not to have been properly protected to the 100­year flood, or a Federal critical facility does not appear to have been protected to the 500-year flood, the FEMA Regional staff person conducting the CAV may want to contact the regional office of that Federal agency to discuss their procedures for evaluating new or improved Federal facilities in the floodplain (States should forward information to the FEMA Regional Office). While Federally owned facilities are not subject to local permits, Federal agencies should be encouraged to coordinate with the community in which they are located. Note: FEMA has no authority over other Federal agencies in implementing EO 11988. However, FEMA is a consultation agency under EO 11988 and can provide technical assistance when requested by the Federal agency. Therefore, if there are particular issues concerning a Federal facility in the floodplain, the person conducting the CAV may contact or forward information from the CAV to the FEMA HQ Floodplain Management unit. 8. CAVs of Special Interest. Some CAVs are of special interest even though they may not identify significant problems or require enforcement or other follow-up action. Examples of these CAVs include communities that have implemented exemplary floodplain management programs or innovative solutions to floodplain management problems, or chronic problem communities that now have effective programs. In addition, there are some CAVs that may prove controversial, such as those conducted one year or more after a major Presidentially declared disaster (e.g., 1994 Midwest Floods, Hurricane Katrina). These CAVs should be brought to the attention of the FEMA HQ Floodplain Management unit. 7-4 Follow-up Documentation/Chronology All follow-up activities (actions by the community and/or technical assistance promised to the community by FEMA or States) must be thoroughly documented in the CIS. Because it is impossible to know whether an enforcement action will become necessary, it is important to document relevant community activities. States should enter all documentation in the CIS in the appropriate fields, send signed correspondence via e-mail (with copies placed in the CIS CAV fields), and retain oversized documents in the 7-8 FINAL DRAFT FEMA Manual 7810.4 State file until requested by the FEMA Regional Office when follow-up activities have been completed. The chronology is also critical when undertaking a formal enforcement action of probation or suspension, to demonstrate to Federal, State, and local officials (and possibly the media) that every effort has been made to obtain compliance (highlighted by all documented responses) and now a formal enforcement action follows. Please refer to the Compliance Manual for additional advice on the above issues. Documentation of follow-up activities must include the following: A chronology of follow-up telephone contacts, e-mails, letters, and meetings; Copies of follow-up letters; A chronology of assistance provided to the community; and A chronology of actions taken by the community and supporting evidence (e.g., adopted floodplain management regulations, revised permit procedures, written evidence of certifications of lowest floor elevations for structures suspected to be in violation of community floodplain management regulations). Completed corrective actions for floodplain management problems identified during the CAV process fall into three basic categories: (1) Resolving the problem by making a full correction to a deficiency, such as amending the ordinance to meet NFIP minimum standards, and adding or adjusting steps/procedures/checklists in the permit implementation process to ensure all floodplain management requirements are met as part of that process. (2) Making a full correction to a violation (e.g., elevating the lowest floor of a structure constructed below the BFE). (3) The third, more challenging category occurs when a community cannot make a full correction to a structure in violation, but must still remedy the violation .to the maximum extent possible. as defined in 44 CFR §59.1 and discussed in detail in the Compliance Manual. For instance, in some cases a physical violation cannot be fully corrected if the community lacks the legal power to require it or is unable to persuade the property owner to do a complete correction using the enforcement powers available. If it is not possible to obtain full compliance, the community must reduce the impacts of non­compliance. 7-9 FINAL DRAFT FEMA Manual 7810.4 7-5 The NFIP Compliance Manual When the CAV follow-up process, including a corrective action plan, has not resolved the substantive deficiencies and/or violations that were identified, the appropriate NFIP enforcement actions of probation and/or suspension should be initiated. It is not possible to perform appropriate CAV follow-up enforcement actions without following the guidance in the Compliance Manual. The Compliance Manual establishes the procedures for the NFIP compliance program. It describes a number of formal compliance actions tailored either to communities or property owners, depending on with whom the problem originated. The Compliance Manual also describes the steps required to implement these enforcement actions and the coordination with FEMA HQ staff that is a necessary part of the formal compliance actions. Enforcement options vary for each community situation. Therefore, enforcement actions against individual structures must be balanced against various aggravating and mitigating factors as outlined in the Compliance Manual. The following tables from the Compliance Manual illustrate common examples of ways to remedy program deficiencies and violations. Table 1-1 EXAMPLES OF WAYS TO REMEDY PROGRAM DEFICIENCIES Amend ordinances to close loopholes or correct other program deficiencies that allowed the violations to occur. Amend ordinances to include more effective enforcement provisions or add penalty provisions. Change administrative procedures to improve the permitting and inspection process. This could include revisions of permit, certification, or inspection forms, changes in inspection procedures, or changes in procedural instructions given to the building inspector and other staff. Pass a resolution of intent to fully comply with NFIP requirements. Change or increase staff or resources used to enforce the local ordinances (FEMA generally does not mandate this remedial measure). Provide missing elevation, V-Zone, or floodproofing certificates. 7-10 FINAL DRAFT FEMA Manual 7810.4 Table 1-2 EXAMPLES OF WAYS TO REMEDY VIOLATIONS Demonstrate that the structure is not in violation by providing missing elevation, V-Zone, or floodproofing certificates. Submit engineering data showing that floodway fill results in "no increase" in flood stage. Rescind permits for structures not yet built or in the early stages of construction. Tear down or modify the non-compliant structure or remove fill in the floodway. (If the structure or other development cannot be made fully compliant, a lesser degree of protection should still be provided.) Develop and implement a master drainage plan or construct flood-control works to protect non-compliant structures. Seek civil/criminal penalties as provided for in the local ordinance or community code. In the case of a judgment in court against the community in such an action, the community is expected to appeal the decision if there are grounds for doing so. Initiate licensing actions against architects, engineers, builders, or developers responsible for the violations. Submit survey data/documentation required to verify insurance rates for existing policies. Issue declarations and submit them for Section 1316, denial of insurance. Submit evidence that the structure cannot be cited (legal constraints in State or local legislation, deficiencies in the ordinance, etc.). Submit sufficient data to verify the information submitted by the property owner of an uninsured building so that FEMA can ensure the building is properly rated if a policy is applied for in the future. 7-11 FINAL DRAFT FEMA Manual 7810.4 Appendix A -Community Assistance Contact Checklist of Issues for Discussion A-1. Floodplain Management Regulations • Ensure regulations reviewed are the most current. • Is floodplain management administered through a stand-alone ordinance only, or also through the community building code? • Identify what building code the community uses. • If using the IBC, did the community adopt IBC Appendix G or use a Companion Ordinance? • Discuss inadequacies, omissions, or other problems identified during prior review. • Offer assistance in updating community's regulations. • Discuss any other issues related to the community's floodplain management regulations. A-2. Map Availability and Accuracy • Determine availability of current FEMA maps and study. • Determine if community needs DFIRM Training or training on supporting digital tools. • Determine use of other maps or studies. • Identify problems using FEMA maps or study, such as A-Zones without BFEs. • Any recent flooding history? Ask for description of cause, extent, and damage. • Identify problems with accuracy of FEMA maps or study. • Identify boundary changes, annexations, or de-annexations. • Determine community's familiarity with LOMC and Physical Map Revision Process. • Consider other map-or study-related issues. A-3. Development Review Process • Development review procedures for new construction, substantial improvements, and other development (e.g., filling, grading, dredging, etc.). • Operating procedures for the following: – Obtaining the lowest floor elevation in A-Zones with BFEs. – Obtaining the elevation of the bottom of the lowest horizontal structural memberof the lowest floor in all V-Zones. – Use of the FEMA Elevation Certificate (required in CRS communities). • Operating procedures for securing certifications for the following: – Floodproofed non-residential structures. – Openings for enclosed areas below the lowest floor when design differs from minimum NFIP criteria. – Anchoring of a pile-and-column foundation and structure attached thereto in allV-Zones. – Breakaway walls in all V-Zones when design strength exceeds minimum criteria. • Development review procedures for floodplain/floodway development: A-1 FINAL DRAFT FEMA Manual 7810.4 – 1 foot or less elevation increase in the SFHA [44 CFR §60.3(c)(10)] when no floodway mapped. – Any elevation increase in the regulatory floodway [44 CFR 60.3(d)(3)] when mapped. • Process for reviewing development in A-Zones without BFEs. • Understanding of the subdivision rule of at least 50 lots or 5 acres in A-Zones without BFEs [44 CFR §60.3(b)(3)]. • Procedures for assuring that mechanical and electrical equipment (e.g., HVAC) are designed and located to prevent flood damage [44 CFR §60.3(a)(3)]. • Procedure for ensuring that buildings are constructed with materials resistant to flood damage [44 CFR §60.3(a)(3)]. • Inspections, certificates for occupancy, and other compliance activities. • Variance procedures, including notice of the effects of the variance on flood insurance rates. • Subdivision review process. • General use of land in the SFHA and the potential for future development in the floodplain. • Length of time that records of floodplain management requirements for permits are retained. Clarify that the records should be kept permanently. • Any unresolved questions from previous CACs, CAVs, or other source? • Other issues related to the community's floodplain management program. A-4. NFIP Community Information Review and Verification • Provide the number of flood insurance policies in force, claims paid, and any other relevant CIS community data. • Determine how long the current Floodplain Administrator has held the position, whether he/she is a CFM, and any NFIP training needed or recommended. A-5. Discuss Any Potential Violations, Deficiencies, or Compliments • Identify and discuss any potential violations or deficiencies identified during the CAC. • Highlight those areas where officials deserve a compliment for implementing their floodplain management program. A-6. Summarize the CAC Findings, Processes, and Follow-up Actions • Summarize the findings and discuss any planned follow-up actions with the Floodplain Administrator so he or she will know what to expect, and will have the opportunity to ask questions or make suggestions about the follow-up assistance that is offered. A-2 FINAL DRAFT FEMA Manual 7810.4 Appendix B -Sample Letter: Confirming CAV Meeting , RE: COMMUNITY ASSISTANCE VISIT Dear : A Community Assistance Visit (CAV) has been scheduled with , Floodplain Administrator, to discuss the participation in the National Flood Insurance Program (NFIP), and to address any questions your community may have about its NFIP responsibilities. will conduct the meeting. It is scheduled to begin at