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City moves to add mitigation-assessment requirement to floodplain overlay as FEMA and NMFS rulemaking continues
Summary
City staff presented short-term code language and outreach plans to comply with new federal floodplain requirements tied to a 2016 National Marine Fisheries Service biological opinion and FEMA model ordinance; staff said the city will use a permit-by-permit mitigation assessment approach while the federal environmental review proceeds.
City staff briefed the committee on proposed amendments to Oregon City’s floodplain management overlay to comply with interim federal requirements tied to a National Marine Fisheries Service (NMFS) biological opinion and new FEMA guidance.
Staff said the federal process follows litigation and a 2016 NMFS biological opinion on floodplain impacts to listed species. FEMA issued model floodplain language and gave Oregon jurisdictions three choices: adopt the model ordinance, conduct permit-by-permit mitigation assessments that meet a “no net loss” standard, or prohibit all new development in the floodplain. Staff said the city plans to implement a permit-by-permit mitigation assessment process now while it examines the FEMA model ordinance for a later, more permanent code adoption.
Under the mitigation-assessment approach, developers proposing work in the special flood hazard area must document existing site conditions, describe impacts to floodplain functions (floodplain storage, water quality and vegetation) and identify mitigation measures that achieve no net loss of those functions. Staff said mitigation assessments must be prepared by a “qualified professional” — a person with relevant education and field experience as defined in the federal guidance — and that current local practices (balanced cut-and-fill, landscaping controls) overlap with some federal proxies but do not replace the assessment requirement.
Staff warned that failing to comply could risk the city’s enrollment in the National Flood Insurance Program (NFIP), which provides lower insurance rates tied to community floodplain management practices. Several residents asked whether the city could delay action pending federal appeals and litigation; staff replied that continued permit-by-permit assessments may be a lower-risk approach than adopting a model ordinance immediately and that FEMA’s environmental-impact work is expected to continue through 2026.
Staff said the immediate code amendments would add purpose and compliance language referencing the 2016 NMFS biological opinion and FEMA guidance and would direct applicants to submit mitigation assessments prepared by qualified professionals. The city intends to finish a model-code review and, if necessary, bring more comprehensive changes for adoption by July 2025. County and coastal jurisdictions have signaled or pursued legal challenges; staff said the city is monitoring those efforts while working to avoid NFIP noncompliance.
