Planning and Development Services National Flood Insurance Program

Planning and Development Services National Flood Insurance Program Biological Opinion Compliance Proposal Proposed Changes to SCC 14. 34 and SCC 14. 24 Tim De. Vries, Project Manager Gary R. Christensen, Director Skagit County Planning & Development Services “Helping You Plan and Build Better Communities” July 19, 2011

Why? Lawsuit between National Wildlife Federation and FEMA regarding the National Flood Insurance Program (NFIP) and FEMA failure to consult under the Endangered Species Act (ESA). NWF prevailed, and FEMA had to consult with NMFS on their NFIP under the ESA. Consultation resulted in a “jeopardy” opinion (i. e. NFIP harms salmon and Orca).

Why? As a result, FEMA has to redesign NFIP program to comply with ESA and avoid jeopardizing endangered species (salmon and orca whales). Biological Opinion (Bi-Op) drafted by NMFS that provides a path for compliance for FEMA if they follow the Reasonable and Prudent Alternatives (RPAs). RPA 3 requires additional scrutiny to development within regulated floodplain (Special Flood Hazard Area). RPA 3 places burden on local jurisdictions to impose more rigorous protections for species.

How to comply? 122 NFIP participating jurisdictions in Western Washington are required to choose one of three paths: Door 1: adopt model ordinance developed by FEMA. Door 2: use a combination of existing regulations, policies, and programs, and supplement with new regulations where needed to comply with the Bi-Op. Door 3: permit-by-permit review showing no adverse effect to protected species.

Timeframe & Consequences September 22, 2011, deadline for submittal and approval by FEMA. If not met, default to “Door 3”, permit-by-permit review. Consequence of not complying at all: Inability to participate in NFIP (i. e. flood insurance available only through private insurers).

Skagit County Approach Door 2 Utilize existing critical areas review processes over a broader geographic area within floodplain. Amend SCC 14. 34 (Flood Damage Prevention Ordinance) and SCC 14. 24 (Critical Areas Ordinance) to meet certain Bi-Op minimum criteria. Show FEMA how ongoing efforts as outlined in the Skagit County Salmon Report protect species and habitat. Strike a reasonable balance between species protection and respecting property rights.

Why “Door 2”? Model ordinance (“Door 1”) too onerous and a bad fit. Imposes large “no development” zones and disregards local circumstances. Would supplant existing processes and regulations that already work to protect species. Permit-by-permit review (“Door 3”) likely requires ESA consultation-like review for all development throughout floodplain. Too onerous and expensive for landowners. According to FEMA, nearly all jurisdictions choosing a customized approach via “Door 2”.

Example of Protected Review Area Floodway (purple crosshatch) Riparian Habitat Zone (250’) (purple) Remainder of floodplain (beige) Boundaries of floodplain (deep orange)

Example of Protected Review Area

Example of Protected Review Area (RHZ only; no floodway present)

How do proposed changes to SCC 14. 24 and 14. 34 affect landowners? Heightened habitat review for development throughout floodplain. Some additional regulatory requirements on development. NOTE: Agricultural practices & activities, livestock management, and some other activities are exempt from floodplain requirements (see proposed SCC 14. 34. 100(2).