A Major Shift in Floodplain Management

11.09.2011

Local Implementation of the National Marine Fisheries Service Biological Opinion on the National Flood Insurance Program

Although September 2011 marked a major milestone in floodplain management across the Pacific Northwest’s Puget Sound region, the road forward remains uncertain. Many local jurisdictions are struggling to develop both short- and long-term approaches to floodplain management that meet federal requirements, while providing the flexibility needed for desired uses. Endangered Species Act-mandated changes to floodplain management are now in effect for the Puget Sound, and similar changes are on the horizon for the Columbia and Willamette Basins, as well as the San Francisco Bay Area.

Background
Changes to floodplain management in the Pacific Northwest are being driven by the 2008 National Marine Fisheries Service (NMFS) Biological Opinion (BiOp) on the National Flood Insurance Program (commonly refered to as the NFIP BiOp). The BiOp determined that implementation of the NFIP was jeopardizing Endangered Species Act listed salmon species by damaging their associated habitats within floodplain areas.

In response to the BiOp, the Federal Emergency Management Agency (FEMA) now requires all future public and private development to demonstrate that it will not adversely affect Endangered Species Act listed salmon and associated habitat. Cities and counties throughout the region are responsible for approving compliance before issuing floodplain development permits, which is creating new technical, administrative, and legal challenges.

FEMA developed three key approaches to NFIP BiOp compliance. Locally described as the ‘three doors,’ compliance can occur through:

  • Door 1 - Adoption of FEMA’s model ordinance;
  • Door 2 - Demonstration of programmatic protections that are consistent; and
  • Door 3- Requiring permit-by-permit consistency.

Despite FEMA’s efforts to include local and state floodplain managers, land use planners and other interests in developing and exploring compliance approaches, the evolving understanding of BiOp expectations has resulted in a potentially confusing array of options for local decision-makers and developers.

September 22 of this year marked the deadline for NFIP communities to demonstrate and ensure implementation of an approach for ongoing floodplain protection consistent with the BiOp. However, available local options for compliance are still evolving, with many Pacific Northwest communities currently utilizing the ‘permit-by-permit’ approach. The programmatic approach offered under doors 1 and 2 should make the compliance process more streamlined and efficient for local agencies and developers, however the lack of flexibility associated with adoption of FEMA’s model ordinance and challenges with demonstrating consistency under tailored programmatic protections have made local compliance under doors 1 and 2 difficult to achieve. While door 3 may be the best path forward in the short-term, long-term application of this approach may restrict the flexibility local communities need for managing growth and development within their jurisdictions. In order to aid these NFIP communities, Environmental Science Associates (ESA) has formulated additional suggested guidance to FEMA, which provides a potential roadmap to communities that balances existing and anticipated uses in the floodplain with fish and wildlife habitat protection.

Opportunities and Challenges for Programmatic Compliance
FEMA will be releasing additional direction for floodplain management issues and compliance options in the coming months. As part of the Floodplain Technical Assistance Project, ESA assisted Puget Sound NFIP communities by developing strategies for tailored floodplain management and compliance with NMFS findings. This project was a partnership with Jim Kramer of Kramer Consulting, and coordinated efforts between the federal agencies’ regional offices, Washington State and local governments. Specific project suggestions were made to FEMA and are publically available at the MyPugetSound website hosted by the Puget Sound Partnership.

Our suggested approach to programmatic compliance recognizes the natural heterogeneity of floodplains within the Pacific Northwest ecosystem. Variations occur across the landscape, ranging from hardened and leveed banks through the industrialized lower Puyallup River Valley to forested, multi-channel rivers such as the Dosewallips in Jefferson County and the Stillaguamish in Snohomish County. A “one size fits all” management prescription for these diverse landscapes ignores the diversity and complexity of local floodplain conditions. It is likely that the most successful implementation of the NFIP BiOp will be through a framework that allows Puget Sound communities to manage for variable floodplain conditions. ESA has focused significant efforts to develop a framework that will achieve programmatic compliance through characterizing and differentiating floodplain management based on existing floodplain conditions and functions.

Looking forward, if FEMA were to establish a standard characterization method and corresponding management strategies, there could be heightened consistency between Puget Sound communities and an opportunity for a more manageable and scientifically credible process. Continued city and county efforts to implement programmatic approaches for local floodplain management will likely influence FEMA’s future guidance. However, for some communities, a permit-by-permit approach (door 3) may be a better fit until greater clarity around programmatic NFIP BiOp compliance requirements becomes more certain.

Moving Forward with Permit-by-Permit Compliance
Given the ongoing challenges associated with programmatic compliance (door 2), several communities with whom we have discussed these options, have subsequently determined that they are best served by a permit-by-permit approach (door 3). This is a common situation for many communities, who either specifically requested, or defaulted to, a door 3 approach.

As floodplain development and associated permit applications continue to increase in our recovering economy, door 1 communities will need to institute a consistent process with defined expectations for habitat assessment and impact avoidance. Such an approach, paired with a standardized structure for submittal review, will ensure compliance with new FEMA standards while minimizing legal liability. Some useful guidance for permit-by-permit review has been provided by FEMA and NFMS. However, systems that are built around community conditions and development trends are also needed. Potential strategies include establishing consistent expectations for specific development activities, and/or utilizing application review worksheets to define and aide in the identification of impact thresholds.

Efforts in the Pacific Northwest continue to set the stage for pending changes to floodplain management elsewhere. ESA will continue to stay a part of this ongoing discussion, providing our clients with the technical and policy knowledge to help them successfully navigate this complex and evolving regulatory framework.

For further information, contact Aaron Booy at abooy [at] esassoc [dot] com (subject: ESA%20News%20-%20A%20Major%20Shift%20in%20Floodplain%20Management)  or 206.789.9658.