Nehalem Council adopts floodplain ordinance requiring permit-by-permit ESA reviews; developers warn of cost and uncertainty

Nehalem City Council on Jan. 13 adopted Ordinance No. 2025-01, amending Chapter 157.210 of the Nehalem Development Ordinance to implement Endangered Species Act (ESA) requirements tied to the National Flood Insurance Program (NFIP) through a permit-by-permit review process.

City Attorney Carrie Richter told the council the change responds to a federal settlement that requires FEMA to ensure NFIP compliance with the ESA and that FEMA has directed communities to adopt local measures. Richter described three compliance options — permit-by-permit review, adoption of a FEMA model code, or a development moratorium — and said the city had notified FEMA on Dec. 1, 2024 that it would pursue the permit-by-permit approach. That approach requires applicants to provide a biological report prepared by a qualified biologist; the city will verify that the report exists and that the biologist meets qualification criteria drawn from Oregon Department of Transportation standards. The city must begin reporting permit-review implementation to FEMA on or after Jan. 31, 2025, Richter said.

The ordinance preserves clear-and-objective standards for housing review required under state law by limiting discretionary evaluation by city staff; Richter said the city will not substitute its professional judgment for the biologist’s findings but will confirm that the necessary documentation and qualifications are on file. She said appeals of permit determinations can be made to the council.

During the public hearing, business owner Dan Modrell asked whether routine repairs would trigger a biological assessment; Richter said repairs that do not alter floodplain flows or habitat function (for example, siding replacement) typically would not, while grading, new parking, or expansion could. Kenneth Kaufmann, speaking on behalf of landowners Dean and Jean Werst, said the Wersts had expected to proceed with residential development on property within the floodplain and warned that the interim permit-by-permit approach could extend through 2027 and impose high biological-assessment costs and uncertainty for developers.

Councilors approved first and second readings of the ordinance by title and then adopted Ordinance No. 2025-01 by a 4-0 vote (Yes: Council President Hilary Howell; Councilors Dave Cram, Doug Larzelier and Kristina Quintana). The mayor did not cast a vote, consistent with the council’s procedural rules.

The ordinance requires applicants whose projects may change floodplain flows or habitat function to submit biological reports prepared by a qualified biologist. Richter said the definition of a qualified biologist was taken from ODOT standards and offered to check whether ODOT maintains a list of qualified professionals; she noted applicants will be responsible for securing and paying for reports. The council and members of the public flagged a risk that FEMA’s later review of local permit determinations could find some assessments inadequate, leaving developers exposed to additional costs or mitigation requirements.

The council’s adoption means the city must start the FEMA reporting process; Council members and staff also acknowledged ordinance language may need refinement as FEMA issues additional guidance. The council closed the public hearing at 7:00 p.m. and directed staff to proceed under the adopted permit-by-permit framework.

Next steps: staff will begin reporting permit reviews to FEMA per the agency’s timetable and will return to the council if model rules or new FEMA guidance require ordinance updates.