On July 15, 2024, FEMA issued notice to Wasco County demanding that Pre‐Implementation Compliance Measures (PICM) for National Flood Insurance Program (NFIP) participating communities in Oregon shall be required no later than January of 2025. The PICMs are designed to ensure that the NFIP complies with the Endangered Species Act (ESA), which requires a no net loss for floodplain functions. In order to comply, FEMA demands that Wasco County adopt one of the following regulatory choices:

  1. Adopt a Model Ordinance that considers impacts to species and their habitat and requires mitigation to a no net loss standard; or
  2. Permit-by-Permit Habitat Assessment and Mitigation Plan for development; or
  3. Prohibition on Development in the floodplain.

See National Flood Insurance Program – Endangered Species Act Integration in Oregon for more information.

View and download a copy of the FEMA’s 2024 Draft National Flood Insurance Program NFIP-ESA Integration in Oregon Draft Model Ordinance (Produced by FEMA – Region 10).

View and download a copy of FEMA’s 2024 Regional Guidance For Floodplain Habitat Assessments and Mitigation in Oregon (Produced by FEMA – Region 10).

Scroll to Wasco County’s Draft Ordinance

History and Background of Issue

  • In 2009, the Audubon Society of Portland, National Wildlife Federation, Northwest Environmental Defense Center and the Association of Northwest Steelheaders sued FEMA for failure to consult under the Endangered Species Act (ESA) with respect to administration of the National Flood Insurance Program (NFIP). (See Audubon Society of Portland et. al. v. FEMA.).
  • In 2016, the National Marine Fisheries Services (NMFS) issued a document called the Oregon NFIP Biological Opinion (BiOp). The BiOp found that current floodplain development practices jeopardize 16 ESA-listed fish species, as well as the killer whales that rely on healthy populations of those fish. NMFS recommended that FEMA establish new requirements for “no-net-loss of floodplain function” in designated areas.
  • In 2023, FEMA published a Notice of Intent (NOI) to prepare an Environmental Impact Statement, and opened a 92 day public comment scoping period to evaluate potential effects of the plan on the Oregon communities currently eligible for NFIP.
  • July 15, 2024, FEMA issued notice to Wasco County demanding that Pre‐Implementation Compliance Measures (PICM) for National Flood Insurance Program (NFIP) participating communities in Oregon shall be required no later than January of 2025.

Area Impacted

31 of 36 Oregon Counties and numerous urban areas are included in the Oregon NFIP BiOp Action Area. Wasco County is a participant within the National Flood Insurance Program, and all properties within the Special Flood Hazard Area must comply with FEMA’s no-net-loss to floodplain functions standard.

Source: Oregon Implementation Plan for NFIP-ESA Integration.

Use Wasco County GIS Tool to view property within the existing (1984) floodplain maps.

Use Flood Map Comparison Tool to view and compare property that is or may be affected by FEMA’s proposed floodplain maps.

Requirements for Compliance

Floodplain development will require no-net-loss of the three floodplain functions: (1) Floodplain Storage; (2) Water Quality; and (3) Vegetation. FEMA’s strategies to protect floodplain functions involve mitigating the removal of undeveloped space and decreasing impervious surface in the floodplain, avoiding the loss of trees, and in some circumstances, water quality pollution mitigation.

No-Net-Loss to Floodplain Functions

Both the Model Ordinance and the Permit-by-Permit implementation measures must comply with the no-net-loss to floodplain functions standard. FEMA requires a “Qualified Professional” to examine or write the development plan to ensure the no-net-loss standard.

1. Floodplain Storage

Undeveloped Space. Development shall not reduce the fish-accessible and egress-able undeveloped space within the special flood hazard area. Reductions of undeveloped space must be avoided or off-set. This includes all undeveloped space within the mapped floodplain. Lost undeveloped space must be replaced with fish-accessible and egress-able compensatory volume based on ratios set by FEMA. (See below No-Net-Loss Standards Table).

Impervious Surfaces. Development shall not result in a net increase in impervious surface area within the SFHA. Impervious surface mitigation shall utilize low impact development or green infrastructure. If low impact development or green infrastructure is not feasible, stormwater retention (see below Water Quality) is required to ensure no increase in peak volume or flow and to maximize infiltration, and treatment is required to minimize pollutant loading. (See below No-Net-Loss Standards Table).

2. Water Quality

Stormwater Management. Any development that cannot mitigate to a no-net increase in impervious surface area within the SFHA must include a plan demonstrating: (1) water quality (pollution reduction) treatment for post construction stormwater runoff; and (2) water quantity treatment (retention facilities) unless the outfall discharges into the ocean.

Riparian Buffer Zone. If the development is within the floodplain, then FEMA’s additional Riparian Buffer Zone (RBZ) standards may apply. The RBZ is measured from the ordinary high-water line of a fresh waterbody (lake, pond, intermittent, perennial stream) or mean higher-high water of a marine shoreline or tidally influenced river reach to 170-feet horizontally on each side of the stream or river. The riparian buffer zone includes the area between these outer boundaries on each side of the stream, including the stream channel.

Non functionally dependent development within the RBZ is subject to FEMA’s additional “beneficial gain standard”. This additional standard requires that an area within the same reach of the project and equivalent to 5% of the total project area within the RBZ shall be planted with native herbaceous and shrub vegetation and designated as open space.

  • Functionally dependent uses, meaning those uses that cannot perform their intended purpose unless they are located or carried out in proximity to water are only subject to the no-net-loss standards for development in the RBZ. However, ancillary features in the RBZ (including manufacturing support facilities and restrooms) are subject to the “beneficial gain standard” in addition to no-net-loss standards.
  • All other uses in the RBZ require are subject to the “beneficial gain standard” in addition to no-net-loss standards.

3. Vegetation

Trees. Development shall result in no-net-loss of trees 6-inches diameter breast height (dbh) or greater within the SFHA. This requirement does not apply to silviculture where there is no development.

Riparian Buffer Zone. Trees 6-inches dbh or greater that are removed from the RBZ, Floodway, or RBZ-fringe must be replaced based on set ratios set by FEMA. (See below No-Net-Loss Standards Table). Replacement trees must be native species that would occur naturally in the Level III ecoregion of the impact area.

Source: NFIP-ESA Integration in Oregon Draft Model Ordinance, No Net Loss Standards

Consequences for Failing to Comply

Potential consequences for failure to comply with FEMA’s no-net-loss requirements include:

  • FEMA Compliance Visit (Audit of Floodplain Development)
  • Suspension from the NFIP
  • Loss of the availability of NFIP Insurance Policies
  • No consideration for disaster relief funding

Wasco County’s Path Forward

In response to FEMA’s demands, on August 21, 2024, the Wasco County Planning Division sought direction from the Board of Commissioners for pursuing legislative amendments to the County’s Flood Hazard Overlay Zone (OZ‐1). The Board of Commissioners approved pursuing the adoption of FEMA’s 2024 Draft National Flood Insurance Program NFIP-ESA Integration in Oregon Draft Model Ordinance as the County’s Flood Hazard Overlay Zone (OZ-1).

The Wasco County Board of Commissioners August 21, 2024, public hearing recording is available for viewing, and the “8.21.2024 Regular BOCC Session Packet” is available for download.

On August 22, 2024, Oregon’s Congressional Delegation submitted a letter to the Administrator of the United States Federal Emergency Management Agency, expressing concerns and requesting additional time for consideration.

September 2024

FEMA’s Model Ordinance must be reviewed and vetted by Planning Division staff to verify that it meets applicable Oregon state law requirements. Given the circumstances, Planning staff will also ensure, to our best ability, that the public review and adoption of FEMA’s Model Ordinance meets the purpose of Wasco County’s Land Use and Development Ordinance to: “[P]romote public health, safety, convenience, and general welfare…” for our citizens. Oregon state due process notification requirements and opportunities for public participation will be followed.

On September 26, 2024, Governor Tina Kotek submitted a letter to the to the Administrator of the United States Federal Emergency Management Agency, expressing concerns and requesting that FEMA pause its work on pre-implementation compliance measures (PICM).

October 2024

On September 30, 2024, Wasco County Planning Staff submitted a Post-Acknowledgment Plan Amendment to the Oregon Department of Land Conservation and Development with the proposed amended Flood Hazard Overlay (OZ-1) criteria.

Draft flood hazard overlay related definitions and the Flood Hazard Overlay (OZ-1) Zone criteria are provided.

05122025_Combined_Chapter_1_&_3_OZ-1_UpdatesDownload
  • A Measure 56 Notice will be mailed to affected landowners on October 15, 2024.
  • A Public Meeting was held at the Tygh Valley Community Center for October 21, 2024, from 5:00pm to 7:00pm.

November 2024

The Wasco County Planning Commission and the public will have an opportunity to review the Flood Hazard Overlay Zone (OZ‐1) draft, ask questions, provide feedback, and propose alterations. The Planning Commission will then make a public recommendation in the matter.

  • The first evidentiary Public Hearing before the Wasco County Planning Commission was held on November 5, 2024. The Planning Commission voted to recommend adoption of admendments to the Flood Hazard Overlay Zone (OZ-1).

December 2024

The Wasco County Board of Commissioners and the public will have an opportunity to review the Flood Hazard Overlay Zone (OZ‐1) draft and the Planning Commission recommendation, provide feedback, propose alterations, and ultimately, make a decision in the matter.

  • On November 27, 2024, FEMA provided a modified 2024 Draft National Flood Insurance Program NFIP-ESA Integration in Oregon Draft Model Ordinance (Produced by FEMA – Region 10) and a modified 2024 Regional Guidance For Floodplain Habitat Assessments and Mitigation in Oregon (Produced by FEMA – Region 10).
  • On December 4, 2024, FEMA provided the following message to Wasco County Planning: “As of December 3, 2024, we have received Wasco County’s PICM selection of the Model Ordinance and that Wasco County will not implement PICM by the December 1, 2024, deadline.   Wasco County has been defaulted to the Permit-by-Permit approach until the PICM selected can be implemented…”
  • The Planning Division requested a continuance to further examine FEMA’s Model Ordinance modifications.
  • During the December 9, 2024 hearing, the Board of Commissioners voted to continue the matter until May 7, 2024.
  • Board Packet: https://www.co.wasco.or.us/departments/board_of_county_commissioners/agenda_board_packet_and_minutes.php

May 2025

On May 7, 2025, Wasco County Board of Commissioners voted to continue the matter until July 2, 2025.

July 2025

On July 2, 2025, the Wasco County Board of Commissioners resumed the hearing and Planning Division Staff provided a brief.

11052024_OZ-1_PowerPointDownload

August – September 2025

  • FEMA has issued its Draft Environmental Impact Statement and updated Draft Implementation Plan for National Flood Insurance Program – Endangered Species Act Integration in Oregon.  This is directly related to FEMA’s Pre-Implementation Compliance Measures (PICM) for development in the Special Flood Hazard Area.
  • The DRAFT EIS can be found here and provides three alternatives:
    • No Action Alternative (Alternative 1): Under the No Action Alternative, implementation of the NFIP in the Oregon plan area would continue as is.  (No change in our local flood ordinance…we would not implement No-Net-Loss standards for floodplain development). 
    • No Net Loss with Exception for Project-Specific ESA Compliance Alternative (Alternative 2): Under Alternative 2, all communities participating in the NFIP in the Oregon plan area will be required to meet the standards of No-Net-Loss for NFIP-ESA integration; however, under this alternative, a development proposal that has project-specific ESA compliance through other means would not need to implement the No-Net-Loss standards. (An example: A waterway is being dredged and needs a Section 404 permit from the United States Army Corps of Engineers. While obtaining the Section 404 permit, the developer had to obtain a separate Endangered Species Act review and permit. In this case, the developer would not have to receive a seperate No-Net-Loss review/permit).  
    • No Net Loss Without Exceptions for Project-Specific ESA Compliance (Alternative 3): Under Alternative 3, development in the Oregon plan area would be subject to the No-Net-Loss standards regardless of whether it has project-specific ESA compliance through other means.  (Same as Alternative 2, but without the ability to avoid No-Net-Loss standards even if your project has been given the green light from a separate ESA compliance permit).