Oregon...Jeopardy Is to take an action that is reasonably expected to diminish a specie’s numbers, reproduction, or distribution so that the likelihood of survival and recovery of
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National Flood Insurance Program ESA Consultation for Online Information Sessions May 11 th and 12 th 2016 Oregon
Presenters today:Oregon Dept. of Land Conservation and Development (DLCD)Amanda Punton, Natural Resource SpecialistChristine Shirley, Natural Hazards and Floodplain Specialist
Federal Emergency Management Agency (FEMA) Region 10Scott Van Hoff, Emergency Management Specialist (Mitigation)John Graves, Chief, Floodplain Management and Insurance Branch
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Presentation Notes
This presentation describes the relationship between specific sections of the federal Endangered Species Act (ESA) and the National Flood Insurance Program (NFIP) as it relates to the NOAA Biological Opinion (BiOp) that was released on April 14, 2016. The NFIP is administered by the Federal Emergency Management Agency (FEMA). The Department of Land Conservation and Development (DLCD) is designated as the state coordinating agency for the NFIP in Oregon. DLCD is a resource for local governments, state agencies, stakeholder groups and individuals who need assistance understanding the BiOp and how it might ultimately affect development in flood hazard areas. The extent of information we can provide on the Reasonable and Prudent Alternatives relies upon FEMA’s review and interpretation. Today DLCD and FEMA will present what will happen next and the timeline. DLCD can describe the content of the RPA. FEMA’s role is to review and interpret the RPA and they will share their interpretation of its directives when they are able. This summer FEMA and DLCD will be holding regional meetings, to discuss the RPA, and FEMA will solicit suggestions on how to implement element 2 of the RPA from local governments and other stakeholders.
Abbreviations to KnowFEMA Federal Emergency Management Agency
NOAA Fisheries National Oceanic & Atmospheric Administration Fisheries Service (Also known as National Marine fisheries service or NMFS)
NFIP National Flood Insurance Program
ESA Endangered Species Act
BiOp Biological Opinion
RPA Reasonable and Prudent Alternative
The NFIP aims to reduce the impact of flooding on private and public structures by:
• Providing affordable insurance to property owners and
• Encouraging communities to adopt and enforce floodplain management regulations.
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Presentation Notes
The NFIP is a voluntary program. Counties and cities choose to participate in the NFIP to: Reduce flood losses through floodplain management Ensure that flood insurance is available to all residents Be eligible for federal grants and loans for facilities located in the Special Flood Hazard Area Ensure that residents in NFIP communities qualify for federally back mortgages Qualify for federal funds to mitigate flood risk
Endangered Species Act
Enacted in 1973 "to halt and reverse the trend toward species extinction, whatever the cost”. US Supreme Court -Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978)
Section 7 Federal consultation to avoid “Jeopardy”
Section 9 “Take” prohibition
http://www.firstpeople.us
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Presentation Notes
The ESA gives NOAA Fisheries (also known as the National Marine Fisheries Service or NMFS) authority and obligation to identify species that are in danger of extinction (endangered) or at high risk of becoming endangered (threatened). Such identification is called “listing”. Section 7 When a federal agency is taking an action that has the potential to effect an ESA listed species (in this case, FEMA’s implementation of the NFIP), that agency is required by Section 7 of the ESA to “consult” with the listing agency (NOAA-F) about the potential effect and how to avoid or mitigate impacts. The consultation process results in either: a finding by NOAA Fisheries that the proposed action will not jeopardize the continued survival of the listed species; or a finding by NOAA Fisheries that the proposed action could jeopardize continued survival of species. Findings are documented in a Biological Opinion (BiOp). A jeopardy opinion includes recommendations for how the action in question should be altered to avoid jeopardy. These recommendations are prepared with input from the action agency and are intended to be achievable using the existing authorities of the action agency. Section 9 Section 9 of the ESA prohibits any action that harms or kills a member of a listed species and applies to all people and organizations subject to U S. federal law.
To cause Jeopardy Is to take an action that is reasonably expected to diminish a species’ numbers, reproduction, or distribution so the likelihood of survival and recovery of the population in the wild is appreciably reduced
TakeTo harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct
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Presentation Notes
ESA definitions of “jeopardy” and “take”.
To cause Jeopardy Is to take an action that is reasonably expected to diminish a specie’s numbers, reproduction, or distribution so that the likelihood of survival and recovery of the population in the wild is appreciably reduced
TakeTo harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct
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“Harm” can occur inadvertently, because actions that cause harm can take place when members of a listed species are not present. Significant alteration of habitat can cause harm.
Harm – Includes significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering
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Definition of “harm” Harm can be caused by development that degrades habitat. Even if death or injury does not occur when habitat is modified by one development project, the cumulative impacts of several projects over time can result in harm. State and local programs that permit or are otherwise integral to projects that might cumulatively cause harm should be aware of their obligations to comply with the ESA.
*Any person subject to the jurisdiction of the United States
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Section 7 and Section 9 of the ESA work together to protect listed species and their habitat.
In 2004 a US District Court in the State of Washington forced FEMA into consultation with NOAA Fisheries
Consultation begins in Oregon
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FEMA entered into consultation with NOAA Fisheries after being sued in federal court for failing to consult with NOAA Fisheries on the implementation of the NFIP. Prior to the lawsuit in Oregon a suit was brought in Washington. In Washington, the court determined that consultation was warranted. In Oregon, FEMA and the plaintiffs reached a settlement agreement in which FEMA agreed to consult with NOAA Fisheries. Consultation was initiated in February 2013 when FEMA submitted to NOAA Fisheries a complete report and assessment on the implementation of the NFIP in Oregon, also known as the “proposed action”.
When impacts to salmon are not addressed, floodplain development can result in harm/take/jeopardy
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NOAA Fisheries found that floodplain development under the NFIP impacts salmon and their habitat because it can: Displace habitat used by fish during a flood Lead to channelization of natural streams Put structures in locations that streams may migrate to during high water events Negatively affect infiltration, filtering of stormwater and other hydrologic functions Result in loss of riparian vegetation
Biological Opinion on the NFIP issued on April 14, 2016
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NOAA Fisheries BiOp lists 17 species as affected by current implementation of the NFIP. Due to the natural range of these species the BiOp includes much of Oregon, the area shown in the satellite image coverage on this map. The five SE Oregon counties covered in green are not affected by this BiOp. The BiOp is a jeopardy decision and includes NOAA Fisheries’ recommendation for a “Reasonable and Prudent Alternative” or RPA . The RPA represents NOAA Fisheries’ opinion, based on best available science, on how the NFIP can be implemented so the species affected are not jeopardized. The ESA requires that the RPA be written to fit within FEMA’s existing authority.
Special Flood Hazard Area (SFHA)shown on current
Flood Insurance Rate Map (FIRM)
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FEMA’s authority to set standards for floodplain development is limited to the Special Flood Hazard Area, as shown on current Flood Insurance Rate Maps (FIRM). NFIP communities must adhere to these standards as part of their participation in the program. When reading the RPA and listening to discussions of the RPA it is important to remember two things: The RPA is written to FEMA and can not, by itself, set any new standards for NFIP communities Directives on development standards, which may ultimately be implemented through the NFIP, can only apply within the SFHA on a current FIRM.
Summary of Biological Opinion on The NFIP in Oregon, Reasonable and Prudent Alternative (RPA)
Element 1. Notice, Education, and Outreach
Element 2. Interim Measures
Element 3. Mapping Flood and Flood-Related Hazard Areas
Element 4. Floodplain Management Criteria
Element 5. Data Collection and Reporting
Element 6. Compliance and Enforcement
FEMA FEMA + NFIP Communities
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Presentation Notes
Some RPA elements (shown in red) can be implemented by FEMA alone, without passing along new floodplain development standards to NFIP Communities. For other RPA elements (shown in blue) to be fully implemented, FEMA will need to engage NFIP communities so that local floodplain development permits are reviewed and conditioned using the RPA recommended standards. Element 4 describes significant work that will initially be done by FEMA before it ultimately results in new specifications for NFIP communities. It is shown as purple to indicate that it doesn’t fit neatly into either category.
RPA Elements that Involve NFIP Communities
Element 2. Interim Measures
Element 5. Data Collection and Reporting
And after significant work by FEMA,
Element 4. Floodplain Management Criteria
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The BiOp is the result of consultation between two federal agencies. It gives direction to FEMA, not directly to local governments. FEMA will decide how to implement the RPA and then inform NFIP communities of changes to the program. FEMA intends to engage local governments as they develop an implementation plan. The BiOp does contain information about salmon, their habitat, and actions in a floodplain that can alter habitat or cause a risk of impoundment during a flood. Local governments that want to review their permitting program to identify the potential for ESA “take” can look to the BiOp as a source of best available science on this topic.
0 1 2 3 4 5
Local permit criteria for high hazard areas (with new rule)
Local permit criteria for high hazard areas (w/o new rule)
Data reporting for local gov
Local permitting interim measures in place
Notice to Local Gov
NFIP Changes Dependent on Local Government ActionNOAA-F RPA Timeline
Years from BiOp Release
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The RPA directs FEMA to implement measures according to a schedule in order to avoid a continuation of impacts that contribute to species decline. This graph shows the dates by which NOAA-Fisheries directs FEMA to have guidance or regulations in place: September 15, 2016, for Element 1. March 15, 2018, for Element 2, Elements 3.A and 3.E, and Element 5. January 1, 2019, for any components of Element 4 that FEMA determines can be implemented without regulatory revisions. September 15, 2019, for any components of Elements 3.B, 3.C, 3.D, 3.F, 3.G, and 6 that FEMA determines can be implemented without regulatory revisions. January 1, 2021, for any components of this RPA that FEMA determines require regulatory revisions. (Page 277 of the BiOp)
Significant FEMA Actions Required before Implementation
Element 1. Notice, Education, and Outreach
Element 3. Mapping Flood and Flood-Related Hazard Areas
Element 4. Floodplain Management Criteria
Element 6. Compliance and Enforcement
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Presentation Notes
There is not much that can be said at this time about Elements 3 and 4 because FEMA has not yet determined how they will be implemented. Only after FEMA has developed an implementation strategy will guidance for local governments be available on these RPA elements.
Element 1. Notice, Education, and Outreach
FEMA to develop education and outreach strategy
FEMA to send notice to affected counties and cities within 60 days of the Biological Opinion informing them of the results of the consultation and its objectives.
The letter will be addressed to the commissioner chair or mayor, expect it to arrive mid June.
FEMA, with DLCD assistance, will hold regional workshops shortly after the letter is sent.
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City and county planning staff and floodplain mangers should prepare for the letter from FEMA, which is expected in mid June. Elected officials will likely need some explanation to understand the context for FEMA’s notice. Regional meetings will be held throughout the summer.
Outreach to NFIP CommunitiesRegional meetings• North Coast• South Coast• Southern Oregon • North Willamette• South Willamette• North East Oregon • Central Oregon
• DLCD Email List• DLCD Webpage
• FEMA Webpage
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FEMA is interested in shaping an implementation plan that fits with state law and policy and local authority and resources. DLCD will support this effort by holding meetings throughout the area covered by the BiOp to gather comments and suggestions. Once they are scheduled, information on regional meetings will be posted on DLCD’s NFIP ESA webpage: http://www.oregon.gov/LCD/Pages/NFIP_BiOp.aspx To join the email list and receive regular updates on the NFIP contact: amanda.punton@state,or.us, 971-673-0961 More information, as it is developed, will also be available on the FEMA Region 10 webpage: https://www.fema.gov/national-flood-insurance-program-endangered-species-act Direct questions for FEMA via email: [email protected]
Workgroups• Implementation priorities, obstacles and
timeline
• Guidance and model code
Participating in a workgroup will require a time commitment.
Input from NFIP Communities
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Presentation Notes
Following the regional meetings DLCD and FEMA will establish two or more workgroups. Workgroup members will: Identify implementation priorities, Highlight obstacles to implementation, Recommend a timeline that is achievable given existing resources, and Review draft guidance and model code developed by FEMA Workgroups will likely be formed late summer 2016 and will require a regular commitment of time over 6 to 12 months.
• Model code
• Guidance documents
• Grants for local code adoption
• Individual technical assistance
Assistance for NFIP Communities
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FEMA will provide some assistance directly. FEMA has also funded DLCD for grants to local governments and for technical assistance to local governments.
• The requestor must submit documentation of ESA compliance.
• Take (harm and harass)cannot occur
• Applies to the entire nation
Conditional Letter of Map Revisions (CLOMR)
Path to Implementation
Path to Implementation
• Determine regulatory changes needed to comply with ESA
• Provide sufficient time for communities to implement new NFIP requirements
• Provide training and guidance
• Offer technical assistance
• Compliance and enforcement
Local Permitting Standards
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FEMA will develop an implementation plan for the Oregon BiOp with input from Local Communities. Local governments will be notified by FEMA of any changes to guidance or standards regarding NFIP requirements. FEMA will give NFIP communities time to respond to new guidance and standards prior to applying new guidance or standards to compliance reviews during community assistance visits.
Region X Guidance
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FEMA anticipates producing several guidance document related to compliance with the NFIP BiOp for Oregon.
