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Biological Opinion on the NFIP in Oregon

Overview

For several years, the National Oceanic and Atmospheric Administration Fisheries Service (NOAA-Fisheries) and the Federal Emergency Management Agency (FEMA) have been working together to identify measures that will reduce negative impacts from the National Flood Insurance Program (NFIP) on salmon, steelhead and other species listed as threatened under the Endangered Species Act (ESA).

The federal National Flood Insurance Program (NFIP) provides flood insurance for homeowners and property owners generally. In Oregon, 260 cities and counties and three Indian tribes participate in the NFIP.

The NFIP is administered by FEMA. The Department of Land Conservation and Development (DLCD) is designated as Oregon’s NFIP coordinating agency. FEMA sets standards for local governments participating in the NFIP, including requirements for local floodplain development ordinances. DLCD assists local governments with implementation of those standards.

For marine and anadromous species the ESA is administered by the National Marine Fisheries Service (NMFS), a branch of NOAA also known as “NOAA-Fisheries”. The ESA provides for the conservation of threatened and endangered plants and animals and the habitats in which they are found; and requires federal agencies to ensure that actions they authorize, fund, or carry out do not jeopardize the continued existence of any ESA listed species.

Department of Land Conservation and Development – Statement to Local Governments

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Workgroups

FEMA has committed to "seeking the input of state, local and tribal governments and other key partners in developing and implementing program changes made pursuant to the RPA requirements."  DLCD has organized workgroups to gather information that will be used to provide recommendations to FEMA Region 10.  Workgroups selected priority issues from those raised during the outreach meetings held around the state and contributed to development of several technical memos on these issues. Workgroups provided information on: potential confilcts between a federal program and state laws; workable approaches to assessing habitat impacts and documenting mitigation measures; and the capacity of local governments to take on new review and enforcement tasks. Workgroup input was provided to DLCD staff.  Workgroups did not provide advice on state programs or make recommendations for changes to state laws or administrative rules.

Technical Memos: 

Technical Memo Summary Table

These memos have been shared with FEMA.  They will also be used to inform any recommendations the state may develop and submit to FEMA or NOAA fisheries.  If you have questions about the workgroups, contact Amanda Punton at DLCD.

Workgroups organized by DLCD are only one avenue through comments can be provided to FEMA. Local governments, tribal governments, and other interested parties are also welcome to contact FEMA staff directly:
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Outreach Events

NFIP BiOp and RPA briefing to LCDC, September 22, 2016

Staff Report

Slide Presentation

Outreach Meetings 2016

DLCD and FEMA held meetings around the state this summer. At the meetings, FEMA discussed with attendees the recommendations they received in the Reasonable and Prudent Alternatives (RPA) section of the biological opinion, and the development of an implementation plan. The focus of the meetings was the interim measures recommended in Element 2 of the RPA.  NOAA Fisheries staff attended the meetings to explain the intent of the interim measures.  These meetings were targeted at local government staff, local elected officials, and professionals familiar with floodplain development permitting procedures.  DLCD used questions and comments received during the meetings to inform the organization of FEMA sponsored workgroups.

Albany​ ​June 27 Portland July 25​
North Bend​ ​June 28 Salem July 26​
White City June 29​ ​Springfield July 26​
Tillamook July 14 The Dalles July 27​
Oregon City July 15 La Grande July 28​

 

 FEMA Slides for June - July Outreach Meetings

Previous Online Information Sessions

  • May 17, 2016 for local elected officials
  • May 11 and 12, 2016 for local planners and stakeholders

May 2016 Presentation Slides

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History

In July 2010 the Federal Emergency Management Agency (FEMA) entered into a settlement agreement with Audubon Society of Portland, North West Environmental Defense Center, the National Wildlife Federation, and Association of Northwest Steelheaders. FEMA accepted the concerns raised by the environmental groups and agreed to initiate consultation with the National Marine Fisheries Service (NMFS). The interagency consultation process between NMFS and FEMA, which followed, is required by section 7 of the Endangered Species Act (ESA) and is intended to ensure that federal actions do not contribute to habitat loss or increase the risk of species extinction. A biological opinion (or BiOp) is the document produced as a result of the process.
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Biological Opinion

On April 14, 2016 the National Marine Fisheries Service (NMFS) delivered to the Federal Emergency Management Agency (FEMA) a jeopardy biological opinion (BiOp) on implementation of the National Flood Insurance Program (NFIP) in Oregon. The BiOp includes a set of recommendations for reducing the impact of NFIP related development on salmon.

A BiOp is a scientific judgment about the potential effects of a federal action on an ESA listed species. Although the document is called an “opinion,” it has the force of a decision document. FEMA must respond to the findings in the BiOp. This BiOp is a “jeopardy opinion” to which NMFS has attached a set of recommendations, or “reasonable and prudent alternatives” (RPAs) to FEMA’s February 2013 proposal for reducing the impacts of the NFIP on salmon. Essentially, NMFS has concluded that development in floodplains displaces important habitat, which salmon utilize during flood events, and contributes to instream water quality and hydrologic conditions that are unfavorable for fish.

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The RPA and Impacts to the NFIP

FEMA will begin to implement measures described in the various elements of the RPA immediately. In some cases FEMA may choose to substitute strategies that are equally effective at avoiding jeopardy. Some RPA elements concern measures that FEMA can implement directly, such as new floodplain mapping schedules. Other RPA elements anticipate local actions by NFIP communities.

The RPA describes an interim phase that calls for FEMA to direct NFIP participating communities to implement new floodplain development permitting standards based on existing guidance and administrative tools with substantially enhanced technical support from both FEMA and NMFS. The second phase calls for FEMA to revise its floodplain management regulations and/or associated guidance and technical documents as needed to implement the RPA’s mapping, development, mitigation, and reporting standards. The RPA lays out a schedule that begins immediately and calls for a fully implemented program in 5 years.

Ultimately, NFIP communities in the 31 counties with ESA listed salmonids will need to increase habitat protections. Development that degrades floodplain functions includes: clearing of native riparian vegetation; increases in impervious surface; displacement or reduction of flood storage via fill or structures; interruption of habitat forming process; increases of pollutant loading in receiving water bodies; and increases in stormwater. The new expectations will be described by FEMA guidance, which will be drafted over the next several months.

How to read the RPA

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What NFIP Communities can expect

FEMA will use its legal authorities under the National Flood Insurance Act to respond to the findings and recommendations in the BiOp and RPA. They will develop options for implementing the interim measures described in the RPA that are considerate of state law, local authorities and local staffing resources. FEMA will also review the entire biological opinion to determine best ways to address the full range of recommendations in the RPA.

Based on statements made at outreach events held during the summer of 2016, DLCD originally expected FEMA to develop new guidance for NFIP communities, describing how floodplain development permits should be issued to avoid loss of salmon habitat, by fall of 2017. This timeline has been complicated by a lawsuit filed in federal court in June 2017, which challenged several findings in the BiOp and FEMA's implementation of the RPA. While FEMA continues to work on new guidance, it is not known when it will be released. FEMA's mechanism for assessing compliance with NFIP minimum requirements will not change; as new NFIP standards or guidance come on line NFIP community compliance will be evaluated during periodic community assistance visits.

The Department of Land Conservation and Development will promote and support communication between NFIP communities and FEMA and provide assistance to local governments as FEMA implements NFIP revisions in Oregon. This assistance may include:

  • Workshops and presentations
  • Guidance
  • Model codes
  • Grants
  • Technical assistance

Information on FEMA's actions related to the consultation and the Biological Opinion are available from the FEMA Region 10 webpage, National Flood Insurance Program & the Endangered Species Act.

 

 

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Contact Information

For more information, please contact Amanda Punton, Natural Resource Specialist, at (971) 673-0961 or Chris Shirley, NFIP Coordinator, at (503) 934-0027.

FEMA comment/question email: FEMA-R10-ESAcomments@fema.dhs.gov

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