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Planning director warns FEMA's flood-insurance biological-opinion could force rapid local action, legal questions
Summary
Prineville planning director Joshua Smith told the council FEMA's implementation of a 2016 biological opinion may require communities to choose a pre‑implementation compliance path by Dec. 1, potentially suspending LOMARs and imposing habitat assessments and 'no‑net‑fill' standards with unclear review procedures and takings risks.
Planning Director Joshua Smith gave an informational briefing to the council on potential local impacts from FEMA’s implementation of a National Marine Fisheries biological opinion affecting the National Flood Insurance Program (NFIP).
Smith described the background: the NFIP has enabled development in floodplains when mitigation measures are used, and Oregon’s statewide planning goal 7 historically maps to NFIP participation. He said a 2016 biological opinion from National Marine Fisheries concluded previous management could harm threatened and endangered species; FEMA has been developing implementation guidance since 2021, suspended Letter of Map Revision (LOMAR) applications on Aug. 1, and is asking jurisdictions to select one of three pre‑implementation pathways by Dec. 1.
Smith warned that the model code FEMA circulated includes new requirements such as habitat assessments and a no‑net‑fill standard that may be administratively impractical in urban settings, raise costs for property owners and create legal uncertainty under state land‑use laws (clear‑and‑objective standards) and takings doctrine. He used local examples — a Madras Highway apartment project that filled an area and a downtown Tenth Street lot — to illustrate how assessments could apply even where flooding has not historically occurred.
Councilors and staff discussed options for local response: adopting a model code update (difficult within statutory land‑use processes by the Dec. 1 timeline), leaving FEMA to process permits case‑by‑case (the likely default), and pursuing advocacy (letters to congressional representatives) or litigation if plaintiffs with standing emerge. Council gave staff a consensus head‑nod to draft a letter to the congressionally assigned representative to describe local impacts and request priority attention.
Smith repeatedly emphasized the high degree of uncertainty about administration: who would perform and review habitat assessments, how objective criteria would be defined, time and cost burdens on property owners, and potential conflicts with state law. He said the county and many Oregon communities are coordinating and monitoring FEMA webinars, and described a regional advocacy group (Oregonians for Floodplain Prevention) working with affected jurisdictions.
No local regulatory action was adopted at the meeting; the council requested staff and planning to prepare materials and a draft letter for further consideration.
