HomeMy WebLinkAboutMINUTES - 10132009 - C.25RECOMMENDATION(S):
APPROVE and AUTHORIZE the Chair, Board of Supervisors, to execute a letter to the
White House Council on Floodplain Management, as recommended by the Transportation
Water Infrastructure Committee, Countywide.
FISCAL IMPACT:
If the Executive Order is approved as drafted, it could result in loss of opportunity to
achieve federal grant funding for local road projects. If additional layers of regulations and
analysis are required as well as further restrictions on the design of the improvements, it
may no longer be feasible for federal funds to augment local road funds. As the general
fund typically does not provide for road improvement or road maintenance projects, there
would be no impact on the general fund.
BACKGROUND:
The Executive Order from the White House has been drafted in an attempt to pro-actively
take measures to limit loss of life and property due to flooding, as well as preserve and
protect floodplain habitat. Although well intended, the draft of the Executive Order would
require
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/13/2009 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I
Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Susan A. Bonilla, District IV
Supervisor
ABSENT:Federal D. Glover, District V
Supervisor
Contact: Mary Halle, (925)
313-2327
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: October 13, 2009
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: EMY L. SHARP, Deputy
cc:
C.25
To:Board of Supervisors
From:Julia R. Bueren, Public Works Director/Chief Engineer
Date:October 13, 2009
Contra
Costa
County
Subject:Letter to the White House Council on Floodplain Management, Countywide.
BACKGROUND: (CONT'D)
any facility improvements within floodplain limits that receive federal funding or support,
to comply with the directive which includes requirements to avoid structural measures or
placement of fill within the floodplain. This would make it difficult for the County to
perform a simple surface treatment overlay for a road within the 100-year floodplain
under a federal funding program. It would also require preparation of detailed floodplain
analysis within the project limits that can be very costly. As the federal funding programs
are “key” to augmenting local road funds, it could lead to an eventual decline in road
condition and public safety as the local dollars would run short. To avoid this condition,
the attached letter to the White House requests refinement of the Executive Order to
include a provision that excludes maintenance or safety projects on existing roads from
the “covered actions.”
Attachment A to the letter provides the full review comments on the document which
includes more technical support regarding why existing roads should be excluded from
the provisions and how the Executive Order could be interpreted to divert investment
from urban centers which are located in coastal areas or adjacent to rivers. Attachment A
suggests that directives to avoid work in the floodplains is best targeted at keeping new
development from extending into floodplains rather than abandoning existing
infrastructure within the mapped limits of the 100-year floodplain.
CONSEQUENCE OF NEGATIVE ACTION:
Failure to authorize the attached letter to the White House could result in the Executive
Order remaining as written. As written, existing road maintenance and safety
improvement projects, within the 100 year floodplain, must comply with the Executive
Order in order to achieve federal grant funding. This could make the cost to achieve
federal dollars infeasible, resulting in a loss of funding potential for County roads.
ATTACHMENTS
Attachment A
Draft Executive Order
Floodplain Management Letter
Attachment “A”
Comments on the Executive Order on Floodplain Management
As it relates to Existing Road Infrastructure
Contra Costa County actively participates in various State and Federal grant programs
which fund highway safety improvements, safe routes to schools, and surface
treatment of existing local roads. The Executive Order states in Section 2b, Covered
Actions, Item 3, that “This order applies when Federal agencies finance or otherwise
assist in the construction or improvement of facilities.”
If the acceptance of federal funding for maintenance or safety projects on existing
roads would trigger a requirement for a floodplain study or preclude the placement of
“fill” material (such as asphalt, aggregate base, or road embankment material) or
other structural measures to maintain the existing roads, the cost of achieving the
grant and potential delay may make it infeasible to apply for these federal
transportation grants. Currently federal grants provide “key” funding to augment our
local funds, which in turn, improves our overall circulation system, encourages non-
vehicular transportation modes, and improves infrastructure longevity and public
safety.
We do not believe it is the intent of the Executive Order to limit maintenance of
existing roads. To clarify that road maintenance and safety improvement projects are
not included under the covered actions, please include an item in Section 2b, Covered
Actions, to insert the phrase . . . “except for road maintenance and safety
improvement projects for existing roads.”
Design standards throughout the country are based upon the requirements from FEMA
where the finished floor of structures should be located above the 100 year floodplain.
Consistent with this directive, most local agencies incorporate in their design standards
a tiered level of conveyance requirements, where storm drain pipes are required to
have capacity to convey the 10 or 25 year storm event depending on the size of the
tributary watershed. In the event of a 100-year storm, the stormwater which exceeds
the capacity of the underground pipe system is conveyed through local streets, which
serve as an open channel with the curb face on either side serving as the channel
walls. Maintenance and safety projects on these roads could be determined as a
covered activity within a floodplain. The potential to add the task of a floodplain
analysis, alternative studies, or an additional layer of analysis for a maintenance
project would be an inefficient use of public funds. This further supports the request
to include a provision where maintenance or safety improvements for existing roads
are exempt from the Executive Order.
It is understood that the intent of the Executive Order is to protect the natural
floodplains by controlling new construction within those areas, recognizing that the
most effective flood protection is when development is set back from the natural creek
and the natural creek processes are allowed to occur. The executive order should
acknowledge that in densely populated areas where the risk to life and property is
concentrated, structural measures such as placement of fill to repair levees,
installation of rock walls to protect against levee breach or retaining walls to protect
against road embankment failure may be the most appropriate choice to assure public
safety.
Historically, urban centers throughout the nation have been established adjacent to
the coast and along rivers. It is important to clarify that the executive branch does not
intend to abandon existing downtown infrastructure in these communities by
promoting the “no action alternative” as suggested in Section 4.b.3. This could be
clarified through additional discussion of which agency has the authority to determine
whether there is a “practicable” alternative.
One final note relates to the investment in existing infrastructure and the use of
floodplain mapping in the decision making process. The Executive Order should
recognize that investment of federal dollars on infrastructure based upon whether the
facility is located within the limits of a 100-year or 500-year floodplain mapping, could
be based upon data that is inherently imprecise. It should be acknowledged that the
data base of weather related events is in its infancy. Most agencies currently have
recorded data in the range of 50-75 years. Until we have collected over 200 years of
rainfall data, it will be difficult to accurately predict a 100 year storm event and nearly
impossible to predict a 500-year event. There are several general categories within the
FEMA mapped system:
o Areas that have experienced frequent flooding in the past, confirming that the
area is within the floodplain.
o Areas that are mapped within the floodplain but flooding has not been
recorded.
o Areas that are not located within the floodplain but may actually be located
within the floodplain limits.
Consider the last two categories and the potential to either invest or divert federal
funding from a community, not knowing whether it was correctly labeled for another
100-200 years. An influx of federal funds to revitalize infrastructure greatly affects the
quality of life to a community. The Executive Order on Floodplain Management should
leave flexibility for those areas “on the fringe”, where flooding events have not been
observed, to assure that decisions are only based upon accurate data or the
uncertainty of the data is acknowledged.
G:\transeng\2009\TE\corrospondence\Attachment A Floodplain Executive Order
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Executive Order
Floodplain Management
By the authority vested in me by the Constitution and statutes of the United States of America,
and as President of the United States of America, in furtherance of the National Environmental
Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), the National Flood Insurance Act of
1968, as amended (42 U.S.C. 4001 et seq.), and the Flood Disaster Protection Act of 1973
(Public Law 93-234, 87 Stat. 975), the Coastal Barrier Resources Act of 1982 (Public Law 97-
348), and the Coastal Barrier Improvement Act of 1990 (Public Law 101-591; 104 Stat. 2931),
I hereby order as follows:
Section 1- Policy
Floods have caused a greater loss of life and property and have devastated more families and
communities in the United States than all other natural hazards. Despite the expenditure of
billions of tax dollars trying to manage floodwaters and guide wise use of floodplains, flood
damages continue to increase and every year billions are spent in response to flood disasters. In
addition, natural floodplains contain numerous inherent values that are of great importance to the
Nation. The federal government must therefore strengthen its commitment to reducing the loss
of life and property caused by floods and to protecting and restoring the natural resources and
functions of floodplains. While the responsibility for implementing cost-effective and
environmentally-sound floodplain management is shared among federal, state, tribal, and local
governments, each federal agency must provide leadership and take action, when appropriate, to
reduce the risk of flood losses.
Section 2 - Purpose and Applicability
(a) Purpose. To direct federal agencies to provide leadership and take action to:
(1) Reduce the loss of life and property caused by floods.
(2) Protect and restore the natural resources and functions of floodplains. (The
definitions of italicized words or phrases are found in Section 3.)
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(3) Avoid the short and long term adverse effects of occupying and modifying
floodplains.
(4) Avoid direct or indirect Federal support to development in or adversely affecting a
floodplain, whenever there is a practicable alternative.
(5) Promote and implement cost-effective and environmentally sound floodplain
management.
(6) Consider the effect that climate change and anticipated future conditions might
have on the extent and frequency of flooding.
(7) Use scientifically credible flood information in Federal decision-making.
(b) Covered Actions. This Order applies when Federal agencies:
(1) Acquire an interest in, manage, or dispose of lands, structures and facilities
(2) Construct or substantially improve Federal facilities
(3) Finance or otherwise assist in the construction or improvement of facilities
(4) Develop or evaluate water resource and land use plans
(5) Regulate, permit, or license water resource and land use activities.
Section 3 – Definitions. As used in this Order:
(a) Adverse effects means harm or detriment to the natural resources and functions of
floodplains and increased risk of damage or loss of life or property from flooding. "Effects"
include:
(1) Direct effects, which are caused by the Covered Action and occur at the same time
and place.
(2) Indirect effects, which are caused by the covered action and are later in time or
farther removed in distance, but are still reasonably foreseeable and likely.
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(3) Cumulative effects, which result from the incremental effect of the covered action
when added to other past, present, and reasonably foreseeable future actions regardless of what
agency (Federal or non-Federal) or person undertakes such other actions.
(b) Agency means "Executive agency" as defined in Section 105 of Title 5 of the United
States Code, the military departments as defined in Section 102 of that title, and the U.S. Postal
Service.
(c) Covered Actions mean those actions described in section 2(b).
(d) Critical action means any covered action for which even a slight chance of flooding
would be too great. This can include, but is not limited to, covered actions or facilities critical to
the health and safety of the public and the environment, such as hospitals and nursing homes,
emergency operations centers (particularly police, fire, and rescue), vital data storage centers,
power generation and other utilities (including related infrastructure such as principal points of
utility systems) and any that produce, use or store toxic pollutants as defined under the Clean
Water Act and other Federal statutes.
(e) Facilities means any man-made or man-placed items including, but not limited to
buildings or other structures, roads and bridges, filling, utilities, storage of equipment and
materials,
(f) Flood risk management measures or systems means any single or combination of
nonstructural measures and structural measures, changes, or adjustments that will reduce flood
damages.
(a) Floodplain means for other than critical actions, the area subject to a 1 percent or greater
annual chance of flooding (the "100-year" floodplain). For critical actions, floodplain means that
area subject to a 0.2 percent or greater annual chance of flooding (the "500-year" floodplain).
(b) Floodplain management means a continuous process of making decisions about whether
and how floodplain lands and water are to be used.
(c) Floodway means the channel of a river or other watercourse and the adjacent land areas
that must be reserved in order to discharge the 1 percent annual chance flood without
cumulatively increasing the water surface elevation more than a designated height.
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(d) Natural resources and functions of floodplains means those attributes commonly found
within floodplain systems such as flood storage and conveyance, groundwater recharge, water
quality, fish and wildlife habitats, wetlands, coastal dunes, mangroves, ecosystem integrity, and
socio-economic resources such as open space, farm land, and recreation opportunities.
(e) Nonstructural measures means techniques that modify susceptibility to flooding by
means other than structural measures, such as development and redevelopment policies,
planning, and regulations; relocation and acquisition; open space and land management; wetland
restoration; and elevation and floodproofing.
(f) Practicable means capable of being done within existing constraints. The test of what is
practicable depends upon the situation and includes consideration of many factors, such as
environment, cost, technology, or legal authorities.
(g) Residual risk means the risk that remains after flood risk reduction measures have been
established. Risk remains because of the possibility that structural failures and/or flood or
hurricane intensity will surpass the implemented measures.
(h) Structural measures means flood risk management techniques or measures that modify
flood flows by building structures to manage the flow of water. Examples of structural projects
include: levees and floodwalls, reservoirs and diversions, seawalls and revetments, channels and
drainage modifications, and dams.
(i) System-wide means having to do with a coastal area, watershed, or area within a
watershed, that has common or interrelated basin hydrology, hydraulics, and ecosystem elements.
(j) Watershed means an area of land that drains water, sediment, and dissolved materials to a
common water body such as a river, lake or ocean.
Section 4 - Decision making process for Covered actions
The decision making process applies to covered actions in floodplains or actions that cause
adverse effects on the floodplain. When preparing documents for compliance with the National
Environmental Policy Act (NEPA), agencies can incorporate compliance with this Order, when
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relevant to the proposed Federal action
(a) Identify floodplains
Before taking a covered action, an agency must determine whether that action will occur in or
adversely affect a floodplain or is a critical action. The agency shall use Federal Emergency
Management Agency's (FEMA) floodplain information, including maps and Flood Insurance
Studies, to make its determination. If the Agency determines that it needs additional information
or if FEMA's information is not available for the area or is insufficiently detailed, the Agency
should look elsewhere for scientifically credible information, or develop the information itself.
If the covered action is not in or does not adversely affect a floodplain, the covered action is not
subject to the remaining requirements of this Order.
(b) Identify and evaluate practicable alternatives.
If an agency determines that its covered action is in a floodplain or adversely affects a floodplain,
the agency must fully evaluate practicable alternatives that include:
(1) Using other sites outside the floodplain that would not adversely affect a floodplain.
(2) Taking other actions that serve essentially the same purpose as the proposed covered
action but that are not in a floodplain or would not adversely affect a floodplain.
(3) Taking no action.
If the Agency revises its covered action to avoid any action in or that would adversely affect a
floodplain, the covered action is not subject to the remaining requirements of this Order.
(c) Identify and mitigate effects
If after evaluation of practicable alternatives, the Agency proposes to take covered actions in or
that adversely affects a floodplain, the agency shall:
(1) Give the public a chance to comment on the proposed covered action in accordance
with Section 8(a) (1)-(3).
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(2) After considering public comments received, make a formal finding that there is
no practicable alternative that is not in or affecting a floodplain.
(3) Identify the effects of the Covered Action and then, to the extent Practicable:
a. Design or modify the proposed covered action to avoid or minimize the
potential for loss of life from flooding and potential adverse effects to the natural resources and
functions of the floodplain, and protect facilities from potential flood damage, following
regul ations and procedures issued or amended under Section 9 of this Order.
b. For critical actions, if locating outside the 0.2 percent annual chance flood
hazard area is not practicable, protect these critical actions so they can withstand the 0.2 percent
annual chance flood or otherwise minimize possible damages from such a flood. If the .2 percent
annual chance flood data is not available, an estimate of the 0.2 percent annual chance flood must
be developed in coordination with FEMA.
c. Avoid placing fill in the floodplain to achieve flood protection to the
extent practicable.
d. Avoid placing fill or other obstructions in the floodway and coastal high
hazard areas.
e. Ensure that the proposed action considers and has dealt with the residual
risks that exist behind levees and other flood risk reduction structures.
f. Design or modify the proposed covered action to be consistent with
Federal, State, tribal, and local:
(i) Flood risk reduction and floodplain management plans, standards,
criteria, regulations or procedures that are more restrictive than those in the Agency’s regulations
and procedures developed under Section 9
(ii) Environmental protection and restoration plans, regulations and laws.
g. Consider, after completion of a-f above, if the proposed action is still
feasible.
h. Prepare and circulate a notice as required in Section 6(b) (7).
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(d) Process requirements for disposing of Federal property.
When property in a floodplain is proposed for lease, easement, right-of-way, or disposal to non-
Federal public or private entities, agencies must make full use of their legal authorities to:
(1) List in the document transferring the property those uses that are restricted and
requirements under applicable Federal, State, or local floodplain management regulations and
procedures.
(2) Attach appropriate restrictions to the uses of properties by the grantee or purchaser
and any successors.
(3) Consider retaining these properties in Federal ownership.
(e) Process requirements for Federal financial involvement.
In addition to the requirements of the order and the responsibilities agencies have under Sections
202 and 205 of the Federal Disaster Protection Act of 1973 as amended (42 USC 4106 and 4128
and Section 1364 of the Flood Insurance Act of 1968 as amended (42 USC 4104a), agencies
which guarantee, approve, regulate or insure any financial transaction shall inform private parties
of the hazards of locating structures or facilities in the floodplain before completing the
transaction by:
(1) Indicating if the property is in a floodway or coastal high hazard area; and
(2) Indicating that the property may be subject to Federal, States or local floodplain
management regulations.
(f) Process requirements for planning and issuance of Federal licenses, permits loans, and
grants.
Agencies must also take floodplain management into account by:
(1) When developing or evaluating water or land use plans, ensuring that the use of
land and water resources is appropriate to the degree of hazard involved
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(2) Providing guidance to applicants to help them evaluate the adverse effects of
their proposed actions in or adversely affecting a floodplain before they apply for Federal
licenses, permits, loans, or grants.
Section 5 - Managing existing Federal facilities within floodplains
(a) Within four years of the issuance of this Order, each agency shall develop and maintain a list
of all its owned or leased facilities within the floodplain.
(b) Within 6 years of this Order, each agency shall expand the list to include the following:
(1) A description of each facility’s vulnerability to flooding or its contribution to
increasing flood damages. If the facility is a critical facility, describe its vulnerability to a 0.2%
annual chance flood event.
(2) A description of the public health, safety, or other benefits the facility provides.
(3) An assessment of whether the degree of flood risk to the Federal facility, public health
and safety, and potential impact on the environment merit undertaking mitigation measures.
Some of the measures to consider are relocating or altering (e.g., elevating, changing operations,
improving design) the facility or vulnerable uses within the facility, or relocating services the
facility provides.
(c) When repairing, improving, or rehabilitating Federal facilities in the floodplain that are not
substantial improvements or repair of substantial damage, consider undertaking mitigation
measures to minimize the flood risk to the facility.
Section 6 - Promote nonstructural approaches
In addition to the requirements in Section 2, agencies shall:
(a) When acting on proposals for planning, developing, constructing, managing, repairing,
restoring, and evaluating flood risk reduction measures or systems, use, as much as practicable,
nonstructural measures, design modifications, and enhancements that would:
(1) Reduce the risk of future flood damages without increasing damages upstream or
downstream or adjacent to the covered action.
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(2) Lower long-term cost to the taxpayers.
(3) Protect, restore, and/or improve environmental conditions, including wetlands,
riparian buffers, beach dune systems, fish and wildlife habitat, species diversity, and water
quality.
(b) Address flood damage reduction on a system-wide or watershed basis, using the concepts of
integrated water resources management.
(c) Encourage State, tribal, and local communities to get involved and assume responsibility for
flood response and floodplain management. Specifically, to the extent practicable:
(1) Coordinate with State, tribal, and local governments.
(2) Follow existing community adaptation, floodplain management and hazard mitigation
plans, when they meet or exceed Federal requirements.
(3) Encourage development of community adaptation, floodplain management and hazard
mitigation plans as part of flood response proposals.
(4) Encourage States and tribes to take responsibility for non-Federal levees.
(5) Work with State, tribal and local governments to coordinate scientific activities and
develop information to assist in response and restoration efforts.
(6) In accordance with existing authorities, make levee and other flood risk reduction
structure repair and associated recovery and restoration funds available to States, tribes, and local
governments for use in implementing nonstructural damage mitigation plans.
(d) Where authorized, institute State, tribal, and local cost-sharing, and make flood damage
reduction measures or systems funds available to States and tribal governments for implementing
nonstructural flood loss reduction measures or flood hazard mitigation plans that are consistent
with this order.
Section 7- Sharing scientific information
(a) Use consistent and current science.
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Agencies shall use consistent and current scientific principles and methods for effective
floodplain identification and management. They shall use those principles and methods to gain
knowledge and understanding of the processes that create floodplains, of the natural and
beneficial resources of floodplains, and of the consequences of human interaction.
(b) Coordinate with others.
Agencies shall coordinate scientific activities, share existing databases, and coordinate the
development of information relevant to flood impact prediction, flood response, recovery and
floodplain management planning with other Federal, State, tribal, and local agencies or other
institutions, as much as is practicable. This will avoid duplication of data and model
development and improve local and State floodplain management strategies, flood recovery and
vulnerability reduction schemes and ensure the standardization, compatibility and transferability
of such data among Federal agencies.
Section 8 – Public Involvement
(a) Opportunity to Comment.
Before taking any covered action in or adversely affecting a floodplain, agencies shall:
(1) Provide the affected public with an opportunity to review and comment on your plans
and alternatives.
(2) Coordinate early in the process with affected Federal, State, tribal, and local agencies
with jurisdiction by law or special expertise in environmental, coastal zone, and floodplain
management matters.
(3) Provide the affected public with an opportunity to review and comment on any revised
plans, designs, and alternatives under consideration.
(4) Ensure that the head of the agency (or his/her designee) fully considers all public
comments and all practicable alternatives before making a determination to proceed with any
proposed covered action that will be in or adversely affect a floodplain.
Public involvement under this order may be accomplished in conjunction with public
involvement performed under NEPA.
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(b) Findings and public notice.
If, after giving the public an opportunity to comment, the head of an agency (or his/her designee)
finds that there is no practicable alternative outside the floodplain or that there is no practicable
alternative that does not adversely affect the floodplain, document compliance with this order by:
(1) Describing the proposed covered action and its adverse effects on the floodplain;
(2) Explaining why locating the proposed covered action within the floodplain or
affecting the floodplain is the only practicable alternative.
(3) Describing the other potential sites and actions considered, including their locations,
and state why each was rejected
(4) Stating, for the proposed covered action, what the agency will do to avoid, minimize,
or mitigate the adverse effects to the floodplain and/or minimize the risk of future flood damage.
(5) Stating how the proposed covered action is consistent with Federal, State, tribal, or
local flood reduction projects and floodplain management plans, requirements, and laws or
explain how and why the proposed covered action is inconsistent.
(6) Summarizing how the agency proposed to protect, preserve, and restore the natural
resources and functions of the floodplain affected by the covered action.
(7) Making this information available to the affected public and Federal, State, tribal, and
local agencies with jurisdiction by law or special expertise in environmental and floodplain
management matters.
(8) Allowing for an adequate comment period before you take any covered action.
This public involvement documentation can be incorporated into documentation prepared by the
agency for compliance with the National Environmental Policy Act.
(c) Promoting public awareness of flood hazards.
(1) If Federal property used by the general public has suffered flood damage or is located in
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an identified flood hazard area, agencies shall show the past and probable flood heights on the
property, and other places where appropriate in order to enhance public awareness of and
knowledge about flood hazards.
(2) Where the information is available, responsible agencies shall make publicly available the
current estimate level of protection provided by Federally constructed or financed flood damage
reduction measures or systems. This information should assist public institutions as well as
individuals manage floodplains and watersheds to reduce unacceptable risks to facilities and
population centers.
Section 9 - Regulations and reporting requirements
(a) As allowed by law, agencies shall amend their existing regulations and procedures within
one year of the date of this Order. Current regulations will remain in place until amended or
replaced.
(1) Agency regulations and procedures should, as much as practicable, incorporate by
reference existing regulations, such as those of the Council on Environmental Quality (CEQ).
(2) Agency regulations should reflect the standards, criteria and regulations or
procedures issued under the National Flood Insurance Program and the Unified National Program
for Floodplain Management and the requirements of this Order.
(3) Agency regulations and procedures must also, at a minimum, require that the
construction of Federal facilities and federally assisted structures comply with the standards
issued under the National Flood Insurance Program and the requirements of this Order. Agencies
should consider going beyond these minimum standards for those types of actions where higher
levels of protection are necessary and appropriate or for actions not covered by the National
Flood Insurance Program. Agency regulations may differ from the National Flood Insurance
Program only to the extent that the standards of the National Flood Insurance Program are clearly
inappropriate for a given type of structure or facility.
(4) Agencies must address flood hazards and natural resources and functions of
floodplains in the regulations and operating procedures for the licenses, permits, loans, or grant
programs for water resource and land use activities.
(5) Agency policies and regulations should avoid creating incentives for floodplain
development. Agencies should evaluate their policies and procedures for approving, regulating,
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funding, assisting, permitting, or licensing activities to ensure that they are not encouraging the
use of structural measures that would make it easier to develop floodplain areas.
(b) Agencies should consult with FEMA and CEQ before writing their regulations and
procedures.
(c) Within one year of the issuance of this order, each agency must submit a report to OMB and
CEQ indicating the status of regulation and procedure revisions. Every four years thereafter,
each agency must evaluate the effectiveness of its regulations and procedures and report the
results of the evaluation to OMB and CEQ.
Section 10 - Administrative Information
(a) How this Order affects the earlier Floodplain Management Order.
This Order replaces Executive Order No. 11988, issued on May 24, 1977. All guidance prepared
under that Order will remain in effect until modified under this new Order.
(b) How this order relates to Section 104(g) of the Housing and Community Development
Act of 1974 and similar provisions.
If Section 104(g) of the Housing and Community Development Act of 1974, as amended (88
Stat. 640, 42 U.S.C. 5304(h)) or a similar provision of law applies to a covered action, and an
entity other than a federal agency has assumed responsibility for federal NEPA compliance, that
entity may also assume responsibility for complying with this Order.
.
(c) Asking for new budget items to cover covered actions in or adversely affecting a
floodplain.
Whenever agencies requests from OMB new authorizations or appropriations for particular
covered actions in or adversely affecting a floodplain, agencies must report whether the proposed
covered action would comply with this Order.
(d) Limitations
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(1) Order does not create private cause of action.
This order is intended only to improve the internal management of the Executive branch. It does
not create any right, benefit, or trust responsibility, substantive or procedural, enforceable in law
or equity by a party against the United States, its agencies, its officers, or any other person.
(2) Classified Information
Nothing in this Order affects limitations on the dissemination of classified information pursuant
to law, regulation, or Executive order.
(3) Geographical Reach
This order only applies to covered actions undertaken in any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United
States Virgin Islands, the Northern Mariana Islands, and any other territory or possession over
which the United States has jurisdiction. Agencies may follow the procedures of this Order for
covered actions undertaken outside the areas listed above.
(4) Emergency Assistance
This Order does not apply to assistance agencies provide for emergency work essential to save
lives and protect property and public health and safety, performed under PL 84-99 (33 U.S.C.
701n) or Sections 402 and 403 of the Robert T. Stafford Disaster Relief Emergency Assistance
Act, as amended (PL 93-288). However, whenever practicable, agencies shall make this
assistance consistent with this Order.
David Twa
Clerk of the Board
and
County Administrator
(925) 335-1900
September 15, 2009
Nancy Sutley, Chair
White House Council on Environmental Quality
722 Jackson Place NW
Washington, DC 20503
Dear Chair Sutley and members,
Contra Costa County has reviewed the Draft Executive Order on Floodplain Management, Version
0510/2009V1. We appreciate that the Executive Order is intended to take a more proactive approach
to floodplain management, primarily focused on limiting loss of life and property due to flooding. The
County board members would like to express concern that the wording of the Executive Order could
be interpreted as a regulation that applies when federal grants are awarded for road maintenance
and road safety improvement projects. Contra Costa County requests that the Executive Order be
revised to clarify that maintenance and safety improvements for existing roads is not subject to the
requirements in the Executive Order.
Our general comments are provided below with further clarification provided in Attachment A:
Federal funding through transportation grant programs augment local dollars and improve
longevity of our roads and provide for public safety.
The Executive Order as written could make the cost of achieving a federal grant impractical.
To avoid this complication, it is suggested to indicate in Section 2b, Covered Actions that road
maintenance and safety improvement projects for existing roads are not considered a
”covered action.”
The FEMA design guideline indicates that buildings are to be constructed above the elevation
of the 100 year floodplain. In contrast, roadways have been designed to serve as an overland
release route for flood flows. This supports the request that funding for roadways should not
be restricted based upon whether it is located in a floodplain.
Where risk to life and property is concentrated, structural measures within a floodplain may be
necessary.
Many of the nation’s urban centers are located in coastal areas or adjacent to rivers. The
Executive Order could be interpreted as a direction to eliminate the nation’s investment in
these urban centers.
John Muller
June 4, 2009
Page 2
2
Unless flooding has been recorded historically, the identification of the floodplain limits is an
imprecise projection of flood levels and shouldn’t be the basis for decision making on
infrastructure investments.
Thank you for the opportunity to provide input on this draft policy on floodplain
management.
Sincerely,
Susan Bonilla, Chair
Contra Costa County Board of Supervisors
JB:MA:MH:jcw
G:\TransEng\2009\TE\Correspondence\Floodplain Management Executive Order ltr3.doc
Attachment
Cc: Susan Bonilla, Chair, Board of Supervisors
John Gioia, Vice Chair, Board of Supervisors
Gayle B. Uilkema, Board of Supervisors
Mary Piepho, Board of Supervisors
Federal Glover, Board of Supervisors
Rich Seithel, County Administrators Office
Michael Blake, Associate Director, Department of Intergovernmental Affairs
Cecilia Munoz, Director, Department of Intergovernmental Affairs
Cass R. Sunstein, Administrator, Office of Information and Regulatory Affairs
Julie Bueren, Public Works Director
Michele Wara, Public Works Department, Administration
Steve Kowalewski, Public Works Department, Administration
Mike Carlson, Public Works Department, Transportation
Joe Yee, Public Works Department, Maintenance
Mary Halle, Public Works Department, Transportation
Mitch Avalon, Public Works Department, Administration
Contra Costa Transportation Authority
Tri-Valley Transportation Council
Paul Schlesinger, State Lobbyist
California State Association of Counties (CSAC)
California Engineers Association of California (CEAC)
Mark Watts, State Lobbyist
Jim Kennedy, Department of Conservation and Development
Joseph Villarreal, Housing Authority Director