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National Flood Insurance Program and
Endangered Species Act
Matt Crall
Amanda Punton
Dave Lentzner
Land Conservation and Development Commission
September 22, 2016
• Background• National Flood Insurance Program (NFIP)• Endangered Species Act (ESA)
• Reasonable and Prudent Alternative (RPA)
• DLCD Role• Regional outreach meetings• Workgroups• Interagency coordination
Overview
• Federal, State and Local Roles
• Middle-of-the-Road approach• Don’t Panic• Don’t Ignore
• Opportunity• Risk Reduction• Protect Habitat• Habitat Mitigation
Themes
• Local governments choose to participate
• FEMA maps hazards
• Local development regulations
• Community Assistance Visits (CAVs)
NFIP
• Counties: All 36
• Cities: 220 out of 241
• Tribe: 3 out of 9
• Over 99% of population
• DLCD Floodplain Coordinator
NFIP - Oregon
• Difference from Sage Grouse
• National Marine Fisheries Service (NMFS)
• Candidate• Threatened• Endangered
ESA
• General prohibition• Do not “take”
• Consultation requirement federal agencies• Program• Funding• Regulating
• Biologic Assessment of Proposed Action
• Biological Opinion (BiOp)• Jeopardize survival?• Reasonable and Prudent Alternative (RPA)
ESA
• Lawsuit (2009)• Insurance increases development• FEMA sets local development standards• FEMA has not consulted
• Settlement (2010) - Agreed to consult
• Consultation• Internal federal process• Limited DLCD involvement
• BiOp (April 2016)• Jeopardy conclusion• RPA
NFIP - ESA
• Interim measures:• Reduce impact of development on
floodplain function
• FEMA will direct local governments to adopt
• Implement “promptly”
Reasonable and Prudent Alternative
• Primary impacts to floodplain functions• Loss of flood storage• Addition of impervious surface• Removal of vegetation
• No net loss in SFHA• Achieved through mitigation
• Beneficial gain in 170’ RBZ• Achieved through mitigation
Interim Measures
Reasonable and Prudent Alternative
• Long Term Measures:
• Revised NFIP mapping protocols
• Revised NFIP floodplain management criteria
• 8 years+ for FEMA to implement
• Other Measures:
• Notify local governments• RPA• Anticipated new standards for managing development
• Increase frequency of Community Assistance Visits (CAVs)
• Require reporting from local governments
Reasonable and Prudent Alternative
The Biological Opinion is based on the fundamental misconception that private floodplain development is attributable to, or caused by FEMA through the implementation of the NFIP - and should be treated as federal action subject to Section 7 consultation requirements under the ESA.
FEMA does not agree with NMFS' jeopardy determination, which is based on the effects of private floodplain development on ESA-listed species and designated critical habitat, and not the effects of the of the NFIP…
It is questionable whether a number of program changes required by the RPA, such as the near absolute prohibitions on development in large portions of Oregon communities, are within FEMA's legal authority to implement.
FEMA to NMFS - May 4, 2016
Nevertheless, under the ESA, federal agencies must utilize the legal authorities they do have for the benefit of endangered species. . . .
FEMA will work to implement all the RPA requirements that it has the legal authority to implement.
Given the central role communities and citizens play in reducing their localized flood risk, FEMA will seek the input of state, local and tribal governments and other key partners in developing and implementing program changes made pursuant to the RPA requirements.
FEMA to NMFS - May 4, 2016
From: Michael M. Grimm (FEMA) To: Kim Kratz (NMFS)
May 4, 2016
• The interim measures prohibit most development within 170 feet of all streams
• Riparian Buffer Zone (RBZ) does not extend outside SFHA on Flood Insurance Rate Maps
• “Activities that result in a beneficial gain for the species” is any development with habitat restoration to more than offset the impact.
Fact Checking
• The RPA directs FEMA to regulate agriculture and forestry as “development”
• The RPA adds “removal of vegetation” to the NFIP definition of development
• NMFS has since clarified this only means vegetation removal that results from development, not from ongoing ag and forestry operations
Fact Checking
• If fully implemented the RPA would be a near absolute prohibition on development in large portions of Oregon communities
• RPA: Only water dependent uses and restoration in “high hazard” areas
• DLCD: Current zoning and parcelization must be recognized as local codes are amended
Fact Checking
• FEMA is not a land use agency
• FEMA is a hazard management agency• FEMA’s objective: Reduce the risk of loss of life
or property
• Oregon land use system includes floodplain management in comprehensive planning
Fact Checking
Regional Outreach Meetings JUNE 27 – JULY 28
10
1
2
94
5
6
7
8
3
Meeting Attendance• Roughly 230 attendees
• Local Planning, Engineering, or Building Officials (all 10 meetings)
• Local Elected Officials (7)• State Legislative Staff (2)• Federal Legislative Staff (8)• Interest Groups (7)• Consultants (6)• Other State Agency Staff (6)
Meeting Presenters
• DLCD• Amanda Punton• Christine Shirley
• FEMA• Scott Van Hoff• Justin Craven
• NMFS• Bonnie Shorin• Eric Murray
• FEMA - Overview• Clarifying roles and timeline
• DLCD – State Role• RPA• NFIP
• NMFS - Scientific Reasoning• Floodplain habitat functions
• Biological Opinion• RPA Interim Measures
Meeting Organization
• 338 Comments or Questions
• Clarifications• What do the Reasonable and Prudent Alternatives mean?
• Concerns• How will communities be able to fulfill future requirements?
• Opportunities • How might communities implement measures locally?
Meeting Comments
Interim Measures Input
ConcernsOpportunities
Clarifications
Workgroups
State Agency Coordination
Aggregated Topics
Tribal Governments
Workgroups• September – March• Steps
• Create Work Plan• Create Reports• DLCD Review• DLCD Report to FEMA
Local Permit
Process
Regulatory Issues
Mapping
Habitat Assessment & Mitigation
State Agency Coordination
• Continuing Discussion
• Concerns
• Opportunities
Oregon Land Use Planning Goals
• Goal 5• Rulemaking to streamline local adoption
• Goal 7• No LCDC rulemaking on floodplain regulation
• Goal 9• Goal 10• Goal 14
• Impacts?
• DLCD’s website has the best information
• FEMA and NMFS documents & letters• Explanations• Presentations• Updated
• We started this rumor and fully stand by its veracity
Fact Checking
• www.oregon.gov/LCD/Pages/NFIP_BiOp.aspx
• How to Read the RPA
• NOAA Fisheries BiOp Fact Sheet and FAQ
• Clarification on 170’ RBZ and definition of “development”
• NOAA Fisheries BiOp - RPA, only
• FEMA's 60-Day Notice Letter to Local Governments/Tribes
• Governor Brown's Letter to FEMA
• Stay tuned for RPA errata sheet
For More Information
More Information
http://www.oregon.gov/LCD/Pages/NFIP_BiOp.aspx
