Every spring threatened and endangered juvenile salmon and steelhead gradually swim from spawning
grounds in the upper reaches of streams and rivers down to the ocean. During floods juvenile fish seek
refuge from turbulent waters in floodplains. Since the floodplains provide temporary habitat for the
listed fish, floodplains are thus subject to the Endangered Species Act (ESA). Floodplains are managed
at the federal level by the Federal Emergency Management Agency (FEMA) through the National Flood
Insurance Program (NFIP), which was geared toward protection against flood damage. To implement NFIP,
local governments follow FEMA’s direction in order to qualify for federal disaster relief so that members of
the community may receive discounted flood insurance.
FEMA traditionally allowed filling and construction in the floodplain, as well as lower-impact
development such as the construction of sports fields, sewer plants, industrial yards and roads, which alter
the land but do not have major effects on flooding. Regulatory attention at the permitting stage focuses on
determining where the 100-year flood elevation and the boundary between the floodway and floodplain are
on the site. Flood habitat issues have not traditionally been part of FEMA mapping and regulation since
other federal agencies regulate in-water work and riparian habitat is regulated at the state and local level in
most states, including Oregon and Washington.
In 2004 several conservation groups sued FEMA in federal district court in Washington State, alleging
the NFIP facilitates the adverse modification of floodplain habitat around Puget Sound, in violation of
Section 7 of the ESA, which says federal agencies may not jeopardize listed species or adversely modify
their habitat. The court held that FEMA needed to formally consult with the National Marine Fisheries
Service (NMFS), obtain a biological opinion (BiOp), and then (by implication) implement revised NFIP regulations consistent with the BiOp. NWF v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004). The
consultation began in January 2007 and the BiOp was published in September 2008.
In the BiOp, NMFS concludes the NFIP adversely modifies critical habitat for two species of salmon
and that it jeopardizes the continued existence of two other species of salmon, one species of steelhead
and one species of killer whales. The BiOp requires extensive changes to the NFIP. The NFIP, in turn, will
require changes in local regulations, and new regulations are being introduced in Washington. Because
some Oregon fish species are similarly endangered, the plaintiff conservation groups filed a federal suit
against FEMA in Oregon in June 2009, which settled in July 2010, and requires FEMA to formally consult
with NMFS by July 2011, which has now begun. Audubon Society of Portland v. FEMA, No. 3:09-CV-
729(HA) (D. Or. July 12, 2010).
The Oregon BiOp is getting started four and a half years later than the Washington BiOp, but FEMA and NMFS have let it be known they will essentially adopt the Puget Sound BiOp and NFIP changes in
Oregon.
These BiOps will create a new layer of federal land use regulations governing riparian habitat in the
upland area where there is interplay between the aquatic and terrestrial environments. Federal agencies
routinely regulate “in-water” projects, including impacts to wetlands under the Clean Water Act; but in
Oregon, the state regulates riparian areas through Goal 5 and OAR 660-023-0090, while local governments
do so through their zoning and land use regulations.
FEMA’s new foray into riparian habitat regulation is premised upon the ESA and the Oregon and
Washington BiOps. Section 4 of the ESA authorizes federal regulation of local land use only through
a designation of critical habitat. and only after a federal agency analyzes the economic impact of the
designation. Previously, NMFS designated the stream bed and banks as critical habitat but did not designate
any areas upland of the ordinary high water line. In order to designate riparian upland areas as critical
habitat, Section 4 requires a new analysis of the economic impacts of designating the buffers as critical
habitat. Neither FEMA nor NMFS have followed the rulemaking procedures in Section 4 or undertaken
the required economic analysis to expand the lateral extent of the critical habitat to include the buffer areas
designated in the BiOp. As noted in the Model Ordinance Commentary, the setback dimensions were set by
the Biological Opinion and came from the Washington Department of Fish and Wildlife.
In other words, the areas subject to the setback requirements in the BiOp and the Model Ordinance
(Ordinance) have never been designated as critical habitat pursuant to the ESA. FEMA acknowledges that it lacks authority to modify critical habitat designations, which can only occur through formal rulemaking
as proscribed in Section 4. However, it feels compelled to comply with the BiOp and start regulating these
areas and indicates it “alerted” NMFS about the concern that it may lack authority to do so.
The Puget Sound BiOp
The BiOp analyzed three components of the NFIP, which the district court found were discretionary:
floodplain mapping; minimum floodplain management criteria; and the Community Rating System (CRS).
MAPPING
FEMA maps the floodplain based on expected water levels, but does not account for fish
habitat within floodplains. The BiOp determined the maps are sometimes outdated and inaccurate, and
underestimate flood hazards and risks - in part because they do not account for the cumulative effect of
development over long time periods or for climate change.
The BiOp noted how map revisions contribute to alteration of the floodplain when a property is filled
or protected by a levee; and FEMA remaps it from being within the 100-year floodplain to being outside
of it, reducing habitat area. It found the mapping program fails to protect the natural features in riparian
areas or the Channel Migration Zone (“CMZ”) that provide important habitat functions. In short, FEMA’s mapping program ignores habitat values and functions, which results in a loss of both.
MINIMUM FLOODPLANE MANAGEMENT CRITERIA
The BiOp examined habitat elements commonly found in floodplains that are essential to the species,
such as spawning gravels, accessible side channels
and food availability - because those elements are
essential for species survival and recovery. It found
that placement of fill in the floodplain displaces
fish habitat and development in the filled areas
drives the placement of additional fill for supportive
infrastructure. Increased pollution, stormwater runoff
and vegetation removal are other adverse effects.
The NFIP influences the way flood control
structures are built, operated and maintained. Levees
diminish floodplain storage and confine the river so
water no longer flows into off-channel habitat areas. FEMA will remove the areas protected by the levee
from the floodplain. Confinement also increases
gravel scour and displaces juvenile fish. The U.S.
Army Corps of Engineers (COE) prefers that levees
not be covered with vegetation, especially trees.
FEMA relies on the COE vegetation standards,
which lead to the removal of riparian vegetation
that would remain in place if allowed by the NFIP;
so the BiOp attributes adverse effects of removing
levee vegetation to the NFIP. The overall effect is
reduction of habitat and a conversion of habitat to
channels that are only suitable for migration.
COMMUNITY RATING SYSTEM (CRS)
The CRS provides local governments a
number of regulatory programs to reduce flood
risks; and the more programs implemented by a
local jurisdiction the higher the CRS score. For
higher scores, FEMA offers lower flood insurance
rates. For example, the CRS awards points based
on the number of insurable buildings that have been
upgraded for flood protection. The BiOp notes that
flood protection methods – including (among many
others) levees, floodwalls and channel modifications
FEMA Example Map – that are presently encouraged by FEMA are, in fact, federal agency actions which harm or eliminate fish habitat.
To summarize, the BiOp concludes that both the mapping and minimum floodplain criteria elements
provide incentives, technical guidance and recognition that encourage the placement of fill in floodplains.
This adversely affects floodplain habitat and listed species. It concludes that the CRS likewise creates
fiscal incentives for activities, such as fill and diking, which harm or displace habitat. The BiOp asserts the
NFIP will continue to reduce the amount of habitat, further degrade remaining habitat, and limit species’
recovery, and that cumulative effects not accounted for in the NFIP will compound habitat loss.
THE NMFS REASONABLE AND PRUDENT ALTERNATIVES
Element 1 – Notification
FEMA is to notify NFIP-participating communities that development consistent with the NFIP jeopardizes listed species. The notices are to suggest methods for protecting species, including a voluntary
temporary moratorium on floodplain development that adversely impacts species or their habitat, and also
to explain that when jurisdictions adopt the Ordinance in RPA Element 3 (discussed below), they will be
ESA compliant.
Element 2 – Mapping
FEMA must ensure that Letters of Map Change caused by manmade alterations are only approved
when the alteration either avoids habitat functional changes or is mitigated. Map changes based on prior,
unauthorized fill are not to be approved.
Each year FEMA selects a limited number of watershed flood maps for updating. The selection process
is based on criteria that include factors such as anticipated flood risk. FEMA’s criteria for selecting maps to
update must now include the presence of listed species.
FEMA must revise flood modeling to account for future, cumulative effects from anticipated land-use
changes and United States Geological Survey (USGS) climate study information. Local communities are
also encouraged to evaluate the risk of flooding behind existing levees given anticipated future cumulative
effects.
Element 3 - Floodplain Management Criteria
This element of the BiOp calls for the adoption of a Model Ordinance (Ordinance). It requires FEMA
to tighten the NFIP minimum criteria to prevent or minimize the degradation of channel and floodplain
habitat, including the following measures, among many others:
1. Allow no development in the floodway, the CMZ plus 50 feet, and the Riparian Buffer Zone
(RBZ); or
2. Demonstrate that proposed development in the floodway, the CMZ plus 50 feet, and the RBZ
does not adversely affect water quality, water quantity, flood volumes, flood velocities, spawning
substrate and/or floodplain refugia for listed fish.
3. In addition to either 1 or 2 above, either:
a. Prohibit development in the 100-year floodplain; or
b. For proposed development within the 100-year floodplain but outside the RBZ, any
loss of floodplain storage must be prohibited or mitigated (presumably through a balanced
cut and fill) in a manner that provides habitat and prevents fish stranding. Indirect
adverse effects to stormwater, riparian vegetation, bank stability, channel migration,
hyporheic zones, wetlands, etc. must also be mitigated.
4. Expansions of existing structures may not increase the footprint more than 10 percent, which
is calculated cumulatively, and must mitigate for any adverse effects. New structures must be
set back 15 feet from the RBZ.
Element 4 - Community Rating System
The BiOp compels FEMA to reduce CRS points for structural changes, and award points for moving
levees as far away from the channel as possible and restoring riparian and floodplain function. Points
will be awarded for dismantling preexisting levees, in part or whole, to restore floodplain. In conjunction
with NMFS, FEMA must encourage levee vegetation. Local governments will also win CRS points for
implementing an active buyout program to remove buildings from the floodplain, or acquire property rights
to preserve open floodplain.
Element 5 - Maintenance and Certain Types of Construction in the Floodplain
FEMA must not sanction levees that are certified by the COE utilizing COE vegetation standards
unless no adverse effect on species and habitat is shown. It may acknowledge new levees and floodwalls
only if they leave the natural channel migration pattern intact (or allow expansion), use bioengineering
methods to stabilize the banks, place large wood in the levee setback area, install riparian vegetation, and
do not increase flood level, volume or velocity.
Element 6 - Floodplain Mitigation Activities
For development in floodplains that occurs subsequent to publication of the BiOp but prior to its full
implementation, appropriate mitigation is necessary.
RPA Element 7 - Monitoring
and Adaptive Management
The BiOp requires FEMA to report to NMFS annually.
NMFS will then decide if changes
in RPA elements are needed to
avoid an adverse modification
of critical habitat. If NMFS
determines that adverse effects
were not avoided, FEMA must
mitigate. The BiOp urges FEMA
to require flood insurance in
100- and 500-year floodplains
and not waive flood insurance
requirements after issuance of
flood map revisions and behind
levees.
FEMA FLOWCHART
THE MODEL ORDINANCE
The seven RPAs were
incorporated by FEMA into an
Ordinance for local jurisdictions
to use as a safe harbor. The
Washington Model Ordinance was published in April 2011 and
includes both instructions to
delineate and classify areas on a
new type of floodplain map and
text to explain what is allowed and
prohibited within the delineated
areas. The Ordinance lists what
requirements proceed from the
BiOp, and FEMA assures local
governments that implementing
them assures ESA compliance.
The Ordinance also includes
voluntary provisions that provide
extra credit in the CRS, such
as open space preservation and FEMA Flowchart higher regulatory standards. As an alternative to adopting the Ordinance whole, local communities can ensure that all of its material provisions
are included within their local ordinance with the aid of a checklist provided by FEMA.
NEW MAPPING PROTOCOL
The area subject to FEMA regulations is being expanded well beyond the floodway and the 100-year
floodplain (aka the Special Flood Hazard Area). Maps will now include the Riparian Habitat Zone (RHZ) (the name is changed from Riparian Buffer Zone in the BiOp) and the CMZ, which together are called the
Protected Area. The Protected Area will often extend beyond the 100-year floodplain, especially in areas
of moderate to steep banks. The Protected Area, the 100-year floodplain and the floodway will together
comprise a new Regulatory Floodplain.
The RHZ and the CMZ must be delineated. The Ordinance requires that applications for subdivisions
or floodplain development permits for development within 300 feet of any stream or shoreline include a
site plan that delineates the RHZ. The RHZ is defined in the Ordinance as “the water body and adjacent
land areas that are likely to support aquatic and riparian habitat.” More specifically, the Ordinance requires
setbacks from ordinary high water that range from 150 feet for nonsalmonid-bearing perennial and seasonal
streams and lakes, to 250 feet for the largest rivers. These setbacks were based on a Washington State
Department of Fish and Wildlife study, so it is unclear whether there may be different setbacks in Oregon.
In many cases, the RHZ setback could extend well beyond the 100-year floodplain and well beyond the top
of the bank.
The BiOp defines the CMZ as the “lateral extent of likely movement along a stream reach during
the next one hundred years with evidence of active stream channel movement over the past one hundred
years.” One hundred years was considered practical for historic research. It takes 100 years to grow trees
large enough to provide large woody debris. Areas protected by legally existing levees and other “artificial
channel constraints” will not be considered within the CMZ unless a tributary, stream or other hydraulic
connection allows fish passage. In other words, a grandfather clause ensures that areas protected by existing
dikes, riprap, and seawalls, such as downtown Portland, may be excluded from the CMZ. The Ordinance
requires that the CMZ be defined as the actual migration area plus 50 feet.
The Ordinance establishes a procedure for revising the boundaries of the CMZ or RHZ after the maps
are adopted. It involves submittal of a technical study consistent with the FEMA Guidance Document
entitled Regional Guidance for Hydrologic and Hydraulic Studies in support of the Model Ordinance
for Floodplain Management under the National Flood Insurance Program and the Endangered Species
Act. That document is presently in draft form, and describes methodology for delineating the floodway,
floodplain and CMZ, although it does not discuss the RHZ. Because the ESA is implicated in any changes
to the RHZ or CMZ, map revisions will almost certainly require consultation with NMFS.
In discussing the implementation of RPA 2, FEMA explains that it changes flood maps one of two
general ways. The first is a Letter of Map Amendment used when no physical changes are made to the
floodplain, but a topographic survey shows that the affected area is actually above the 100-year floodplain.
Because there are no physical changes in the floodplain, FEMA is not required to ensure ESA compliance.
The second is a Letter of Map Revision which is used when physical changes are made to the floodplain. If
the changes are caused by fill, it is called Letter of Map Revision – Fill. FEMA now requires documentation
of ESA compliance for all Letters of Map Revision, including conditional letters. Conditional letters are
issued prior to commencement of construction, and assure that FEMA will revise its maps after the project
is complete, subject to conditions specified in the letter. More specifically, applicants must provide a
Biological Evaluation so FEMA can determine if a Section 7 consultation is needed.
FEMA uses an algorithm to account for many factors when deciding where to update its maps, which
now includes data on endangered species at the watershed level. While ESA issues will influence the
priority of studies, FEMA is not going to drop its other criteria to concentrate on mapping for the ESA. The
third component of RPA 2 is hydraulic modeling. FEMA is conducting a nationwide analysis of potential
changes in precipitation, sea level, and other natural processes affecting river and coastal flooding based
on climate change studies. FEMA Region 10 is going to await this analysis before altering its modeling.
Preliminarily, FEMA predicts the 100-year floodplain areas in most counties in western Washington and
Oregon will increase by more than 100 percent by 2100, but it has not indicated how this prediction will
affect flood mapping.
NEW REGULATIONS
The Ordinance proposes new regulations that will make it very difficult to alter land designated as
habitat. It even characterizes the RHZ as a non-disturbance area. For example, clearing additional land for agriculture will require a floodplain development permit application that may be denied. Structures must be
set back 15 feet from the mapped boundary of the Regulatory Floodplain. For properties entirely within the
Regulatory Floodplain, “all new structures, pavement, and other development must be sited in the location
that has the least impact on habitat by locating the structures as far from the water body as possible or
placing the structures on the highest land on the lot, which offers protection to local governments against
taking claims.
If more than 10 percent of the lot area within the Regulatory Floodplain will be impervious,
stormwater studies and/or stormwater mitigation are required. The new limit on the expansion of existing
structures in floodplains is 10 percent of the existing footprint counted cumulatively in order to prevent
serial additions. This focus on the structural area is new. Previously, expansions were allowed regardless of
the foot print so long as the value of the structure did not increase more than 50 percent.
The Ordinance commentary notes that communities may limit habitat protection to areas where
functioning habitats exist, which still means that expansion of existing development will not be allowed
in most cases. Other than restoration projects, vegetation within the RHZ must be left undisturbed. For
areas outside the RHZ but still within the Regulatory Floodplain, 65 percent of native vegetation must be
left undisturbed. If that is not possible, a habitat assessment and “if necessary” mitigation are required.
Development of open space and recreation facilities may not include structures, fill, or impervious surfaces.
The Ordinance provides for no net loss of flood storage, which can only be achieved by balanced cut
and fill. Other than as required by restoration projects, all applications will need to submit a detailed habitat
assessment consistent with federal interagency ESA consultation requirements or the FEMA Regional
Guidance for Floodplain Habitat Assessment and Mitigation, FEMA Region X, 2010. If the assessment
finds an adverse effect on water quality, or habitat, or habitat functions, mitigation is required.
For implementation of RPA 3, FEMA provided the 122 affected communities with two options; the
Model Ordinance or the checklist. Of 24 responses thus far, two are adopting the Model Ordinance, 13
are demonstrating compliance through their current regulations, and 9 are handling it on a permit-bypermit
basis. Many communities are waiting until NMFS approves these options as ESA compliant before
deciding which option to pursue.
CONCLUSION
Mapping the various elements of the new Regulatory Floodplain is certain to be controversial,
especially if FEMA insists on raising the 100-year flood elevation (aka the base flood elevation) because
of global warming. That will dramatically expand the area classified and regulated as floodplain and fish
habitat. Increases in the flood elevation due to cumulative effects of continued population growth and
development in a watershed will be less dramatic but still substantial, especially for the many developed
properties that are only slightly above the current flood elevation.
The Ordinance does acknowledge that fully developed areas within the floodplain may have very
limited habitat value; in which case only flood storage and stormwater discharge may need to be addressed,
but only if the local jurisdiction designates such developed areas during its adoption of the Ordinance.
That is, local jurisdictions will be given an opportunity to exclude developed areas when adopting the
new habitat map and implementing the Ordinance. After that, everything within the Protected Area will be
subject to the Ordinance, including expansions of structures in fully developed areas that are still within the
floodplain. The Ordinance acknowledges that the CMZ is restricted so that channels are unlikely to move in
some reaches, especially in developed urban areas.
It is important for all waterfront users, including ports, moorages, landowners, diking districts and
other interested parties to understand that the time to engage in the FEMA mapping process in order to
have a reasonable chance to affect the outcome is when the maps are first being made. Those who decline
to participate may think that the mapping and delineation can be handled at the time of development, as
is commonly done where wetlands are concerned. However, once a property is mapped within the RHZ
or CMZ, it will be very difficult, if not impossible, to change the map later. While budget constraints and
political considerations may delay the creation of these maps by FEMA or local jurisdictions, the burden
will fall on the applicant to delineate the RHZ and CMZ, although an applicant may simply designate the
entire 100-year floodplain as the CMZ. Therefore to avoid NMFS consultation for each individual project,
public agencies and private property owners expecting to develop or actively operate their properties should
strive to ensure that map revisions adopted by local jurisdictions or FEMA accurately reflect development
areas, including areas with minimal levels of development such as parks and parking lots, and exclude them
from the RHZ and CMZ.
The Ordinance emphasizes that map revision requests cannot be approved when based on illegal
activity such as an unpermitted fill. In summary, the Ordinance essentially implements a no net loss of
habitat or flood storage policy. Affected parties will need to get involved and work hard to protect their
rights to continue using land that is in the floodplain, or land that may be included within an expanded floodplain by new maps based on estimated future flood levels.
In addition, the uses allowed will be much more restricted. For example, the Ordinance Commentary
says this about the Riparian Habitat Zone: “Generally it is an area that must be kept as open space.” In
many communities throughout the state, flood-prone areas are developed with athletic fields, parking
lots, industrial yards, recreational marinas and similar uses, which have historically been allowed because
they do not impede flood waters. In the future, new development and redevelopment for these uses may
be prohibited, even though they are considered open space uses and have a negligible effect on flooding,
unless expensive habitat mitigation is provided nearby.
If local communities do not implement the Ordinance, then NMFS consultation will be required for
most development projects in or near floodplains, making all types of development in floodplains and
shoreline areas substantially more difficult. Even under the Ordinance, development proposals that involve
removal of more than 35 percent of native vegetation in the 100-year floodplain or removal of any native
vegetation in the RHZ will require consultation with NMFS. Existing developments will be impacted when
permits are needed for any changes or for redevelopment. As for flexibility or potential variances from the
stringent new regulations, the Ordinance Commentary encourages communities “to adopt standards equal
to or more restrictive than” existing federal regulations.
An earlier draft of the Ordinance received over 160 comments. A common criticism was that FEMA is
exceeding its authority by regulating areas outside the 100-year floodplain and outside the critical habitat
area previously designated through federal rulemaking. FEMA acknowledged that its authority is limited
to the floodplain, but emphasizes that local governments still must comply with the ESA, warning that
if a community does not enforce the BiOp’s performance standards outside the 100-year floodplain, it
will be exposed to ESA claims. Other comments assert the RPAs did not account for economic feasibility
of regulating land use beyond the current critical habitat area as required by Section 4 of the ESA. Both
NMFS and FEMA brushed this concern aside without evaluating economic effects, such as the increased
cost of locating public water and sewer facilities well away from rivers, or the reduced supply of land for
common waterfront uses. NMFS seems unwilling to undertake rulemaking and insists that the RPA “merely
refines activities within the existing program to account more specifically for the effects of the minimum
criteria on listed salmon and steelhead.” NMFS and FEMA appear indifferent to the possibility that they are
exceeding their regulatory authority and in so doing may break the budgets of public agencies and private
parties alike.
In response to complaints that for dikes and levees, there is a clear conflict between the BiOp and
current COE requirements, FEMA punts this issue back to NMFS and the COE.
We can expect that property in or near the floodplain in Oregon will soon be subject to the same level of
regulation that is now being implemented in Washington. In order to protect habitat that may be occupied
by endangered fish during floods anticipated to occur once a century, the new regulations curtail activities
and uses that are now commonplace on the lowlands along rivers and streams, including public utilities,
agriculture, transportation infrastructure, parks, recreational and industrial marine docks, ports, and all
types of commercial and residential real estate.
Preview of FEMA Riparian Regulations in Oregon
by Joseph Schaefer and Steve Morasch, Schwabe, Williamson & Wyatt
Issue #469 / September 2011
For Additional Information:
Joseph Schaefer and Steve Morasch, Schwabe, Williamson & Wyatt
Joseph Schaefer holds a Masters Degree in Urban and Regional Planning from PSU and is now in his 11th year as a
Land Use Planner at Schwabe, Williamson & Wyatt, where he assists property owners and developers with land use
entitlements and related regulatory issues. He serves in the City of Aurora Planning Commission and was previously a
member of the City Council.
Steve Morasch represents developers and land owners in the land use permitting process in both Oregon and Washington.
Mr. Morasch focuses his court work on entitlement appeal, and constitutional claims affecting property, including First
Amendment and Equal Protection rights, as well as Dolan claims and regulatory takings. Mr. Morasch serves as a member
of the Clark County Planning Commission, the Industrial Lands Committee of the Columbia River Economic Development
Council, and the Government Affairs Committee of the Clark County Association of Realtors.
