ESA Pushes FEMA to Greater Floodplain Restrictions


Floodplain management and use in Washington is largely governed by the National Flood Insurance Program ("NFIP").  Administered by the Federal Emergency Management Agency ("FEMA"), the NFIP provides the mechanism for local participating communities to obtain the flood insurance necessary for floodplain developments.  On September 22, 2008, the National Marine Fisheries Service ("NMFS") issued a biological opinion (the "Bi-Op") under the Endangered Species Act ("ESA") that contains new standards and requirements for the NFIP.  The Bi-Op contains significant new restrictions on floodplain management and future floodplain development that could affect more than 270 communities in 12 counties around Puget Sound.

The Bi-Op stems from National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004).  In National Wildlife, the court held that FEMA had an obligation under Section 7 of the ESA to consult with NMFS on the NFIP's impacts to listed species and their critical habitats within the Puget Sound area.  Following formal consultation with FEMA, NMFS issued the Bi-Op, which concludes that the NFIP, including FEMA’s floodplain mapping program, minimum development standards and Community Rating System ("CRS"), will "jeopardize" several ESA-listed species in the Puget Sound area.  The Bi-Op also notes that another biological opinion will be issued in the future to address the NFIP's impacts outside the Puget Sound area.

As a result of its "jeopardy" determination, the Bi-Op contains several "reasonable and prudent alternatives" ("RPAs") to avoid jeopardy.  Pursuant to the RPAs, FEMA is directed to:

  • Notify all participating communities within the 12 counties in the Puget Sound area of the Bi-Op and the current risk of harm to ESA-listed species from floodplain development and encourage communities to voluntarily implement a temporary moratorium on any floodplain development that adversely affects ESA-listed species or their habitats.
  • Between the issuance of the Bi-Op and the full implementation of the RPAs, initiate an "interim action" that requires participating communities to (1) keep track of all floodplain permits issued by that jurisdiction, (2) identify and "appropriately mitigate" adverse impacts that may result from the floodplain permits, and (3) report this information to FEMA in October 2009.
  • Within six months from the issuance of the Bi-Op, (1) limit approval of man-made floodplain alterations to those that either avoid habitat changes or that provide mitigation for any resulting changes, (2) prioritize floodplain mapping activities based on sensitive salmon populations, (3) increase the accuracy of floodplain modeling, and (4) encourage local jurisdictions to evaluate and identify the risk of flooding behind 100-year levees based on anticipated future conditions, such as climate change and cumulative land use changes. 
  • Cease recognition of levees certified by the Army Corps of Engineers using its vegetation standards, unless such standards will not adversely affect listed species or their habitats.
  • Modify NFIP’s minimum floodplain development standards to prevent and/or minimize the degradation of channel and floodplain habitat.  Recommended changes include: (1) prohibiting new development in the floodway, the Channel Migration Zone plus 50 feet and the Riparian Buffer Zone, (2) prohibit development in the 100-year floodplain, unless loss of floodplain storage is avoided, rectified, and compensated for and adverse impacts to listed species are mitigated, and (3) require mitigation of adverse impacts to listed species as a condition of permitting floodplain development.  The Bi-Op also provides a schedule by which the communities participating in the NFIP must adopt these new standards based on each community’s impact on listed species.
  • Modify FEMA’s CRS to encourage (1) use of Low Impact Development ("LID") methods in the floodplain, (2) preservation of open space where listed species are present, (3) retention and improvement of riparian functions, (4) setting levees back from the floodway and restoring riparian and floodplain function, (5) reduction in the amount of structural changes that degrade floodplain function, such as levees, berms, floodwalls, diversions and storm sewer improvements, (6) relocation of pre-floodplain map development out of the floodplain, (7) use of levee vegetation management maintenance practices that benefit listed salmonids, (8) buyout programs to remove buildings from the floodplain, and (9) other activities that preserve open space in the floodplain.
  • Report to NMFS annually regarding FEMA’s progress, and the progress of those Puget Sound communities participating in NFIP, on meeting the requirements of the Bi-Op.
In the short term, FEMA is already taking steps to implement the RPAs.  In October 2008, FEMA issued a notice alerting local jurisdictions of the Bi-Op, the risk of unauthorized harm to ESA-listed species from floodplain development, the resulting potential for liability under the ESA and the call by NMFS for temporary moratoriums on development within the 100-year floodplain.  In December 2008, FEMA issued a follow-up memo instructing local jurisdictions to begin the "interim action" of tracking, mitigating and reporting floodplain development permits. 

FEMA and NMFS are discussing the possibility of a "model ordinance" that would meet FEMA's minimum criteria while avoiding or minimizing impacts to listed species.  It is not clear, however, if any such ordinance will be preceded with rulemaking to revise and codify FEMA's criteria.  It is also not clear how the implementation of the RPAs will affect traditional vesting principles in Washington.  The agencies will need time to clarify these and other Bi-Op implementation issues.  In the meantime, any person that owns property within, or is planning future development within, the floodplains of the affected Puget Sound communities may consider the following actions. 
  • Determine whether your local jurisdiction has already imposed a "temporary moratorium" on floodplain development.  If not, work with your permitting officials under existing authorities (such as the State Environmental Policy Act) to assess, mitigate and avoid potential impacts from your proposed project to ESA-listed species and their habitats.
  • If you do not already know whether your property is, or is likely to fall, within a flood insurance rate map ("FIRM") as a Special Flood Hazard Area ("SFHA"), consult a copy of the current FIRM.  FIRMs should be on file with the local community and can be obtained from FEMA.
  • You may also want to determine from the local community or FEMA when the area was last mapped and if FEMA is currently re-examining the applicable area for remapping. 
  • Assess whether any area that is currently mapped as an SFHA could be “mapped out.” 
  • Assess whether a local community’s current floodplain management standards (together with its critical areas ordinances and shoreline regulations) are already adequate under the Bi-Op and, if not, what it would take to comply with the Bi-Op. 
  • Consider any implications that the Bi-Op may have on the local community’s existing planning under the Growth Management Act.
  • Finally, provide comments on FEMA’s draft model ordinance or floodplain criteria should they become publicly available for review and comment.