The National Flood Insurance Program (NFIP) provides flood insurance for homeowners and property owners. The NFIP is administered by the Federal Emergency Management Agency (FEMA). FEMA sets standards for local governments participating in the NFIP, including requirements for local floodplain development ordinances. The Department of Land Conservation and Development (DLCD) is designated as Oregon's NFIP coordinating agency and assists local governments with implementation of the federal standards.
Because the NFIP has a direct effect on development that occurs in areas adjacent to local streams, rivers, and waterbodies, it is important for the NFIP to consider its effects on endangered species. Marine and anadromous species are protected by the Endangered Species Act (ESA) which is administered by the National Marine Fisheries Service (NMFS), a branch of the National Oceanic Atmospheric Administration (NOAA). This branch is 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. The ESA requires federal agencies to ensure that actions they authorize, fund, or carry out do not jeopardize the continued existence of any ESA listed species.
For several years, the NMFS and FEMA have been discussing measures that could be used to 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). In April 2016, NMFS delivered a jeopardy Biological Opinion (BiOp) to FEMA, stating that parts of the NFIP could have a negative impact on the habitat of endangered salmon species.
As Oregon's NFIP coordinating agency, DLCD promotes and supports communication between NFIP communities and FEMA. DLCD provides assistance to local governments as FEMA implements NFIP revisions in Oregon. This assistance may include workshops and presentations, guidance, model codes, grants, and technical assistance.
More information on FEMA's actions and the Biological Opinion is available on the FEMA Region 10 webpage: National Flood Insurance Program & the Endangered Species Act.
Why was the Biological Opinion Written?
Consultation on the NFIP was initiated in Oregon as the result of a settlement agreement to a lawsuit brought against FEMA by several environmental groups. The Endangered Species Act (ESA) requires all federal agencies to make sure their actions don't impact species protected under the ESA. The National Marine Fisheries Service (NMFS) is responsible for implementing the ESA protections for marine species and anadromous fish species. All other federal agencies must consult with NMFS if their actions pose risks to species that NMFS has listed as threatened or endangered.
Federal consultations under Section 7 of the ESA end with the listing agency delivering a biological opinion, or BiOp. The BiOp documents the listing agency's conclusions on whether or not the federal action may harm threatened or endangered species. NMFS published a BiOp in April 2016 which stated that FEMA's implementation of the NFIP could make it harder for ESA listed salmon populations to avoid extinction. It includes suggestions on how FEMA could adjust their program so it won't be as harmful to the species. These suggestions were published as the Reasonable and Prudent Alternatives (RPA).
What does the BiOp Mean for Local Governments?
Local governments that participate in the NFIP will likely need to change their review process for floodplain development permits. FEMA will use its legal authorities under the National Flood Insurance Act to respond to the findings and recommendations in the BiOp. FEMA Region 10 will work with communities in Oregon to determine best ways to implement the interim measures described in the Reasonable and Prudent Alternatives (RPA). FEMA headquarters will review the entire biological opinion to determine best ways to address the full range of recommendations in the RPA.
DLCD expects FEMA Region 10 will develop new guidance for NFIP communities by the fall of 2017. The guidance will describe new NFIP floodplain permit review standards to ensure that local permits do not authorize activities that contribute to the loss of salmon habitat. FEMA's mechanism for assessing compliance with NFIP minimum requirements will not change. Conformance with any new NFIP standards or guidance on the part of NFIP communities will be evaluated during periodic community assistance visits.
Ultimately, NFIP communities in the 31 Oregon 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; and increases of pollutant loading in receiving water bodies. Read DLCD’s official statement to local governments.
What does the BiOp Mean for Property Owners?
Your local government will probably need to change its permit review standards for developing in floodplains. For now, the current standards are still in effect. Potential changes include requirements or incentives to avoid important habitat and standards for mitigating habitat impacts that can't be avoided. As a property owner, you should check with your local government before altering your land or structures in the floodplain.
Outreach Meetings and Presentations
In the summer of 2016, DLCD and FEMA held meetings around the state. At the meetings, FEMA discussed the recommendations they received in the Reasonable and Prudent Alternatives (RPA) section of the BiOp, 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 to local government staff, local elected officials, and professionals familiar with floodplain development permitting procedures.
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 organized workgroups to gather information and to provide recommendations to FEMA Region 10. The workgroups selected priority issues from those raised during the outreach meetings and contributed to the development of several technical memos. The primary issues discussed were:
- potential conflicts 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 but they did not provide advice on state programs, or make recommendations for changes to state laws or administrative rules. If you have questions about the workgroups, contact Amanda Punton at DLCD.
Workgroups organized by DLCD are just one way to submit comments to FEMA. Interested parties are also welcome to contact FEMA staff directly via email: FEMA-R10-ESAcomments@fema.dhs.gov
You can read a summary of the Workgroup Technical Memo, or read each detailed memo linked below:
- Ecological Foundation for Alternative Standards; Technical Memo, April 5, 2017
- Urban Goals Technical Memo; March 22, 2017
- Rural Lands, Technical Memo; March 30, 2017
- Measure 49, Forest Practices, and Moratoria Technical Memo; March 30, 2017
- Regulatory Takings Technical Memo; March 28, 2017
- Mapping 10-Year Flood Zone, Technical Memo; February 23, 2017
- Stormwater Management Technical Memo; May 9, 2017
- Local Programmatic Alternative to RPA Element 2 Technical Memo; April 19, 2017
- Criteria from Other ESA Consultations Technical Memo; April 10, 2017
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 NMFS.