Independence staff begin work to adopt FEMA model ordinance to prevent 'no net loss' of floodplain habitat

Sean Leonard, the city’s floodplain manager, briefed the City Council and Planning Commission Wednesday on new interim requirements tied to a federal lawsuit against the Federal Emergency Management Agency. Leonard said the litigation prompted FEMA to require communities to choose one of three interim paths — prohibit development in flood plains, use a permit-by-permit habitat assessment process, or adopt FEMA’s revised model ordinance that includes endangered-species habitat protections — and that the city must adopt an approach by July 31.

Leonard told the joint work session the model ordinance staff plan to pursue is designed to achieve a “requirement of no net loss of habitat because of developments in the flood plain.” He said the rule focuses on three floodplain functions — flood storage, water quality and vegetation — and explained how the model ordinance would translate those functions into mitigation requirements for individual projects.

Under the model ordinance summary Leonard provided, flood-storage impacts would be measured in cubic footage from ground level up to the regulatory flood elevation and must be offset elsewhere on the property or within the stream reach. He said mitigation ratios for flood-storage impacts would range from 1.5:1 to 2:1 (mitigation to impact) depending on whether the site is inside a more protective riparian buffer zone, and that any created mitigation must drain to the river so fish are not trapped.

Impervious-surface increases would require 1:1 mitigation, Leonard said, either by removing existing impervious area or by adding low-impact development—bioswales, permeable paving, green roofs—that allows stormwater to percolate before reaching the stream. Vegetation removal rules would require replacement plantings for trees 6 inches in diameter or larger, using a size-based table; hazard trees and invasive-species removals would not require mitigation under the model guidance.

Leonard cautioned that the model code’s development definition is broad: “If you want to build events in the flood plain, that is considered development. It will have to be mitigated,” he said. He also noted the ordinance appears designed for subdivision-scale development and will be challenging to implement for small lots where homeowners may seek to add a shed or small porch.

On enforcement, Leonard said local staff will carry out reviews and inspections during permitting and that annual reporting to FEMA will be required. "It would be a Fred and me job. I'm the floodplain manager," he said, describing which staff would perform reviews and the reporting work.

City members asked about the practical effects and staff time required. Leonard said the city’s flood plain is “pretty contained” and that the bulk of future workload would be in the review process, especially for small property owners who might otherwise need to hire engineers to design mitigation. He identified the area north of Monmouth Street between 16th Street and Gun Club Road as one area likely to generate the most review workload.

Leonard also said the rules stem from a lawsuit and that several cities have joined litigation challenging FEMA’s implementation; he said there is no statewide or national injunction in place and therefore no relief from the July 31 deadline at this time. He told the commission and council staff will draft the ordinance text and first present it to the Planning Commission, with council consideration to follow.

Staff did not present final ordinance text at Wednesday’s session and made no formal adoption at the meeting; instead, Leonard said staff will return with specific code language and strike/added text for Planning Commission review and public hearing.

Ending

City staff framed the action at this work session as a preparatory step. The Planning Commission and City Council will see draft ordinance language in subsequent meetings. Because the requirement arises from federal litigation, staff emphasized there is implementation risk tied to ongoing court actions but no current injunction; the city therefore must meet FEMA’s interim timeline unless a court order says otherwise.