Presented by

Ray Liaw

Changes on the Floodplain How FEMA and the BiOp are Impacting

Development in the Puget Sound

Key Floodplain Issues

• Why relevant now?

– Updated floodplain mapping

– ESA lawsuit resulted in Biological Opinion affecting implementation of the National Flood Insurance Program

• Result: At same time floodplains are getting bigger/deeper, the applicable development regulations are getting tougher.

Brief History Lesson

• Congress adopted the National Flood Insurance Act in 1968

– Insurance Mechanism

– Local floodplain management

• Map 100 year floodplain; known as FIRMs.

• Pierce County FIRMs not substantially updated since 1987.

Remapping in 2000s

Two things changed that brought about remapping:

• FEMA initiated map modernization – digital floodplain maps.

• New scrutiny regarding levees.

Result: Dramatically different floodplains

Impacts in Pierce County

• 2004: Puyallup River, lower 8-miles of levees lost certification

• 2007: Pierce County issued p-FIRMs

– Expanded floodplain: Fife, Port of Tacoma, Riverside, Orting, South Prairie

– Fife: 70% of the community in the floodplain

• Puyallup River Executive Task Force … $$$

City of Fife Floodplains

Current Status of Remapping

• All maps affected by levees currently on hold. – February Letter from Senators asking FEMA to change levee policy.

– March announcement by Craig Fugate/FEMA that FEMA will re-evaluate “without levees” policy.

***Warning: The current maps may apply.

• Pierce County p-FIRMs issued in 2007

• E.g., Pierce County, Tacoma, Fife using already

Why does being in the floodplain matter?

• New Development Restrictions Apply

– Properties in the floodplain are subject to at least one, and more often several, additional layers of restrictions

– FEMA Minimum Standards: Local governments must adopt flood hazard regulations at least as stringent to participate in the NFIP.

• Result: Much harder to develop, redevelop and/or

maintain property if it is mapped in the floodplain.

FEMA Minimum Standards

• Construction/Repair Requirements

– Flood hazard permit required

– Must elevate or flood proof all non-residential structures to at or above Base Flood Elevation

– Mandatory anchoring, construction materials

• New Construction or “Substantial Improvements”

– Repair, reconstruction, or improvement where cost exceeds 50% of pre-improvement or repair value

• Floodway Restrictions under RCW 86.16

FEMA Minimum Standards are Baseline

• Pierce County

– Broader regulatory floodway

– Zero-rise floodplain restrictions

– Compensatory storage

– Increased elevation requirements: structures must be elevated to 2-feet; roads must be elevated to 1-foot

• Tacoma: FEMA minimum standards

Floodplain hazard regulations vary by jurisdiction, but all must meet FEMA minimum standards

FEMA and the Biological Opinion

• 2004: FEMA sued by National Wildlife Foundation and ordered to consult under the ESA

• 2008: National Marine Fisheries Service issued Biological Opinion to FEMA.

– Concludes that FEMA’s implementation of the NFIP threatens endangered salmon and Orca whales.

BiOp: More Stringent Regulations in Process …

• By 9/22/2011: FEMA must compel local governments to adopt more stringent flood hazard regulations.

– Compensatory flood storage

– Mitigate adverse impacts to species

– Impervious surface limitations

– Minimum 5-acre lot size

Efforts to Implement BiOp

FEMA offered local governments 3 options to implement BiOp:

(1) Adopt a Model Ordinance prepared by FEMA;

(2) Demonstrate how existing regulations satisfy RPA Element 3; or

(3) Demonstrate ESA compliance within the floodplain on a permit-by-permit basis.

Efforts to Implement BiOp in Pierce County

Jurisdiction Door Approved? Jurisdiction Door Approved?

Bonney Lake 3 Not yet Pierce County 2 Not yet

Buckley 3 Yes Puyallup 2 Not yet

Eatonville 3 Yes Roy 1 Yes

Edgewood 3 Yes Ruston 3 Yes

Fife 2 Not yet South Prairie 3 Not yet

Fircrest 3 Not yet Steilacoom 3 Yes

Gig Harbor 2 Not yet Sumner 2 Not yet

Lakewood 3 Not yet Tacoma 2 Not yet

Milton 3 Yes University Place 3 Yes

Orting 2 Yes Wilkeson 3 Yes

Many Concerns with BiOp Implementation

• No formal rule making.

– FEMA relying on 44 CFR 60.3(a)(2), but the requirements are quite narrow.

• No public participation.

Many Concerns with BiOp Implementation

• Conflicts with other Washington laws.

• Example: SMA versus BiOp

– Competing Goals/Policies for same geographic areas

– BiOp = “no adverse effect” (or “no jeopardy”)

– SMA = “no net loss of shoreline ecological functions”

• FEMA and NMFS believe that BiOp requires local governments to adopt more restrictions than GMA or SMA -> Even more difficult to develop/redevelop property

Looking Ahead re BiOp

• Expect more litigation

– Most jurisdictions chose Door #2 or #3 (no changes to flood hazard regulations)

– NWF filed a 60-day notice of intent to file suit

• Property Owners for Sensible Floodplain Regulations

Ray Liaw - Rliaw@GordonDerr.com

Molly Lawrence - MLawrence@GordonDerr.com