Planning and Development Services
A 2004 lawsuit held that FEMA had a responsibility to consult with the National Marine Fisheries Service (NMFS) about impacts of the NFIP on listed species under Section 7 of the Endangered Species Act (ESA). The plaintiffs (the National Wildlife Federation) believed that the operation of the NFIP resulted in impacts on several species listed under the ESA and their critical habitats within Puget Sound. A consultation is the mechanism used to review federal programs or permitting activities and determine what is needed to address any impacts. Consultations are handled either by the National Marine Fisheries Service (NMFS) or the United States Fish and Wildlife Service (USFWS).
The result of that consultation was the issuance in September 2008 by NMFS of a Biological Opinion (BiOp) under the ESA. The BiOp prepared for the NFIP found that some elements "jeopardized" several ESA-listed species in the Puget Sound, including Chinook salmon and Orca whales. These elements included FEMA floodplain mapping, the community rating system and the minimum development standards. The BiOp includes "reasonable and prudent alternatives" (RPAs) that must be implemented by the federal agency.
The most critical element for purposes of local government administration of floodplain regulations is Element 3. This relates to FEMA's minimum development criteria, which local jurisdictions are required to adopt to participate in the NFIP. RPA Element 3 directs FEMA to significantly tighten the minimum development criteria that is used by local governments to regulate floodplain development.
NMFS prepared a description in February 2011 of what is required by RPA Element 3 in the publication Reasonable & Prudent Alternative Element 3: Floodplain Management Criteria [Pdf].
Skagit County’s Response to Bi-Op Requirements
Affected jurisdictions were given a deadline of September 23, 2011, to show compliance with the BiOp requirements. Jurisdictions could elect one of three “doors” to achieve compliance. See FEMA’s description of compliance options here. A jurisdiction could choose to (1) adopt a model ordinance drafted by NMFS (Door 1), (2) adopt a programmatic approach utilizing existing regulations and supplementing with new regulations and policies, as needed (Door 2), or (3) undertake a project-by-project review to determine compliance with the BiOp (Door 3). A jurisdiction operates under Door 3 (permit-by-permit) until a Door 1 or Door 2 proposal has been approved by FEMA.
On September 20, 2011, Skagit County adopted Ordinance #O20110008 as well as an Administrative Official Interpretation as an effort to achieve compliance under Door 2, the programmatic approach. The ordinance amended portions of the Flood Damage Prevention Ordinance, SCC 14.34, as well as the Critical Areas Ordinance, SCC 14.24. The County submitted this to FEMA for its review.
On November 11, 2011, Skagit County received a response [Pdf] from FEMA indicating some additional changes that would be necessary before Skagit County had programmatic approval as a Door 2 jurisdiction. Skagit County is currently reviewing projects on a case-by-case basis (Door 3) for compliance with the BiOp, utilizing its new procedures in SCC 14.34.
Public Participation Documents
For additional information,
go to: http://www.fema.gov/about/regions/regionx/nfipesa.shtm