Background, Proccess & Issues

Oregonians for Floodplain Protection has been following and intervening in FEMA’s development of new regulations affecting the National Flood Insurance Program since 2016.

The following explains what led to FEMA’s implementation plan and the potential impact the plan could have on communities in 30 affected Oregon counties.

The National Flood Insurance Program

Since 1968, The Federal Emergency Management Agency has worked with local communities to make flood insurance available and affordable. The National Flood Insurance Program (NFIP) is designed to respond promptly, so that property owners and renters affected by floods in participating communities can begin recovering quickly.  It is also the only way many property owners can obtain flood insurance – something many lenders require for mortgages or other financing.

Local governments that meet FEMA requirements are able to participate in the NFIP so that residents and property owners can get federal flood insurance.

History of the current FEMA proposal

A 2009 lawsuit spurred the National Marine Fisheries Service (NMFS) to study how land uses in areas covered by the NFIP affect fish listed under the Endangered Species Act (ESA) in Oregon. In 2016, the agency issued a document called the Oregon NFIP Biological Opinion (BiOp). It found that current practices jeopardize 16 ESA-listed fish species, as well as the killer whales that rely on healthy populations of these fish.

NMFS then recommended that FEMA establish new requirements that would lead to “no net loss of floodplain function” in designated areas, a vague and poorly defined directive.

In 2021, FEMA issued a draft implementation plan to incorporate ESA protection into its NFIP, called the Implementation Plan for NFIP-ESA Integration.

Under the draft proposal, local governments would be required to develop extensive new regulations, expanding the definition of flood plains and further limiting land uses and activities on affected property. The proposed new standards would affect land uses in more than 230 communities in 30 of 36 Oregon counties, affecting _________thousands/millions) of people, even in places that would not expect to fall under floodplain restrictions.

Failure to comply could deny federal insurance access to entire communities.

In March of 2023, FEMA opened a public scoping process to identify and evaluate potential effects of the plan on these 230 communities currently eligible for NFIP. These include potential ecological, economic, social and health effects. FEMA accepted written comments through June of 2023.

According to FEMA, it received 960 comment letters. Every comment opposed the plan or criticized one or more aspects of the proposed action.

FEMA is currently creating a Draft Environmental Impact Statement, to be issued in the summer of 2024, to be followed by a Record of Decision early in 2025 and a final published plan in the spring of 2025.

Despite nearly 100 percent opposition to parts or all of the proposed plan, and despite ongoing discussions with local government staff who have frequently explained their concerns, FEMA has not shown us that it intends to amend the plan in any way.  FEMA plans to require communities to begin implementing this plan in fall of 2025

Key elements of the proposed plan

In 2021, FEMA introduced its draft Implementation Plan for NFIP-ESA Integration, indicating what it will require of local governments to continue participating in the NFIP.

The plan focuses on preserving and restoring three main floodplain functions:

  • Flood water storage: limiting new fill or requiring compensatory flood water storage to offset any  new fill;
  • Water quality: limiting new impervious surfaces and heightening stormwater requirements, (roads? Parking lots)
  • Riparian vegetation: restricting removal within 170-feet of a water feature.

At this point, many of the recommendations in the proposed plan are vague. These make it difficult to respond to FEMA with good data or even examples or fact-based arguments. But this lack of clarity requires affected Oregonians to focus on worst-case scenarios.

In addition to limiting land uses in flood plains, FEMA may expand the size of the Special Flood Hazard Area (the 100-year-floodplain). That will require even more property to be included under FEMA restrictions than before and will reduce the potential for many types of activity in large portions of affected counties.

At this point, we know:

  • New development standards will restrict land divisions within the 100-year floodplain and steer development away from those areas and allow for only one unit in each existing parcel providing it meets the three stated floodplain functions.
  • A riparian buffer zone will prevent development within 170 feet of waterways within the 100-year  floodplain (compared to what?)
  • The proposed plan will limit or discourage the use of fill-in floodplains to elevate structures.
  • New standards will prevent or limit the development of impervious surfaces such as roads, driveways or concrete pads within 100-year floodplains.
  • The proposed plan will require mitigation of any remaining development impacts in these areas.
  • The plan will burden local governments with much of the analysis, assessment and enforcement that previously was FEMA’s responsibility.

Given the extent of new areas to be included in the draft implementation plan, the types of land uses and projects that may be restricted and the lack of clarity about particular facets of the plan plus the additional burden and cost on local government, property owners, business operators, farmers, ports and local governments are extremely concerned about the plan’s impacts. 

After many discussions with FEMA,  local government representatives believe that the new regulations mean within a floodplain there will be:  no, building or making improvements to a home; limits on farm operations; no building a business or a parking lot; and no building or maintaining roads or other essential infrastructure.i

It means a bleak future for Oregon’s communities.

Issues of Concern 

The primary concern to all involved in this process is the potential loss of access to federal flood insurance. “No flood insurance” may mean the end of some established communities.

Lack of access to the NFIP could cause irreparable damage. It could mean the inability to rebuild homes, businesses, agricultural facilities, roads, sewers and water systems, and even schools and hospitals.

Development patterns and land uses in some of these communities date to the 19th century, and most have been in place for decades. It is incomprehensible to eliminate this important safety net for private property and long-established communities based on a new layer of regulation that is poorly crafted – and likely is not necessary.

These proposed restrictions will affect a huge percentage of Oregon property, private and public land and economic value. They involve 30 out of 36 counties and more than 230 communities currently participating in the NFIP. 

And the ripple effects will touch those not living in or near floodplains. Restrictions on agriculture, shipping and other transportation, the tourist economy and more will harm all of us in Oregon, regardless of what county we live in.

Specific land uses and activities

Testimony from stakeholders across the state has focused on specific types of land uses and activities that could be harmed by the proposed plan.

  • Housing. Prohibitions on new land divisions and measures to steer new development away from 100-year-flood plains could be serious deterrents to Oregon’s housing goals  – while our state is suffering a traumatic housing shortage. 
    Lack of housing contributes to high housing costs – with a spiraling effect that reaches nearly every place in the state, and leads to poverty, homelessness and a breakdown of public safety.. New housing is Oregon’s highest priority – and represents the Oregon governor’s entire agenda for the 2024 Legislature. Any new regulations should support – not impede—the state’s housing goals.
  • Recreation and tourism. Outdoor recreation is a major reason that people move to coastal and riverfront areas, and tourism is the primary economic driver of many of these communities. The draft implementation  plan raises alarms about the impact on both.
    For example, will new rules limit maintenance of park structures, like bathrooms and picnic areas? Will they restrict maintenance or installation of boat ramps? And what will be the effect on the many tourism-related facilities in floodplains, from guesthouses and restaurants to RV parks, bait and tackle shops and water sport equipment sales?
  • Agriculture. Oregon was pioneered and settled by farmers. Throughout Oregon’s history, agriculture has been a major economic force, so the lack of clarity around agriculture practices is of great concern. While the proposed plan states exceptions for “general agricultural and silvicultural practices,” and exempts some activities from mitigation, the language is unclear as to what qualifies as “normal soil disturbances,” which are exempt, and “filling and grading,” which are not. Farmers rightly worry that certain routine farm activities could be subject to expensive or even unattainable  mitigation requirements.
  • Roads and public infrastructure. The plan’s “no net loss” standard is both undefined and tremendously broad. It appears to severely limit communities’ ability to develop streets, roads, highways and other public infrastructure in the floodplain, as well as to maintain and make improvements to them. Communities are concerned about the impact on water, sewer and other utilities, drainage systems and even the ability of fire departments to build fire houses where necessary to protect public safety. Further, “no net loss” implies mitigation is possible – but where?
  • Ports. The draft implementation plan is not clear whether new regulations will limit dredging in federal navigation channels, marinas and other areas critical to marine safety and port operations. Since one in six Oregon jobs is connected to ports and related business, restricting in-water port activities would present serious risks to Oregon’s economy.     
  • Social justice. Often, floodplains have lower land values than upland areas, and therefore many of the people living in these areas are low-income and/or minorities and immigrants. New restrictions may disproportionately affect these residents and their ability to remain in these communities. This problem could become worse if new restrictions discourage new job-creating businesses or worse, cause existing businesses to cut back.
    A major problem in tourist communities is lack of affordable housing for employees in the hospitality industry and related retail and service providers. New building restrictions could make this situation worse, further hurting both low-income workers and local businesses.
  • Falling property values followed by a loss in local government revenues. Many communities already are struggling to fully fund schools, police, libraries and other essential services. Reduced revenue from property taxes, as well as local lodging taxes, etc., could be disastrous for the provision of essential services,  safety and quality of life – while piling more costs on municipal governments  throughout Oregon.

General comments about approach and process

Testimony from land use professionals, state agencies, and private organizations and individuals have brought to light serious overarching concerns. They illustrate the difficulty stakeholders are having in understanding the scope, the specifics and the need for the proposed plan.

The message FEMA should hear is that poorly done does not mean “keep going.”

 Problems cited in written comments and testimony include:

  • Lack of resources promised by FEMA but not delivered. These include a model ordinance, technical  guidance and eight other documents necessary for implementation.
  • Ambiguity and lack of definitions, from the use of new, undefined metrics like “no net loss” and “beneficial gain,” to the vague meaning of terms like “development,” and “compensatory storage.”  Measurement parameters are vague, and it’s unclear which activities could be affected. Local government staff who met personally with FEMA have not been able to get clear definitions.
    The result is rules that are unworkable and unenforceable, with potentially devastating results from either “doing” (trying to add burdensome new levels of regulation) or “not doing” (losing access to the NFIP).
  • Additional regulations may be unnecessary. FEMA has already enacted new regulations toward ESA protection since the original 2016 study was issued. The effects of these have not been measured and are not taken into account in the draft implementation plan. In addition, as we all know, local governments apply many other state and federal regulations to protect waterways and floodplains. FEMA has not analyzed how existing regulations overlap,  work with or conflict with its draft  plan.
  • An unprecedented approach to ESA protection. Specifically tying protection of threatened and endangered fish to the NFIP is unprecedented – and seems to be a roundabout and complex way to achieve ESA goals
     
  • Conficts with long-range land use planning. Oregon’s comprehensive planning laws balance protection of natural areas with community needs for housing, commercial and industrial development. Long-established urban growth boundaries limit developable land. Further clumsy restrictions could seriously restrict a community’s development options or require lengthy, expensive processes to redraw their Urban Growth Boundaries – affecting virtually all allowable activity.
  • Undermines and erodes the authority of Oregon’s state agencies, which have led the nation on environmental protections and land use laws for decades.
  • Vague, potentially unworkable, mitigation requirements. The proposed plan’s mitigation principles are vague and not understandable by local government planners. Mitigation options required by the plan may not be available, may be unworkable and may be cost-prohibitive.
  • Failure to consider ongoing restoration efforts. For several decades, farmers, environmentalists, local governments and others have worked closely to protect and restore riparian lands. The proposed plan ignores these improvements and disregards successful voluntary community efforts.
  • Burdens on local governments. FEMA is shifting the burden of floodplain protection to local governments. The agency is expecting cities and counties – chronically underfunded and understaffed – to compare the proposed plan to the many state and federal laws already included in land use permitting, then design and implement new regulations, which could severely limit private development, public services – and the tax base. This is a whole new layer of unfunded federal mandates that is unjustified and harmful.
  • Why Oregon specific? FEMA is looking at a nationwide revamp of its flood insurance program and other emergency programs. It doesn’t make sense to create new regulations only for Oregon now in advance of a national review.    

Legal questions and more detailed comments

Testimony submitted by many jurisdictions, organizations and individuals points to a variety of legal problems and inconsistencies in FEMA’s proposed plan, as well as other objections.

To read testimony submitted during FEMA’s scoping process, click here.

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