Changes on the Floodplain

How FEMA and the BiOp are Impacting Development in the Puget Sound

Presented by

Ray Liaw

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 reevaluate 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 FEMAs 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
Bonney Lake Buckley Eatonville Edgewood Fife Fircrest

Door
3 3 3 3 2 3

Approved?
Not yet Yes Yes Yes Not yet Not yet

Jurisdiction
Pierce County Puyallup Roy Ruston South Prairie Steilacoom

Door
2 2 1 3 3 3

Approved?
Not yet Not yet Yes Yes Not yet Yes

Gig Harbor
Lakewood Milton Orting

2
3 3 2

Not yet
Not yet Yes Yes

Sumner
Tacoma University Place Wilkeson

2
2 3 3

Not yet
Not yet Yes 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