FEMA floodplain development restriction updates accelerated

In a July 15 letter from the Federal Emergency Management Agency (FEMA), it was announced that Oregon governments will be required to update floodplain development ordinances by the end of the year.

Work on updating the requirements for participation in FEMA’s 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 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 floodplains 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 within 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.

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.