On January 30, 2015, President Obama signed Executive Order 13690 (“EO”) as part of his Climate Action Plan. The EO amended Executive Order 11988, signed by President Jimmy Carter in 1977, that required federal agencies “to avoid to the extent possible the long and short term adverse impacts associated with the occupancy and modification of floodplains and to avoid direct and indirect support of floodplain development wherever there is a practicable alternative.” The new EO established a Federal Flood Risk Management Standard (“Standard”) for federally-funded projects and instituted a process for soliciting and considering stakeholder input to improve the ability of communities to prevent, mitigate, and respond to the damage caused by flooding.
While the EO applies the Standard only to federally-funded projects, the reality is that the EO allows for additional federal agency management by expanding current floodplains beyond their current base flood levels. The rationale behind the implementation of the Standard is to ensure that projects funded by federal tax dollars endure. The EO targets flooding due to substantial infrastructure costs associated with floods and the U.S. Global Research Program’s projections that incidents of severe flooding will continue to intensify into the 21st Century. Floods currently constitute 85% of disaster declarations and accounted for approximately $260 billion in damage between 1980 and 2013 within the United States.
Federal agencies have the option to choose one of three methods for expanding the Standard for base flood levels and flood hazard areas:
- Climate-informed Science Approach. Use the best-available data and methods to forecast changes from flooding.
- Freeboard Value Approach. Add an additional 2 or 3 feet to the base flood elevation of the 100-year flood.
- 500-year Elevation Approach. Define the area subject to flooding as areas subject to a 0.2%-annual-chance flood.
While this three-option approach offers increased flexibility for agency implementation of the Standard, the expansion of the floodplains and flood hazard areas may reach beyond federally-funded projects and impact private development of land near coasts, rivers, and wetlands.
An example of this ancillary regulation in Oregon is the National Marine Fisheries Service’s (“NMFS”) Biological Opinion (“BiOp”), issued April 14, 2016. The BiOp stated that the Federal Emergency Management Agency (“FEMA”) was operating the National Flood Insurance Program (“NFIP”) in violation of the Endangered Species Act (“ESA”) by allowing development that threatened the survival of eighteen ESA-listed species through the reduction or destruction of critical habitats. Accordingly, NMFS ordered FEMA to revise its floodplain mapping protocols, expand mapped floodplains, and revamp its minimum floodplain regulatory criteria to enforce the new standards provided in the BiOp. These new standards prohibit all development within floodplains that is not confined to either designated open space, low intensity recreational use, habitat restoration, or limited water dependent uses unless that development can be done with no adverse impact or a net beneficial effect on the habitat located within the floodplain.
As a result of this decision and the EO, FEMA is in the process of developing new floodplain maps and regulatory criteria for the newly expanded floodplain zones. The BiOp states that development should not occur, or should be highly restricted, within the 170 feet on either side of any stream, including seasonal or ephemeral streams, effectively creating a 340-foot buffer of undevelopable land surrounding every body of water from the Willamette River down to a creek bed that is dry most of the year.
FEMA responded with a letter sent to jurisdictions within Oregon on June 13, 2016 (“Letter”). The Letter states that although the BiOp was addressed to FEMA, the ESA is applicable not only to federal agencies but also to state agencies, local jurisdictions, and individuals. This interpretation allows NMFS to regulate development within the floodplains where the habitat of endangered species is at risk. The Letter goes on to outline the staged implementation of the “Reasonable Prudent Alternative” (“RPA”) that implements preliminary restrictions on all development within floodplains. Communities have the opportunity to voluntarily place a temporary moratorium on development within floodplains or comply with the restrictions that Oregon Department of Land Conservation and Development (the “ODLCD”) and FEMA provided in Element 2 of the RPA.
RPA Element 2 will remain in place as ODLC and FEMA work with various stakeholders to develop a model ordinance to govern floodplain development. Given the Trump Administration’s overall focus on deregulation, it is difficult to determine whether there will be pushback regarding the floodplain expansions at the federal level. At this point, FEMA is moving ahead with rule changes to comply with NMFS’s March 15, 2018 preliminary deadline for the implementation of the Interim Measures.[/vc_column_text][/vc_column][/vc_row]