FEMA flood plain development restriction updates accelerated

A July 15 letter from the Federal Emergency Management Agency announced that Oregon governments will be required to update flood plain development ordinances by the end of the year.

Tillamook County Director of Community Development Sarah Absher discussed the options for updating ordinances and impacts on her department and development in the county with the board of county commissioners on July 17.

Work on updating the requirements for participation in the Federal Emergency Management Agency’s (FEMA) flood insurance program has been ongoing since a 2009 lawsuit by the Audubon Society, which claimed that the program was harming Coho Salmon in Oregon in violation of the National Environmental Policy Act (NEPA).

FEMA commissioned the National Marine Fisheries Service to investigate the claim and in 2016, the fisheries service released a report saying that the flood insurance plan was causing a take of Coho and other salmonids that would lead to their eventual extinction. This meant that FEMA needed to update the requirements of partner governments in the flood insurance plan to comply with federal statute.

But that work was delayed, first by a 2016 suit against FEMA by Oregonians for Floodplain Protection and then by a 2018 congressional delay of three years passed by former Congressman Peter Defazio.

When the implementation stay expired in 2021, progress resumed on updating the program, with a proposal for updates released in 2023. The biological opinion called for the program to update the ordinances for building in flood plains to achieve zero net loss in three areas of floodplain functionality that help preserve fish habitat: flood storage, water quality and riparian vegetation.

Under the new rules, any projects proposed in the 100-year floodplain would have to include mitigation efforts that would lead to no loss in any of the three fish habitat functions to receive building permits. The new regulations would allow agricultural, forestry and fishing activities in the floodplain but would make obtaining permits to place fill, add water impervious surfaces or remove vegetation more difficult.

Since FEMA is a federal agency and not allowed to make land use laws, it will be relying on the localities it partners with in the flood insurance program to implement the new standards. Those partnering governments will need to adopt the ordinance updates to continue participating in FEMA’s National Flood Insurance Program, which covers more than $275 million of property in Tillamook County.

Initially, FEMA officials had said that they would not require governments to update their codes until the proposal had undergone full NEPA review, expected in either 2025 or 2027, but that changed with the July 15 letter. Now, local governments have been told that instead they need to update their ordinances using one of three options provided by FEMA by the end of 2024.

Those options are adopting a model ordinance from FEMA that includes a no-net-loss standard for new development, requiring developers to obtain habitat assessment and mitigation plans for their projects showing that they meet the no-net loss standard or prohibiting development in areas of special flood hazard entirely.

Absher said that she did not see the last choice as a feasible option for the county and that while they had staff that could review habitat assessment and mitigation plans, the added cost was likely to price out many private developers.

While the county’s department of community development has been involved in ongoing discussions with FEMA about the updates and was planning on their eventual implementation, the accelerated timeframe “changes everything for us,” according to Absher.

In the letter, FEMA acknowledged concerns raised by jurisdictions and residents in affected communities but said that the change was to ensure that development complies with federal statute before the update is complete.

County officials must now spring into action to update the ordinance in the allowed timeframe and Absher and her staff need to complete training with FEMA, which they will do in September. Beyond concerns about added work for her department, Absher said that she was also worried about updating ordinances by the deadline, given Oregon’s rigorous land use regime and that she would be asking an attorney about ways to expedite the process.

The updated ordinance will complicate work in areas of special flood hazard, requiring any loss of floodplain functionality to be completely offset elsewhere, with the requirements applying not only to new projects but also maintenance and repair work. At the same time as the update, FEMA has announced that it will no longer be processing floodplain map changes, which had previously allowed people to construct pads elevated out of the flood zone for cow evacuation structures, homes or businesses.

Absher said that she planned to build a new webpage on the county’s website to disseminate information on the ordinance updates as they progress and to update the commissioners regularly. She also said that her staff was reaching out to customers with outstanding permit applications to build in a floodplain with missing documents to alert them to the forthcoming changes and ask for missing material.

Tillamook County Commissioner Erin Skaar said that she was concerned about the changes’ impact on permitting time and disappointed with the change in timeline. Commissioners Mary Faith Bell and Doug Olson echoed Skaar’s sentiments and thanked Absher for sharing the information.

Elsewhere in the meeting, commissioners approved a $62,890 contract with DLR to complete a feasibility study and building inspection of the Bureau of Land Management building on Third Street, for which the county entered into a purchase agreement last week.

The board also approved a first-of-its-kind property tax exemption for the 23-unit Kingfisher Apartments in Pacific City, under a tax abatement program delineated by the state legislature.