If there was ever a case to be made for levee accreditation in Oregon, it would be the biological opinion (“BiOp”) that the National Marine Fisheries Services (“NMFS”) issued in April 2016.
The BiOp seeks to protect and conserve certain salmon and steelhead species, and their critical habitats, listed under the federal Endangered Species Act and found in Oregon floodplains located in communities participating in the National Flood Insurance Program (the “NFIP”) administered by the Federal Emergency Management Agency (“FEMA”).
The BiOp imposes six elements of a Reasonable Prudent Alternative (“RPA”) on the Oregon NFIP. Under the BiOp, NMFS agrees with FEMA that Oregon communities participating in the NFIP need to comply with a no-net-loss-but-a-net-gain standard: “to mitigate all adverse effects to existing floodplain functions so that no net loss or a net beneficial gain is achieved.” The RPA elements mandate FEMA change its regulatory floodplain management criteria and direct participating communities to adopt more stringent development restrictions within the floodplain.
Under the NFIP, FEMA makes available flood insurance to all property owners in a “community” that participates in NFIP. The NFIP is intended to reduce federal expenditures for flood losses and disaster assistance by providing flood insurance at reasonable rates within communities that choose to participate in the program. To encourage communities to participate in the program, the mandates of the NFIP prohibit federally-regulated banks or lenders, or federal agencies, from providing loans or other financial assistance for acquisition or development within “floodplains” of non-participating communities. They also require property owners to purchase of flood insurance as a precondition to access such federal financial assistance. But the communities must adopt land use and control measures as restrictive as FEMA’s regulatory floodplain management criteria.
Under current FEMA regulations, a regulatory “floodplain” that is subject to the NFIP is the land within a community subject to a “base flood” or otherwise referred to as one percent or greater chance of flooding in any given year (also known as the 100-year floodplain). FEMA implements the NFIP by maintaining a Flood Insurance Rate Map (“FIRM”) that dictates insurance premiums based on flood risks. On this map, a regulatory floodplain is designated as a Special Flood Hazard Area (“SFHA”), which poses the most significant risk of flooding and in which federal assistance is available to participating communities. But FEMA does not map areas protected by accredited levees and provisionally accredited levees as being SFHAs and identifies them as posing only a moderate flood risk. See, 44 CFR §65.10. Therefore, these unmapped floodplains are not subject to FEMA’s regulatory floodplain management criteria.
Given the fact that the areas protected by accredited levees are not mapped as SFHAs, the RPA has limited impacts on such protected areas. The limited impacts discussed herein illustrate that: (1) development restrictions FEMA and communities are expected to adopt do not apply to non-SFHA floodplains behind accredited levees; (2) there are no specific RPA elements restricting levee vegetation; and (3) no ESA coordination or consultation is required for re-accreditation of a levee system that already has an unqualified accreditation status.