Few people would conflate floodplain insurance with endangered species. But that conflation is about to rewrite the rules of development in Oregon floodplains, with the help of an unlikely agent, the Oregon Department of Land Conservation and Development.
Whoa, how did flood insurance, fish facing extinction and LCDC get in the same sentence, let alone the same policy discussion? It’s an interesting story, with a potentially devastating punchline.
In 1990, environmental groups sued the Federal Emergency Management Agency (FEMA) and U.S. Fish and Wildlife Service for failure to consult under a section of the Endangered Species Act. Environmentalists asserted FEMA’s National Flood Insurance Program involved “discretionary agency actions” that subjected it to consultation on its impacts on endangered species. A similar lawsuit was filed in federal court in Washington in 2003.
Federal judges in both cases found FEMA must consult. The Washington decision resulted in the 2008 Biological Opinion (BiOp) issued by the National Marine Fisheries Service (NMFS) that included “reasonable and prudent alternatives” for implementing the flood insurance program in Puget Sound. Environmental groups filed suit in 2011 alleging FEMA wasn’t following through.
A similar pattern occurred in Oregon. Environmentalists sued FEMA in 2009. FEMA settled and began consultation with NMFS, which issued its BiOp for Oregon on April 14. It has been a slow-motion bombshell.
The 400-page BiOp concludes that implementation of the national flood insurance program in Oregon could jeopardize the habitat for 16 listed anadromous fish species and adversely affect Southern Resident killer whales. The “jeopardy determination” triggers a need for interim and permanent “reasonable and prudent alternatives” that will be enforced by a local jurisdiction. In Oregon’s case, that means the Department of Land Conservation and Development (DLCD) and cities and counties.
FEMA and DLCD are required to conduct an “education and outreach” effort to affected jurisdictions, which includes “all river sub-basins in Oregon that contain ESA-listed anadromous fish” cited in the BiOp. That applies to all of Western Oregon and central and eastern parts of the state with streams that eventually feed into the Columbia or Snake rivers.
FEMA must revise its regulatory floodplain management criteria, relying on updated mapping, as early as January 1, 2019, with the goal of avoiding, minimizing and mitigating adverse effects of floodplain development.
DLCD has two years to implement its “interim” measures, which include a “no-touch” zone extending 170 feet horizontally from the ordinary high-water mark of perennial or intermittent streams. There also is a broad definition of development, which includes vegetation removal. Repairs or remodeling of existing structures within that zone would be okay, as long as there is footprint expansion.
Lots of questions remain. How to do you calculate the 170-feet when there is a slope? Do restrictions apply to subterranean development, such as water intakes and pipes? How far up mountains and into remote valleys will mapping of flood-prone areas be required? What kind of data will be required to monitor FEMA’s compliance and who will collect it and pay for it? Will projects underway or in the permitting pipeline be affected?
DLCD’s role will include workshops, technical assistance and a model ordinance. The workshops are scheduled to begin this summer. But it also will be ground zero for landowner reaction, which can be expected to be huge, perhaps rivaling the reaction to Measure 37, which entitled landowners to compensation for regulatory takings under Oregon’s land-use laws.
So far, the NMFS BiOp has received little public notice, despite its far-ranging impact. Expect that to change fairly soon when people realize what’s afoot and what it could mean.
(Information in this blog was taken from a Stoel Rives presentation entitled “Oregon Floodplain Regulation in Flux,” featuring comments by attorneys Steve Abel, Sarah Stauffer Curtiss and Greg Corbin)