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HomeMy WebLinkAboutItem 03 Flood Plain Management Regulatory Changes AGENDA ITEM SUMMARY Meeting Date: 5/28/2013 Meeting Type: Work Session Staff Contact/Dept.: Jim Donovan & Ken Vogeney/DPW Staff Phone No: 541-726-3660/736-1026 Estimated Time: 30 minutes S P R I N G F I E L D C I T Y C O U N C I L Council Goals: Promote and Enhance our Hometown Feel while Focusing on Livability and Environmental Quality ITEM TITLE: FLOOD PLAIN MANAGEMENT REGULATORY CHANGES ACTION REQUESTED: No action is required. This material is for information only. ISSUE STATEMENT: The Federal Emergency Management Agency (FEMA) was sued in 2009 for failing to ensure that the National Flood Insurance Program complies with the Endangered Species Act. In response to the settlement agreement for this lawsuit, FEMA has proposed draft changes to the Program that will, if approved, significantly affect how flood plain development is allowed to occur in the future, if at all. ATTACHMENTS: 1. Council Briefing Memorandum 2. Map of Flood Plain Boundaries and 2030 Refinement Plan Study Areas DISCUSSION/ FINANCIAL IMPACT: The National Flood Insurance Program (NFIP) provides insurance for property against flooding hazards. As part of the Program, FEMA identifies and maps various flood hazard zones, such as the 100-year flood plain along rivers and other waterways. The Endangered Species Act (ESA) requires federal agencies to submit their various programs for consultation when species are listed as threatened or endangered. However, FEMA did not submit the NFIP for consultation, in part claiming that the NFIP is exempt because local jurisdictions implement the Program, not FEMA. The lawsuit challenged that claim, resulting in the settlement agreement. FEMA submitted to the National Marine Fisheries Service (NMFS) a Program Level Biological Assessment that evaluates the NFIP and its effects on salmon and steelhead, and proposed numerous changes to prevent or mitigate those effects. The NFIP changes proposed by FEMA generally fit into the following categories, and are summarized in Attachment 1: • Revised Mapping Standards • Flood Plain Development Permit Issuance • Floodway and Riparian Buffer Zone Standards • Flood Plain Management Criteria • Guidance and Support • Program Enforcement If NMFS finds that FEMA’s proposed NFIP changes are acceptable as submitted, the criteria for reviewing and approving land use applications in the flood plains will become substantially more restrictive. The City is currently evaluating its employment land needs and identifying potential growth areas through the Springfield 2030 Refinement Plan project. Each of the areas being considered for growth contain mapped flood plains and staff seeks to inform the Council of these proposed NFIP changes. M E M O R A N D U M City of Springfield Date: 5/16/2013 To: Gino Grimaldi COUNCIL BRIEFING MEMORANDUM From: Len Goodwin, Development and Public Works Director Ken Vogeney, City Engineer Jim Donovan, Planning Supervisor Subject: FLOOD PLAIN MANAGEMENT REGULATORY CHANGES ISSUE: The Federal Emergency Management Agency (FEMA) was sued in 2009 for failing to ensure that the National Flood Insurance Program complies with the Endangered Species Act. In response to the settlement agreement for this lawsuit, FEMA has proposed draft changes to the Program that will, if approved, significantly affect how flood plain development is allowed to occur in the future, if at all. COUNCIL GOALS/ MANDATE: Promote and Enhance our Hometown Feel While Focusing on Livability and Environmental Quality Federal flood plain development regulations are shifting from a focus on protecting people and property from the effects of flooding to include protecting the environment as represented by the flora and fauna and their associated habitats from the impacts of development. BACKGROUND: The National Flood Insurance Program (NFIP) provides insurance for property against flooding hazards. As part of the Program, FEMA identifies and maps various flood hazard zones, such as the floodway where water is deep and moving, and the 100-year flood plain where overflow and backwater conditions exist along rivers and other waterways during storms that have a 1% chance of occurrence. These mapped zones are considered the Special Flood Hazard Areas where FEMA has jurisdiction under the NFIP. Although participation in the program by cities is voluntary, failure to participate means property owners in the City cannot obtain flood insurance. This can be a significant impediment to development in communities like Springfield which are bounded by rivers. The Endangered Species Act (ESA) requires federal agencies to submit their various programs for consultation when species are listed as threatened or endangered. In 2000, the National Marine Fisheries Service (NMFS) listed 14 species of salmon and steelhead as threatened in Oregon and Washington. However, FEMA did not submit the NFIP for consultation, in part claiming that the NFIP is exempt because local jurisdictions implement the Program, not FEMA. The lawsuit challenged that claim, resulting in the settlement agreement. It is not the first such challenge. The same parties litigated this issue in Washington prior to litigating it in Oregon. The Washington litigation lead to a similar settlement agreement and began a discussion of more restrictive development regulations in that state. In July 2012, FEMA submitted to NMFS a Program Level Biological Assessment that evaluates the NFIP and its effects on salmon and steelhead, and proposed numerous changes to prevent or mitigate those effects. Following an initial review by NMFS that proposal was rejected and FEMA submitted a revised Assessment in February 2013. NMFS is expected to issue its draft decision on the revised Assessment in July 2013. If NMFS finds that FEMA’s proposed NFIP changes are acceptable as submitted, the criteria for reviewing and approving land use applications in the jurisdictional flood plains will become Attachment 1-1 substantially more restrictive. Since areas within the current Urban Growth boundary and each of the five UGB expansion areas being studied under the 2030 Refinement Plan project contain jurisdictional flood plain, staff seeks to inform the Council of these proposed changes as they continue to evaluate the potential expansion areas. Proposed changes to the NFIP that will have a significant effect on Springfield’s flood plain management and development include: Revised Mapping Standards: FEMA proposes to modify its flood plain mapping standards to: • Require applicants or jurisdictions who are seeking to change the flood plain boundaries shown on the FEMA approved maps to provide Biological Assessment that evaluates the impacts of the changes on the listed species. • Give higher priority to updating inaccurate maps on waterways with listed species (such a review on the Willamette and McKenzie Rivers has been in process for several years). • Provide guidance on when it is appropriate to use more complex modeling tools to update flood plain mapping to identify potential changes to habitat functions. • Require identifying Channel Migration Zones (the zone in which a waterway may move laterally over time due to natural influences) on all new or updated flood plain mapping projects. Flood Plain Development Permit Issuance: FEMA proposes to require all communities to require that flood plain development proposals receive their approvals from NMFS before issuing a flood plain development permit. Floodway and Riparian Buffer Zone Standards: FEMA proposes to require that: • All new development or substantial improvement to existing development (greater than 10% increase in building footprint) that is located within a floodway or a Riparian Buffer Zone (designated as 170 feet horizontally from the ordinary high water line) have no adverse affect on a listed species or its habitat. The Riparian Buffer Zone inside a city’s UGB may be reduced if the city conducts a habitat assessment of the whole community to demonstrate that there will be an overall improvement in habitat. As an alternative to the process for modifying the Riparian Buffer Zone, a community could adopt stringent development and mitigation standards as outlined in FEMA’s proposal. • All other development within the flood plain but outside the floodway or Riparian Buffer Zone must mitigate any adverse affects on the flood plain functions that benefit listed species or their habitat. Flood Plain Management Criteria: FEMA proposes to provide communities with four options for demonstrating compliance with the new NFIP/ESA regulations: • Prohibit all development in the floodway and other areas identified by FEMA. • Adopt a Model Ordinance that will be developed for use in Oregon that is similar to the Model Ordinance developed for use in Washington – see http://www.fema.gov/pdf/about/regions/regionx/nfip_esa_faq/nfip_esa_model_ordinanc e_final.pdf • Demonstrate, with scientific studies and other supporting documentation, to NMFS that the community’s existing ordinances and/or procedures meet all of the requirements that will be specified by NMFS when they release their final decision. • Require each development proposal to compile all of the studies and documentation necessary to apply directly to NMFS for consultation and approval of their proposed flood plain development activity. Guidance and Support: FEMA committed to providing guidance documents, workshops, public meetings, and other support to assist Oregon communities with complying with the proposed new regulations. Attachment 1-2 Program Enforcement: FEMA currently enforces the NFIP through an audit process called Community Assistance Visits (CAVs). FEMA intends to increase its frequency of conducting CAVs in Oregon to monitor compliance. If FEMA finds that a community is out of compliance, it will be placed on probation and given a timeline for achieving compliance. If it fails to achieve compliance, the community may be dropped from the NFIP and property owners will no longer be able to obtain flood insurance or to receive federally backed mortgages. Further, any CAVs that reveal a potential violation of the ESA will be reported to NMFS for potential enforcement action under the ESA. Springfield staff has been actively participating in several work groups organized by the Oregon Department of Land Conservation and Development (DLCD) that are attempting to evaluate how these changes will affect Oregon communities and developing implementation tools and guidance. Potential Impacts on Springfield’s Buildable Lands Inventory, Future Floodplain Development and Options for Growth: The regulations for developing flood plain lands are currently in flux, likely will become much more restrictive, and much more costly for developers to satisfy and for the City to implement. Development in Springfield’s flood plains is currently permitted in accordance with the Springfield Development Code Floodplain (FP) Overlay District (SDC 3.3- 400). The City’s Commercial and Industrial Buildable Lands Inventory (CIBL) identifies lands located in the flood plain as buildable and suitable for economic development. The CIBL study was completed in 2009, prior to the legal challenges discussed in this memorandum. The CIBL inventory identifies floodway as an “absolute constraint” and does not count floodway acres as buildable. If the City were to refine the analysis to apply flood plain as an “absolute constraint” and/or modify riparian buffer widths used in the inventory, the results of Springfield’s buildable lands inventory would be altered significantly and options for growth through UGB expansion, infill and redevelopment would be affected. For example, if less buildable and redevelopable acres are available within Springfield’s existing Urban Growth Boundary (UGB) to absorb future growth, a larger expansion may be required and directed to areas outside of the flood plain. As noted above, NMFS plans to issue its draft report on FEMA’s proposed changes in July. Considering Council’s current efforts at studying potential urban growth areas under the 2030 Refinement Plan project, staff seeks to inform Council since federal program changes will affect future development in Springfield. Although the full extent of these effects is not yet known, the early indications are that the affects are likely to be adverse. It is also possible that any action that results may be challenged, either by the parties who challenged FEMA originally, or by property owners who believe that any new FEMA regulations adversely impact their property. Resolution of any litigation coming out of FEMA’s action could be expensive and prolonged. As a result, we may not have certainty as to the impact on Springfield for several years. RECOMMENDED ACTION: This work session is intended for information only. No action is requested at this time. Attachment 1-3 Attachment 2-1