By GARRET JAROS/YachatsNews
Not since Noah warned of an impending flood has there been such a forecast of doom and gloom.
But this time it is not about a great flood – but over enacting regulations to curb development in Oregon’s floodplains to protect endangered species – and the impacts that could have on municipalities and homeowners covered by the National Flood Insurance Program.
Businesses and homeowners covered by private flood insurance are not affected.
Lincoln County and most, if not all, of its municipalities take part in the national program administered by the Federal Emergency Management Agency. If insurance coverage were to be dropped, damage caused by natural disasters would not be covered.
City councils in Yachats and Waldport and Lincoln County commissioners have discussed and chosen different paths to codify pre-implementation compliance measures to protect species to meet a Dec. 1 FEMA deadline.
The county has sent letters to homeowners outside city limits informing them of a Dec. 4 public hearing at the Lincoln County courthouse regarding its adoption of an ordinance to codify the new regulation, which goes into effect Dec. 18.
Waldport city manager Dann Cutter informed the city council in October it would need to decide on one of three choices outlined by FEMA in a July 15 letter. He did not spare a drop of warning about the possible ramifications.
Under one option, all development in downtown would end, Cutter said, leading it to wither away. Under another option, working-class homeowners living in Waldport’s floodplain, which stretches from Alsea Bay to Lint Slough, could be forced to abandon their homes because requirements to make repairs would be too costly. Another option, he said, could drain city coffers to compensate homeowners for lost property value. Then there’s the possibility of looming lawsuits.
“This sounds bleak,” Cutter told the council. “I’m trying to make it sound bleak. It is bleak.”
The three choices are short-term measures outlined by FEMA until a long-term solution is decided. Cutter told the council he studied five presentations on the effects the three choices would have on development.
“The county’s was pretty good – and it is world ending,” Cutter said. “Tillamook County’s was ‘The world has ended.’ Tillamook as you know is pretty much all flood plain. This is not a great situation. And we are kind of stuck.”
Cutter went back to the council in November with new information on how to stave off impacts to the city while details on a long-term plan to protect endangered species in Oregon’s floodplains are hashed out by federal and state officials.
How this all started
In 2009, environmental groups including the Portland Audubon Society, National Wildlife Federation, the Northwest Environmental Defense Fund and the Association of Northwest Steelheaders, sued FEMA alleging the agency was violating the Endangered Species Act by not consulting with the National Marine Fisheries Service about the impacts the agency’s flood insurance program has on endangered salmon and steelhead.
In 2016, the fisheries service issued a biological opinion that concluded the insurance program jeopardizes the survival of multiple threatened species and identified changes needed to protect habitat for 16 species of fish and Southern Resident killer whales to comply with the Endangered Species Act.
In 2021, FEMA issued a draft plan on how to reduce the negative impacts of the flood insurance program and in 2023 began reviewing implementation using the National Environmental Policy Act process, which is still underway. In September 2023 a different collection of environmental advocacy groups filed a lawsuit accusing FEMA of acting too slowly.
That lawsuit led FEMA to announce in July a new program of interim “pre-implementation compliance measures,” to protect habitat and achieve “not net loss” of species across the agency’s coverage areas in Oregon until its final plan is finished. It gave the 31 counties encompassing 239 communities until Dec. 1 to choose one of three pre-implementation options or risk losing insurance coverage.
The options are to prohibit all new development in floodplains, incorporate the Endangered Species Act and its requirements into local floodplain ordinances, or establish a permit-by-permit process requiring applicants to develop a floodplain habitat assessment documenting proposed development in the “special flood hazard area” to achieve no net loss.
Governor seeks delay
As the affected counties and cities rush to comply with the deadline, changes to how the three options need to be re-written to comply with Oregon’s land-use laws are being worked out daily between FEMA and state officials. At this point there are enough uncertainties to float an ark.
In late September, Oregon Gov. Tina Kotek wrote to FEMA’s national administrator saying the agency’s lack of public process in the development and implementation of interim measures will cause more harm than benefit to communities “in particular many coastal and rural communities.”
Kotek called the Dec. 1 deadline “impractical” given the time it takes elected officials and their constituents to undergo a decision-making process, and asked the agency to pause the pre-implementation process.
“I respectfully ask that FEMA engage more fully in deliberative dialogue with my agencies in order to craft the best solutions possible for public safety and species protection,” Kotek wrote. “With your agreement, I will support the convening of such a process with the appropriate representatives of different interests so that together we can chart a durable and implementable path forward.”
Decisions made
Lincoln County is choosing to go with FEMA’s proposed model ordinance, which is based on Oregon’s current model ordinance. But it has some added nuances that include performance standards to address the protection of species and habitat and mitigation ratios.
Yachats is implementing a moratorium on development in affected areas while it works toward aligning its ordinance with FEMA’s model ordinance.
“The thing that struck me in our last meeting is our current flood ordinances are not too far off from the suggested model ordinance,” city manager Bobbi Price told the city council before its decision Nov. 20. “I do really suggest that we continue looking at the model ordinance as an option …”
Price was joined in discussions about which choice is best for now by city planner Katherine Guenther.
“The upshot of some of the craziness in the last month or two has been that FEMA is now aware that a lot of what they proposed back in July just is not feasible in the state of Oregon,” Guenther said. “That we are not able to adopt new code as quickly as they thought, that there are some issues with some of their proposed code. As recently as the beginning of this month they were re-working both the model code and the code for the habitat assessment.”
Guenther said it was loud and clear during two League of Oregon Cities presentations on the rules that so long as Yachats does its best to indicate to FEMA what it plans to do by the Dec. 1 deadline and not “ghost them,” they will work with the city.
“I thought one of the more interesting options that several cities sound like they were electing was to adopt, basically have a temporary moratorium from Dec. 1 to the date of adoption of whichever code is selected,” Guenther said. “And then start operating under the new code.
“That’s not horrible for us because we have on the average fewer than one permit application per year in this special hazard flood area,” Guenther said. “So, to put that one a year or three-quarters a year off for several months is probably one of the least impactful choices.”
Mayor Craig Berdie said the temporary moratorium made him a “little uncomfortable” and said it will primarily affect some property owners in the Quiet Water neighborhood on the north edge of the Yachats River.
“The Bayview area is pretty well built out, although there is certainly one property, probably more than one that could come forward with a building request,” Berdie said. “Coming up with a model code takes staff time and is challenging …”
It will take two public hearings and at least six weeks to implement the model code, which could impose a burden on some property owners, he said.
Under the moratorium, the city will not issue new building permits in the affected special flood hazard zones, Guenther said. Although guidelines from FEMA are still vague, she said it will not affect any permits already issued or current construction.
Berdie wanted to make sure the public understands why the national flood insurance program is important.
“Don’t forget the whole motivation for this is so that we can continue to provide flood insurance and emergency services from FEMA, which is a big deal,” he said. “We don’t want to lose that.”
He added that while residents in Quiet Water are probably paying for private flood insurance already, what FEMA provides is for a different kind of emergency.
Waldport’s direction
Waldport’s city council followed Cutter’s advice, following the League of Oregon Cities’ guidance to move forward with FEMA’s options but under Oregon’s rules.
“The attorney was very, very clear that first and foremost, we should follow Oregon land use law,” Cutter said. “And not remotely explore violating Oregon law in favor of federal law. What the guidance has basically said is inform FEMA of your intent to move forward and then start following Oregon rules to the tee.”
Oregon rules will drag the process out quite a bit because every time FEMA changes anything, Cutter said, the city has to start from scratch and send out notifications, conduct public hearings and go through a whole new process.
The Waldport council agreed, passing a resolution to inform FEMA of its intent to comply, but that a final decision would require the full public hearing processes required by the state.
“And the process cannot begin until FEMA has finalized its rules ensuring property owners receive an accurate and fair notification of their affected rights,” the resolution stated. “Barring that, the city reserves all rights under state and federal law to continue to allow.”
- Garret Jaros is YachatsNews’ full-time reporter and can be reached at GJaros@YachatsNews.com
For more information about pre-implementation compliance measures in Oregon go here
FEMA is a mess. It has been said, “Poor planning on your part does not make an emergency for me.” Well, that’s clearly not the case here. Poor planning and communication have created a shockingly bad legal environment for many Oregon locales. Excellent reporting on this complex topic, YachatsNews. Fingers crossed for an outcome based on saner, better thought out parameters than have so far been presented.
Good article.
20 years or so ago, FEMA was updating its maps, and a group of Newport residents lobbied the agency to eliminate the South Shore development, built right behind the dune in South Beach, and which eliminated a wetland, from the map. That did not occur.
Also, pre-pandemic, around 2018-2019, the small Pacific City community newpaper, Pacific Sun, was publishing coverage of Tillamook county’s planner’s discussions about the effect of the ESA ruling on low lying properties in that area, citing just these issues. So this issue isn’t that new. But there hasn’t been a corresponding alarm here locally until very recently. It appears that the county and cities have basically just been ignoring it or putting it off until later.
Well, ~later~is now here.
I’m curious of how it works if the county moves to codify rules that seem like they are still changing, but a municipality like Waldport chooses to follow Oregon law and allow development until the rules are finalized and due process can occur. Building permits even in Waldport have to still go to the county. I just don’t understand how that works. What a mess. FEMA with a knee jerk reaction here essentially trying to unilaterally change property rights in Oregon with no due process. Lincoln county should not codify these rules. They are opening the door for so many lawsuits if I am even understanding this correctly.
Endangered species not withstanding, why the heck is anyone defending building in the flood zone, which close to the coast also happens to be in the tsunami zone?
Many coastal communities, including Waldport, Bayshore, Tillamook, the Salishan spit, erc. ad nauseum, we’re built in the tsunami zone and/or river floodplains. Hundreds if not thousands of people will die when the big earthquake and tsunami eventually hit.
Coastal communities need to start examining the concept of strategic retreat, which involves among other things putting new residential developments outside the tsunami zone and encouraging development of non-residential facilities like parks, golf courses Etc within the tsunami zone.
This obviously is difficult and will take many years given the paucity of developable land between the mountains/forest and the sea. If you don’t like that idea, you can look at the alternative by searching on YouTube for 2011 Japan tsunami and watch what happened in the big earthquake back then.
I can understand this point of view. The language of the rules encompasses all development though, be a golf course or residential. It’s very restrictive.
Just wait until this new “glampground” is put in on the shoreline in Waldport. Their flood plain plans meet minimal requirments and they are building putting greens next to riparian areas that will be destroyed by glampers tramping all over those dunes and shoreline. People complained about this but all Waldport sees is $$$.
I was in Thailand for the Tsunami and the planning council in Waldport totally ignored warnings from environmental groups that this insertion of the glampground would cause many deaths in the case of a Tsunami. The environmental groups shared the opinion that the occurrence of a Tsunami is not a matter of “if” but “when”. The planning commission’s response? People can walk 80ft up the hill to be safe. I waa speechless!
Wait until the damage occurs to the riparian area – by then it will be too late to save it. FEMA should have more awareness about the environmental and human dangers presented by putting in these types of developments.