New restrictions on Oregon floodplain development

Some see the changes as reform of a troubled program, and others as an example of bureaucratic overreach.

 

Last winter, Oregon survived a nightmare of flooding. A state of emergency was declared for 13 counties across Oregon, and heavy rains in Portland’s downtown Pearl District submerged cars under brown water tainted with sewage. Towns were evacuated as rivers swelled. The deluge softened the ground, causing landslides and sinkholes. Two people died and the total damages amounted to $25 million.

When flooding occurs, cities and counties in Oregon and nationwide are able to turn to the National Flood Insurance Program to help them rebuild. In return, communities enrolled in the program adhere to rules aimed at reducing damage costs and future flood risks. The program is widespread in Oregon, with 99 percent of communities taking part, totaling $3.8 billion in insurance coverage. The number of policies has steadily increased over time, and NFIP has paid out $92 million for damages since 1978.

But an insurance program that started as a way for the federal government to protect homeowners and mitigate flood damage has attracted increasing controversy and criticism. Environmental groups in several states have sued, saying the program has encouraged development in sensitive floodplain areas, and has disregarded the impact that development has on threatened and endangered species and their habitat.

The Willamette River after a series of intense rains in December 2015.

To be in the program, communities have to comply with requirements such as mapping flood areas, raising structures and flood-proofing buildings. But as of June, Oregon members were given two options from the Federal Emergency Management Agency, which runs the program: take on additional regulations to comply with the Endangered Species Act, or temporarily halt new development in floodplains. The new requirements stem from a biological opinion published in April by National Marine Fisheries Service, which FEMA was ordered to consult with after settling a lawsuit with several Oregon environmental organizations.

“We were very concerned about the loss of floodplains and the irresponsibility of development and lack of mitigation for those delicate ecosystems,” said Bob Sallinger, conservation director of Audubon Society of Portland, one of the groups involved in the lawsuit that began in 2009.

The National Marine Fisheries Service recommended FEMA institute additional requirements for participating communities that include limiting development in areas that are frequently flooded or impacted by erosion, producing more detailed flood maps, projecting future conditions of flood plains, restricting riparian vegetation removal and generating reports on flood plain development.

The Oregon groups took their lead from the National Wildlife Federation, which was also a plaintiff in the Oregon lawsuit. The National Wildlife Federation first took FEMA to court over the program in the early 1990s. At the time, the federation alleged that the program harmed the Key deer’s Florida habitat by making floodplain development possible.

In 1994, the U.S. District Court in Miami agreed with NWF, and FEMA was ordered to consult with the U.S. Fish and Wildlife Service to prevent the flood insurance program from jeopardizing the endangered ungulate.

Since then, conservation groups across the country have used that original lawsuit as a blueprint to successfully sue FEMA: the program must now include endangered species provisions in specific communities in New Mexico and Puget Sound in Washington, in addition to Oregon, which is the first time that the provisions have been applied state-wide. FEMA is currently reacting to such lawsuits by adding endangered species provisions to the program in Arizona, Florida and California.

In Oregon, many major floodplain zones have been altered for urban and agricultural development; an estimated 85 percent of the Willamette River’s historic floodplain has been drained and developed. The interior Columbia River Basin, which includes large swaths of Oregon, Washington and Idaho, has had nearly half of its floodplains altered by channel filling and levees, according to reports by the National Marine Fisheries Service.

The National Flood Insurance Program, which has struggled with financial instability, was first created because private insurers refused to cover structures in known floodplains except at a high cost. But the Oregon lawsuit argues that the program also "facilitates, influences, and even promotes and encourages human development in Oregon floodplains.” The April report by NMFS found that the program has allowed development to impact 18 threatened and endangered species such as steelhead and salmon by destroying or negatively altering their habitat.

Oregon representatives, senators and some editorial boards disagreed with the findings, calling them a “disaster” and a “land grab.” They cited the number of growing cities such as Portland and Eugene that are within floodplain zones and would be severely impacted by a potential moratorium on development and redevelopment.

In a letter to FEMA, state representatives and senators wrote that Oregon’s existing land use laws are already some of “the strongest” in the country, and that FEMA is exceeding its authority by dictating how local governments could use their land.

“To try and superimpose a federal land use plan over what is already the most comprehensive and well-thought out land-use plan in the fifty states seems abysmally stupid to me and is likely to create a major backlash,” says Rep. Peter DeFazio, D-Ore. 

The low premiums on flood insurance that FEMA offers makes opting out unappealing and potentially challenging for many Oregon communities. Still, Sallinger says FEMA was within its authority to institute the new rules. “What it has done is put in new standards to qualify for the program,” he says. “That’s very typical of federal programs.”

According to Christine Shirley, natural hazards and floodplain specialist with the Department of Land Conservation and Development and NFIP coordinator, there will be an extensive public process to figure out how the new regulations will be applied, as well as outreach to inform communities about the changes. The first series of workshops has already begun.

Communities will have to have interim measures in place by 2018, and all changes finalized by 2021. Oregon cities already have a 20-year plan in the works for development and land use, Shirley says, which could potentially be disrupted by the new rules. “This kind of uncertainty is something local governments don’t like,” she says.

FEMA is supplying some additional support to local agencies, but Shirley says her agency, which oversees land use planning statewide, will no doubt have delays as roughly 251 affected communities change their regulations simultaneously to meet the mandated timeline.

Flooding in Oregon is estimated to cause more damage as the climate warms, which will both increase the need for the insurance program, and, environmentalists say, increase the need for the program’s reform.

“How many more times does Portland need to be flooded before we think reform is necessary?” Sallinger asks, “How many more species have to go to the brink of extinction before we think reform is necessary?” 

Anna V. Smith is an editorial intern at High Country News. She tweets