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Coos Bay weighs FEMA NFIP/ESA pathways; staff favors permit‑by‑permit while awaiting legal guidance
Summary
City staff briefed council on FEMA's requirement to select PICM pathways to meet National Flood Insurance Program/Endangered Species Act standards by Dec. 1; staff recommended a permit‑by‑permit approach but council directed staff to gather more information and legal counsel before making a final selection.
Planning staff briefed the council on emergency federal guidance linking the National Flood Insurance Program (NFIP) and Endangered Species Act (ESA). Chelsea summarized the timeline staff received from FEMA: communities were asked to select a pre‑implementation compliance measure (PICM) pathway by Dec. 1; if not fully implemented, FEMA expects the permit‑by‑permit approach to apply beginning Jan. 1, 2025, with additional data collection starting Jan. 31, 2025.
Staff outlined three PICM options in the current guidance: (1) adopt the Oregon NFIP‑ESA model ordinance, which assumes impacts and builds mitigation requirements into code amendments; (2) use a permit‑by‑permit habitat assessment and mitigation approach that evaluates projects individually; or (3) prohibit development in the floodplain. Staff also described a proposed fourth alternative—requiring project applicants to certify whether an ESA incidental‑take permit is needed—but legal counsel said that approach is not FEMA‑recognized and could risk challenge.
Chelsea said the permit‑by‑permit approach (staff’s working preference) would allow tailored assessments and could be implemented without immediate code amendments, though it would increase review time and likely require third‑party expertise to evaluate habitat assessments. City legal counsel cautioned against adopting a locally devised fourth alternative that FEMA does not recognize because it might invite litigation. Mayor Benetti and several councilors urged caution and encouraged legal follow‑up; several councilors supported pausing a final decision while the League of Oregon Cities and other municipalities seek clarity and possible legal action. The council did not pick a PICM at the meeting; staff will continue analyses, consult counsel, and report back.
