Your Flood Insurance & Property Rights are at Risk

If you or your clients own property in or near a Special Flood Hazard Area, you need to know the following information!

In response to ongoing litigation against the United States Federal Emergency Management Agency (FEMA) by several environmental advocacy groups, FEMA announced that by December 1, 2024, every local government that participates in the National Flood Insurance Program (NFIP) across most of Oregon will be required to select one of three endangered species act compliance measures (referred to by FEMA as “Pre-Implementation Compliance Measures” or “PICMs”).  Those measures are designed to achieve a “not net loss of floodplain function” standard and include the following options:

Pathway 1: Adopt the FEMA’s new model floodplain management ordinance that restricts development and requires mitigation to a no net loss standard.

Pathway 2: Review individual development proposals and require permit-by-permit habitat mitigation to achieve no net loss of floodplain function.

Pathway 3: Prohibit all new development in the floodplain

According to FEMA, beginning in January 2025 all NFIP participating communities must report floodplain development and mitigation activities to FEMA.  Full implementation of PICMs is required by June 2025.  FEMA will begin enforcement against non-compliant communities in 2026, beginning with a Community Assistance Visit.  Ultimately, communities that don’t comply could lose access to federal flood insurance and disaster assistance for their residents.

If you or your clients have property in a floodplain, you need to be aware that development activities on the property may be severely restricted due to these forthcoming requirements.

Both the Governor and Oregon’s Congressional Delegation have asked FEMA to change course.  Unfortunately, FEMA’s official response is that they will continue to move forward with the deadlines described above.

Oregon REALTORS® is part of a coalition including business groups, local governments, housing advocates, property rights organizations, and property owners – that is pushing back on FEMA’s unlawful requirements.  In September our coalition filed an Amicus brief in the ongoing litigation brought by the environmental advocacy groups.  When FEMA originally proposed revisions to the NFIP in Oregon in 2016 our coalition filed its own federal lawsuit to stop them.  Unfortunately, our lawsuit was dismissed for lack of “ripeness” and “standing” because FEMA had not yet required jurisdictions to take action.  That has now changed, and we are actively evaluating our legal options.

Our coalition has met with top FEMA/NFIP officials and we are actively coordinating with NAR and other national advocacy groups as well as state and federal elected officials.

What YOU can do

–  If you or a client are a landowner who has property in a Special Flood Hazard Area, and you or your client receive any permit denials, fail to receive Measure 56 notices, or face other issues due to these compliance measures, please contact us at info@floodplainprotection.org. This information will be critical to informing our coalition’s advocacy and legal strategies to push back on these new program requirements.

–  Contact your local elected officials or planning director to learn more about how your community is planning to respond to FEMA’s December 1^st deadline, and how it may impact your property and future development plans. Note that jurisdictions are being warned that complying with FEMA’s PICMs may violate Oregon land use law and some jurisdictions may not make a selection by December 1. According to FEMA, jurisdictions who do not make a selection will default into the permit-by permit habitat assessment and mitigation pathway.

–  Pass this information on to your clients so that they are aware of the situation

–  Reach out to your members of Congress to let them know how concerned you are about FEMA’s PICMs and to encourage them to keep up the pressure on FEMA to change course.

–  Contact FEMA to implore FEMA to halt the PICMs and to complete the legally required National Environmental Policy Act (NEPA) review process before requiring cities and counties to modify their floodplain development standards.

We will continue to keep you posted on this topic.  Please keep an eye out for future emails regarding the NFIP and Endangered Species Act in Oregon.  For more information on this topic visit Oregonians for Floodplain Protection.  Additionally, here is a link to a list of FAQs produced by the Department of Land Conservation and Development.  If you have questions, please direct them to info@floodplainprotection.org