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Wheeler council declines action, defaults to FEMA's permit-by-permit requirement ahead of Dec. 1 deadline
Summary
City planner TJ Ferreira told council that FEMA requires jurisdictions to choose one pre-implementation compliance measure by Dec. 1; the council agreed by consensus to take no action at the November meeting, which will default Wheeler to FEMA's permit-by-permit approach while staff and counsel continue to review legal options.
City planner TJ Ferreira told the Wheeler City Council at its November meeting that FEMA had instructed jurisdictions to select one of three pre-implementation compliance measures (PICMs) under the National Flood Insurance Program and recommended the city take no formal action at this time, effectively defaulting Wheeler to FEMA's permit-by-permit option.
Ferreira reviewed the program's history, noting a 2010 settlement from litigation by environmental groups that led FEMA to consult with NOAA Fisheries and produced a biological opinion concluding the NFIP threatened listed species. He said FEMA began creating PICMs in 2017, posted guidance and FAQs this fall, and sent a 2024 letter asking jurisdictions to select one of three options by Dec. 1: adopt a model ordinance (a 'no net loss' standard), implement permit-by-permit habitat assessments, or enact a blanket moratorium on floodplain development.
Ferreira warned of legal ambiguity around the options and the timing: "If Wheeler takes no action by December 1, FEMA of course will automatically assign the permit-by-permit PICM to the city," he said, adding that defaulting to permit-by-permit could still trigger a Measure 56 notice under Oregon land-use law depending on how the city integrates the change into its code. He recommended notifying FEMA that the council had taken no action and using the December meeting to consider a temporary moratorium or other formal steps after additional counsel review and any new guidance from FEMA or the Oregon Department of Land Conservation and Development (DLCD).
At least 16 federally listed species were cited in Ferreira's overview as being implicated by the biological opinion; he said full implementation of any final NFIP changes is likely to await an environmental impact statement and NEPA review that could extend to 2027. Ferreira also flagged a county-drafted "option 4" legal strategy (a 'no-take' argument under the Endangered Species Act) and said the city would send the county letter to its legal counsel for review before deciding whether to pursue it in December.
Several residents and councilors pressed for maps and specifics. One resident identified in the record as a property owner said: "It is ridiculous what they're trying to do," voicing concern about repairs and ability to continue routine property work under stricter floodplain controls. Ferreira and staff repeatedly noted that, under any PICM, development in mapped floodplain areas will be significantly more restricted than previously, and that some properties may be unable to meet new mitigation requirements.
Council deliberations focused on legal risk and local impacts. After discussion, the council reached a consensus to take no formal action at the November meeting, which staff will interpret as a default to permit-by-permit and notify FEMA accordingly. Council members said they expect to revisit the topic at their December meeting with input from legal counsel and any new DLCD or FEMA guidance; implementing a moratorium or local land-use code changes would require public notice and hearings.
What happens next: Staff will notify FEMA that Wheeler took no action (defaulting to permit-by-permit), provide the county letter to city legal counsel for review, and return to council in December with options and the possibility of initiating a 35-day DLCD review and a temporary moratorium notice if council members choose that route.
