TO: Mayor and City Council
THROUGH: Krishna Namburi, Interim City Manager
FROM: Kristin Retherford, Director, Community Planning and Development Department
SUBJECT:
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Ordinance Bill amending the Salem Revised Code Chapter 220, 300, and 601 relating to Floodplain Development Permit requirements in the City of Salem
Ward(s): All Wards
Councilor(s): All Councilors
Neighborhood(s): All Neighborhoods
Result Area(s): Natural Environment Stewardship; Safe and Healthy Community; Safe, Reliable and Efficient Infrastructure
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SUMMARY:
summary
Ordinance Bill No. 6-25 (Attachment 1) relates to Floodplain Development Permits within the City of Salem. The amendments require developers to complete a Mitigation Assessment for floodplain projects, ensuring "no net loss" of flood storage, water quality, or vegetation. Approval of the code amendments prevents potential Federal Emergency Management Agency (FEMA) sanctions, National Flood Insurance Program suspension or Community Rating System termination, thus preserving eligibility for federally backed flood insurance in Salem, flood insurance discounts, and federal disaster relief.
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ISSUE:
Shall City Council pass Ordinance Bill No. 6-25 amending the Salem Revised Code (SRC) updating Chapter 220 (Site Plan Review), Chapter 300 (Procedures for Land Use Applications and Legislative Land Use Proposals), and Chapter 601 (Floodplain Overlay Zone) to address Floodplain Development Permit requirements within the City of Salem?
RECOMMENDATION:
recommendation
Pass Ordinance Bill No. 6-25 amending the Salem Revised Code (SRC) updating Chapter 220 (Site Plan Review), Chapter 300 (Procedures for Land Use Applications and Legislative Land Use Proposals), and Chapter 601 (Floodplain Overlay Zone) to address Floodplain Development Permit requirements within the City of Salem.
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FACTS AND FINDINGS:
The proposed text of the amendments is included as Exhibit A of the Ordinance Bill (Attachment 2). The proposed code amendments within the Ordinance Bill (Attachment 1) are generally summarized below:
1. SRC Chapter 220.005 (Site Plan Review) is amended to:
a. Eliminate the submission of a geotechnical report as a Class 3 Site Plan review trigger; and
b. Add the submission of a Mitigation Assessment as a Class 3 Site Plan Review trigger.
2. SRC Chapter 300 (Procedures for Land Use Applications and Legislative Land Use Proposals) is amended to:
a. Update Table 300-2 (Land Use Applications by Procedure Type) to establish a Class 1 Floodplain Development Permit and Class 2 Floodplain Development Permit;
b. Update Table 300-3 (Expiration and Extension of Approvals) to establish an expiration for Class 1 and Class 2 Floodplain Development Permits as four years.
3. SRC Chapter 601 (Floodplain Overlay Zone) is amended to:
a. Include updated and additional definitions in SRC 601.005;
b. Update the duties of the Floodplain Administrator listed in SRC 601.040 to include Mitigation Assessment record keeping;
c. Modify the Floodplain Development Permit process and requirements of SRC 601.045 to align with other permit types within the Salem Revised Code and to add a Type 1 and Type 2 Floodplain Development Permit:
d. Reorganize the Floodplain Overlay Zone Variance section in SRC 601.050;
e. Update the flood zone construction standards in SRC 601.075 to clarify enclosed areas below the base flood elevation are not to be used for parking and storage; and
f. Add a new section of code for establishing the Mitigation Assessment requirement.
In order for a code amendment to be approved, the City Council must find that they comply with the applicable approval criteria. SRC 110.085(b) establishes the approval criteria applicable to amendments to the Unified Development Code (UDC).
Findings demonstrating the proposal’s conformance with the applicable approval criteria are included in Ordinance Bill No. 6-25 (Attachment 1).
BACKGROUND:
1. NFIP and the Endangered Species Act
The Federal Emergency Management Agency (FEMA) is mandated to evaluate whether National Flood Insurance Program (NFIP) activities impact listed threatened or endangered species protected under the Endangered Species Act (ESA). The agency must consult with the National Marine Fisheries Service (NMFS) whenever its actions, funding, or authorizations may affect a listed endangered or threatened species or adversely impact their habitats. In 2009, the Portland Audubon Society filed a lawsuit against FEMA, claiming that the agency failed to consult with NMFS regarding the effects of implementing the NFIP in Oregon on the designated species within the State's watersheds. A settlement was reached in 2010, and informal consultations with NMFS began shortly thereafter. On April 4, 2016, NMFS provided a Biological Opinion (BiOp) stating that the NFIP in Oregon was likely to jeopardize the critical habitat and continued existence of 16 anadromous fish species and the Southern Resident Killer Whale, all of which are listed as threatened or endangered under the ESA. A Reasonable and Prudent Alternative (RPA) included within the BiOp proposed measures to avoid jeopardizing listed species and avoid adversely modifying critical habitat, which requires FEMA to change the minimum requirements for NFIP participation for communities in Oregon.
Additional information on the NFIP - Endangered Special Act Integration in Oregon can be found on FEMAs website. This webpage also includes FEMAs Habitat Assessment Guide: <https://www.fema.gov/about/organization/region-10/oregon/nfip-esa-integration>
2. FEMA Pre-Implementation Compliance Measures:
On July 15, 2024, the Federal Emergency Management Agency (FEMA) notified communities that new National Flood Insurance Program (NFIP) standards would be required for participating communities in Oregon. FEMA provided three options for communities to comply with the new NFIP requirements, also referred to as Pre-Implementation Compliance Measures (PICM). These measures are considered short-term measures that communities are required to adopt to comply with the Endangered Species Act (ESA) requirements under the NFIP. FEMA has developed these measures to address Reasonable and Prudent Alternative (RPA) Element 2 (Interim Measures) in the 2016 National Fisheries and Marine Service (NMFS) Biological Opinion (BiOp), a result of several lawsuits related to ESA protections.
The three PICM options were to: 1. Restrict all new development in the floodplain; 2. Adopt a model ordinance drafted by FEMA; or, 3. Implement a permit-by-permit approach that requires a Habitat Assessment for all new development in the floodplain. FEMA directed local communities to notify them by December 1, 2024, which PICM path they would implement.
At the November 25, 2024, City Council meeting, Council directed City Staff to move forward with code amendments to implement a Permit-by-Permit approach and require a Habitat Assessment for all new development in the floodplain (File No. 24-455). City Staff notified FEMA of the City’s chosen PICM path on December 2, 2024.
FEMA indicated communities would default to the Permit-by-Permit approach effective December 1, 2024, and have until July 31, 2025, to adopt their chosen PICM option performance standards into local floodplain ordinances. However, FEMA has indicated that communities must still implement measures in the interim to ensure ESA compliance.
PICM is intended to address ESA compliance as an interim measure while FEMA undertakes a NEPA review of FEMA’s proposed long term implementation measures. PICM will be required through the remainder of the Environmental Impact Statement process, which is expected to end in 2026. At that time, long term implementation measures will need to be considered and adopted in most developed Oregon communities. This could include a new model ordinance to be adopted by local communities, which would be brought back to the Planning Commission for review.
3. Land Development Impacts:
Salem has nearly 4,000 acres within its city limits identified as Special Flood Hazard Area (SFHA), with approximately 3,000 existing structures located in the SFHA. Based on permit data from the last five years, an average of six new structures are built in the SFHA annually, indicating ongoing but limited development within the regulated SFHA.
Most undeveloped SFHA land is designated for public use as parks or open spaces, which limits development. However, around 800 acres remain zoned as residential, mixed-use, industrial, and commercial in the Salem Comprehensive Plan. This undeveloped acreage represents future development potential within the SFHA, where compliance with NFIP requirements, including floodplain Habitat Assessments and “no net loss” standards, will be challenging but regulated to ensure ecological protection, community safety, and compliance with NFIP standards.
ALTERNATIVES
City Council may:
A. Pass Ordinance Bill No. 6-25; or,
B. Decline to pass Ordinance Bill No. 6-25.
Laurel Christian
Infrastructure Planner III
Attachments:
1. Ordinance Bill No. 6-25
2. Exhibit A to Ordinance Bill No. 6-25