Guidelines for Implementing Executive Order 11988, Floodplain Management, as Revised, FEMA , 80 Fed. Reg. 6,530 (Feb.

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1 Regulatory Affairs Division Office of Chief Counsel Federal Emergency Management Agency 8NE, 500 C Street, SW Washington, DC Submitted via Re: Guidelines for Implementing Executive Order 11988, Floodplain Management, as Revised, FEMA , 80 Fed. Reg. 6,530 (Feb. 5, 2015) Dear Sir or Madam, The American Gas Association ( AGA ), American Public Power Association ( APPA ), Edison Electric Institute ( EEI ), National Rural Electric Cooperative Association ( NRECA ), and Utility Water Act Group ( UWAG ) thank you for the opportunity to submit comments on the Revised Guidelines for Implementing Executive Order 11988, Floodplain Management ( Implementing Guidelines ), published by the Federal Emergency Management Agency ( FEMA ), on behalf of the Mitigation Framework Leadership Group. 80 Fed. Reg. 6,530 (Feb. 5, 2015). This comment letter addresses some of the above organizations concerns regarding the Implementing Guidelines, including, but not limited to, the expansion of the definition of floodplain, the ambiguous regulatory scope of the Implementing Guidelines, and the resulting regulatory burdens, delays, and costs of implementing the Executive Order ( EO ) through the Implementing Guidelines. EO incorporates a new Federal Flood Risk Management Standard ( FFRMS ) into the pre-existing federal floodplain management policy established in EO EO requires federal agencies to avoid, to the extent possible, adverse impacts associated with the occupancy and modification of floodplains, and to avoid support of floodplain development wherever there is a practicable alternative. Because the EO and FFRMS apply to all federal actions and expand the geographic reach of floodplains subject to federal review, we expect that a far greater number of federal actions will potentially be subject to floodplain management obligations. I. Description of Undersigned Organizations and Their Interest in the Implementing Guidelines The AGA, founded in 1918, represents more than 200 local energy companies that deliver clean natural gas throughout the United States. There are more than 71 million residential, commercial, and industrial natural gas customers in the U.S., of which 92 percent more than 65 million customers receive their gas from AGA members. AGA is an advocate for natural gas utility companies and their customers and provides a broad range of programs and services for member natural gas pipelines, marketers, gatherers, international natural gas companies, and industry associates. Today, natural gas meets almost one-fourth of the United States energy needs.

2 Page 2 APPA is the national service organization representing the interests of publicly-owned electric utilities in the United States. More than two thousand public power systems provide over fifteen percent of all kilowatt-hour sales to ultimate customers. APPA s member utilities are not-for-profit utility systems that were created by state or local governments to serve the public interest. Some publicly-owned electric utilities generate, transmit, and sell power at wholesale and retail, while others purchase power and distribute it to retail customers, and still others perform all or a combination of these functions. Public power utilities are accountable to elected and/or appointed officials and, ultimately, the American public. The focus of a public power utility is to provide reliable and safe electricity service, keeping costs low and predictable for its customers, while practicing good environmental stewardship. EEI is the association of U.S. investor-owned electric companies. EEI members represent approximately 70 percent of the U.S. electric power industry, provide electricity for 220 million Americans, operate in all 50 states and the District of Columbia, and directly employ more than 500,000 workers. NRECA is the national service organization for more than 900 not-for-profit rural electric utilities that provide electric energy to approximately 42 million people in 47 states. Electric cooperatives are private, independent electric utilities owned by the members they serve. Each is governed by a board of directors elected by and from the membership and established to provide reliable electric service to their owner-members at the lowest reasonable cost, especially those members who are residents of rural communities who already spend more per capita on energy than citizens in other parts of the country. NRECA s members include distribution cooperatives that provide electric power to 19 million businesses, homes, schools, farms, and other establishments in 80 percent of U.S. counties and generation and transmission cooperatives ( G&Ts ) that provide wholesale power to their distribution cooperative owners. UWAG is a voluntary, ad hoc, non-profit, unincorporated group of 187 individual energy companies and three national trade associations of energy companies (APPA, EEI, and NRECA). The individual energy companies operate power plants and other facilities that generate, transmit, and distribute electricity to residential, commercial, industrial, and institutional customers. UWAG s purpose is to, among other things, participate on behalf of its members in agency rulemakings and in litigation arising from those rulemakings. The members of our five organizations represent the electricity and natural gas distribution sectors of our economy and provide vital energy delivery services to customers and communities nationwide. Our members operations are sometimes located in floodplains and are frequently the subject of federal actions, including permitting and licensing. Accordingly, our members have a strong interest in the Implementing Guidelines, which implicate nearly every federal action in or near a floodplain. The cost of complying with the vague and expanded federal floodplain policy may be significant and may unduly restrict necessary infrastructure development, including the operation, maintenance, and repair necessary for the reliable delivery of electricity and natural gas across the nation. These comments address three specific concerns: (1) the scope of federal actions subject to the EO, FFRMS, and Implementing Guidelines; (2) the ambiguities and lack of guidance provided to appropriately determine the reach of floodplains subject to the FFRMS and Implementing Guidelines; and (3) the impacts, costs, and delay resulting from the EO, FFRMS,

3 Page 3 and Implementing Guidelines. These concerns, and certain specific impacts on energy utilities, are discussed in further detail below. II. The Implementing Guidelines Create Unnecessary Uncertainty Regarding the Range of Federal Actions Subject to the FFRMS The Implementing Guidelines should respect the scope of the new FFRMS described in EO 13690, which states that incorporating the FFRMS is intended to ensure that projects funded with taxpayer dollars last as long as intended. However, EO applies more broadly, directing federal agencies to take action to reduce the risk of flood loss, to minimize the impact of floods, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for (1) acquiring, managing, and disposing of Federal lands and facilities, (2) providing Federally undertaken, financed, or assisted construction and improvements, and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating and licensing activities. Because EO limits the scope of the FFRMS to a subset of federal actions, the scope of the Implementing Guidelines should similarly be narrowed. The FFRMS expands the geographic reach of floodplains from that area subject to a 1 percent-or-greater chance of flooding in any given year (i.e., the 100-year floodplain) to something much broader. If the Implementing Guidelines apply to any federal action within or affecting a floodplain and the FFRMS s expansive geographic scope of a floodplain is applied, there will be a dramatic increase in the number, and scope, of federal actions subject to floodplain management obligations. Requiring certain electric- and gas-related infrastructure in floodplains to be designed to withstand the postulated increased risk of flood could result in the decision to not make such investments, which could decrease the resiliency and reliability of infrastructure to non-flood events, e.g., ice and wind storms. To avoid such consequences, the Implementing Guidelines should be revised to target those federal actions included in the scope of the FFRMS described in EO At a minimum, the Implementing Guidelines should not apply to permitting and licensing, which are nowhere mentioned in EO FEMA should also consider means to minimize the additional regulatory costs and provide alternative compliance pathways for impacted businesses. Further, agency flexibility for utilizing a risk-based approach for requiring additional investment in floodrisk management should be provided. Finally, it should be made clear that the Implementing Guidelines apply prospectively and thus the new floodplain management requirements do not apply to existing projects, facilities, operations and activities (e.g., permitting and licensing), modifications, and/or replacement at existing projects, facilities, and operations. III. Uncertainties Regarding the Determination of Floodplains Will Increase Regulatory Burdens and Costs The FFRMS establishes new approaches for determining whether an action is located in a floodplain that will result in increased costs, burdens, and delays for both federal agencies and private sector entities attempting to comply with floodplain management policies. Under EO 11988, floodplain was defined as the 100-year floodplain. Under this straightforward

4 Page 4 definition, FEMA extensively mapped out 100-year floodplains across the country. Federal agencies and the private sector can rely on those maps to efficiently determine whether a proposed project or federal action is within, or affects, a floodplain. The FFRMS three new approaches for determining a floodplain (1) the Climateinformed Science Approach, (2) the Freeboard Value Approach, and (3) the 500-year Elevation Approach are significantly more complicated and inherently vaguer than the 100- year definition. Each approach is discussed in detail in the Implementing Guidelines. It will no longer be sufficient for project proponents to review the FEMA maps to determine whether their proposed project occurs within floodplain boundaries, or even which approach is applicable in a given situation. In most instances, application of the new approaches will require federal agencies and private parties to conduct additional analyses to determine whether the floodplain management requirements apply. Conducting these additional analyses will lead to confusion, regulatory delays, and increased compliance costs. It is critical that the Implementing Guidelines do not duplicate or conflict with existing state floodplain directives, requirements, or policies, including those under the Stafford Act (42 U.S.C. 5170b and 5192) governing disaster response and recovery activities. Delays and costs could be particularly significant if the Climate-informed Science Approach is applied. This approach is the preferred approach and applies methods informed by the best available, actionable climate science. However, it is unclear precisely what types of climate science will be used to determine the floodplain boundaries. The Implementing Guidelines state only that the analysis should use best available, actionable data and provide some examples. However, they do not explain what actionable means, or otherwise establish mechanisms for ensuring a consistent approach across federal agencies. Agencies may adopt differing approaches on an arbitrary basis and consequently increase costs for project developers attempting to comply with multiple, conflicting floodplain determinations and requirements. From the foregoing, it is clear that EO and the Implementing Guidelines simultaneously expand and obfuscate the definition of a floodplain, which will have far-ranging, and perhaps unintended, consequences arising from its regulatory application. In addition to the expected increase in burden and cost associated with undertaking complicated floodplain analyses, several features of EO and the Implementing Guidelines could constrain operations in the electric and natural gas sectors: De Minimis Actions. Many minor utility activities, such as the installation of a power pole or gas service line, may require some level of agency action, but would have only de minimis adverse impacts if located in or near a floodplain. Such minor, but necessary, projects could be inhibited by disproportionately burdensome review procedures required by the Implementing Guidelines. Although the Implementing Guidelines outline some mechanisms for streamlining review processes for repetitive or limited-impact actions, they do not clearly allow, much less encourage, federal agencies to adopt a de minimis action exception. Without such an exception, minor projects will be subjected to unnecessary regulatory review and delay. We request that a de minimis exception be included in any final Implementing Guidelines such that de minimis projects are specifically excluded from the requirements of the Implementing Guidelines. The Implementing Guidelines should make it clear that the

5 Page 5 determination for what constitutes a de minimis impact is simple, straightforward, and timely, as compared with the full review and approval process. If a de minimis exception is not included, we request that the Guidelines provide sufficient flexibility to exclude de minimis projects on a case-by-case basis. Emergencies. In emergencies, restoring electrical and natural gas services to homes, businesses, and public facilities is necessary to ensure human health and safety and provide prompt relief and assistance to communities. Federal agencies may exempt certain activities and facilities from the provisions of the FFRMS for reasons of national security and emergency response. However, to the extent the FFRMS applies to emergency efforts, the required analysis and public review process would paralyze the utilities abilities to restore services necessary for assuring the protection and safety of people and property. Although the Implementing Guidelines allow exceptions to the floodplain management requirements for federal actions, it is not clear that non-federal entities actions would also be exempted. Therefore, we request that the Implementing Guidelines clarify and confirm that emergency actions include those necessary for non-federal entities (e.g., public utilities, municipalities, electrical cooperatives) to restore gas, electric, telecommunications, and other essential services. The Implementing Guidelines should specify that utilities classification of certain service restoration activities as emergencies is not subject to the agency assessment, public review, and comment processes set by the Implementing Guidelines, which would only delay restoration of these critical services to the public. IV. The Burdens Imposed by the FFRMS Are Amplified Across Multiple Regulatory Regimes Affecting Utilities Application of EO s expansive definition of federal action would potentially subject numerous regulatory programs to the requirements of the FFRMS and the Implementing Guidelines. Potentially impacted programs include, but are not limited to, the Clean Water Act ( CWA ), Endangered Species Act, and the Federal Land Policy and Management Act. For example, electric and natural gas utilities must obtain permits under sections 402 and 404 of the CWA for their structures and related infrastructure facilities. Under the Implementing Guidelines, the issuance of such permits or permit modifications could trigger FFRMS compliance. Because the FFRMS expands the geographic scope of floodplains, it necessarily increases the number of CWA permitting actions that will be subject to a floodplain analysis. The FFRMS may also increase regulatory burdens by expanding the scope of federal jurisdiction under other regulatory regimes. For instance, the U.S. Environmental Protection Agency s ( EPA ) and the U.S. Army Corps of Engineers ( Corps ) proposed rule to clarify the definition of the waters of the United States under the CWA extends CWA jurisdiction to adjacent waters, which can include any wetland, water, or feature located within a floodplain or riparian area. 79 Fed. Reg. 22,188, 22,206 (Apr. 21, 2014). Accordingly, under the proposed rule, all waters in floodplains will be jurisdictional for purposes of the CWA. However, the proposed rule does not provide limits for the floodplain areas. Therefore, it is unclear whether or how the FFRMS new definition of floodplain will impact the proposed definition of waters

6 Page 6 of the United States. But, if EPA and the Corps rely on the approaches set forth in the FFRMS for purposes of determining the reach of the floodplain, their jurisdiction under the CWA could expand even further and cover entities and water features that have not previously been subject to CWA regulation. If the FFRMS is applied broadly, there will be far-ranging, and perhaps unintended, consequences arising from the expanded geographic reach of floodplains. In our view, this would be inconsistent with the Administration s stated goals of promoting grid resiliency, generating power from lower greenhouse gas emitting generating sources, constructing new infrastructure, including increased reliance on renewable and natural gas-fired generation, and streamlining regulatory permitting processes for critical energy projects. All of these important goals involve federal actions, and thus may be significantly inhibited or delayed by any floodplain management requirements. By inhibiting actions that may reduce greenhouse gas emissions, EO undermines its own goal of minimizing climate change-related flood risks. V. Recommendations To address the concerns discussed in these comments, FEMA should make the following changes: Revise the Implementing Guidelines to reflect the limited scope of the FFRMS described in EO At a minimum, the Implementing Guidelines should not apply to permitting and licensing. Make clear that the Implementing Guidelines apply prospectively and thus the new FFRMS do not apply to existing projects, facilities and operations and activities (e.g., permitting and licensing) or modifications and/or replacement at existing projects, facilities, and operations. Revise the Implementing Guidelines to clarify that emergency response and recovery work, including activities conducted under the Stafford Act (42 U.S.C. 5170b and 5192), undertaken by non-federal entities is exempt from floodplain management requirements. Revise the Implementing Guidelines to recognize a de minimis exception for projects below a specified size or whose failure due to flood can be demonstrated to be acceptable in lieu of hardening. In the alternative, explicitly allow and encourage federal agencies to create an exception to the application of the floodplain management requirements for de minimis actions. Any other federal agencies considering revisions to their floodplain management standards should do so pursuant to the APA, the Small Business Regulatory Enforcement Fairness Act (SBREFA), Unfunded Mandates Reform Act (UMRA), and other applicable rulemaking requirements. If you have any questions about these comments, please contact at EEI, either C. Richard Bozek (202/ ; rbozek@eei.org) or Henri Bartholomot (202/ ; hbartholomot@eei.org), at AGA, Arushi Sharma Frank (202/ ; asharma@aga.org), at

7 Page 7 APPA, Alex Hofmann (202/ ; ahofmann@publicpower.org ), at NRECA, Dorothy Kellogg (703/ ; Dorothy.kellogg@nreca.coop), or at UWAG, Karma Brown (202/ ; kbbrown@hunton.com). Sincerely, Quinlan J. Shea, III