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HomeMy WebLinkAbout2024 04 15 Staff Report for May-01_Flood Damage_Chapter15.15 final 1 JEFFERSON COUNTY PLANNING COMMISSION TO: Honorable Chair and Members of the Planning Commission FROM: Phil Cecere, Floodplain Administrator and Chief Building Official Brent A. Butler, AICP, Chief Strategy Officer DATE: May 1, 2024 SUBJECT: Flood Damage Prevention – Jefferson County Code Chapter 15.15 _____________________________________________________________________________________ STATEMENT OF ISSUE: On February 7, 2024, and January 17, 2024, the Chief Strategy Officer (CSO) delivered a presentation regarding proposed amendments to Chapter 15.15 of the Jefferson County Code (JCC) – Flood Damage Prevention. As part of these presentations, the CSO summarized proposed revisions to Chapter 15.15 JCC that would bring it into compliance with the Federal Emergency Management Agency (FEMA) regulations as more fully set forth in FEMA’s model ordinance, and recommended to the Planning Commission to identify how many public input sessions may be necessary and to direct staff to schedule a public hearing on the proposed revised Flood Damage Prevention ordinance. The Planning Commission accepted the staff recommendations, and staff published notice of the March 6th public hearing. At the March 6th public hearing, the CSO informed the Planning Commission that while the Department of Ecology (ECY) representative had already reviewed the ordinance, FEMA had neither reviewed the draft ordinance nor submitted any agency comments. Consequently, staff recommended that the Chair open the public hearing to accept testimony, and continue it to 6 PM on May 1, 2024, in the hope that FEMA’s comments would be before the Planning Commission prior to deliberations. Additionally, staff sought to ensure that anyone who read the advertised announcement of the March 6th public hearing in the newspaper of record, the Leader, would know that the Planning Commission continued the hearing to May 1, 2024. Given the additional review time, staff consulted with the Office of the Prosecuting Attorney and now propose additional edits to improve the organization of Chapter 15.15 JCC and to clarify the permit pathways for regular permits and variances by amending Chapter 18.40 JCC (see Exhibit A – Draft Ordinance). Additionally, Commissioner Stroming requested information about the regulatory framework associated with the Door 2 pathway during the Planning Commission deliberations at the public hearing on March 6, 2024. The background section is now updated to share what we know about the Door 2 pathway. BACKGROUND: Created by Congress in 1968, the National Flood Insurance Program (NFIP) provides insurance to help reduce the socio-economic impact of floods. Flood insurance is a separate insurance policy that can cover buildings, the contents in a building, or both. The NFIP provides flood insurance to property owners, renters, and businesses, and having this coverage helps them recover faster when floodwaters recede. The NFIP is a public-private partnership between the federal government, the property and casualty insurance 2 industry, states, local officials, lending institutions, and property owners. The NFIP is administered by FEMA, while insurance policies are sold and serviced by a network of more than 50 insurance companies and the NFIP directly. FEMA conducts its audit through a state agency, ECY to ensure the Floodplain Management regulations meet or exceed the minimum criteria outlined in 44 Code of Federal Regulations (CFR) Part 60.3 entitled Flood plain management criteria for flood-prone areas. In the fourth quarter, ECY conducted a field survey of the Jefferson County floodplain to identify new or substantially improved floodplain development and requested the associated permit files for auditing purposes. ECY also requested copies of all permits issued by Jefferson County over the last five years where the county authorized construction in the regulatory floodplain and met with county staff as part of the Customer Assistance Visit (CAV) audit that should occur once every five years. The regulatory floodplain areas are commonly referred to as the “area of special flood hazard,” the “special flood hazard area” (SFHA)areas subject to the one percent chance flood or the 100-year flood area. All of these terms denote areas subject to the provisions of the attached ordinance (see Attachment 1 – JCC Chapter 15.15 Flood Damage Prevention). On January 10, 2024, county staff met with the FEMA representative at ECY to discuss required or recommended amendments to Chapter 15.15 Flood Damage Prevention. Some of these revisions are required to bring Jefferson County into compliance with the model flood damage prevention ordinance or, alternatively, to implement the criteria of a voluntary program known as the Community Rating System (CRS), that reward communities with further reductions in flood insurance premiums commensurate with the communities’ adoption of higher regulatory standards. The Jefferson County Ordinance, Chapter 15.15 JCC responds to an earlier lawsuit, as more fully set forth below. FEMA NFIP Biological Opinion Compliance A 2004 lawsuit held that FEMA had a responsibility to consult with the National Marine Fisheries Service (NMFS) about impacts of the NFIP on listed species under Section 7 of the Endangered Species Act (ESA). The plaintiffs (the National Wildlife Federation) believed that the operation of the NFIP resulted in impacts on several species listed under the ESA and their critical habitats within Puget Sound. A consultation is the mechanism used to review federal programs or permitting activities and determine what is needed to address any impacts to endangered species. Consultations are handled either by the National Marine Fisheries Service (NMFS) or the United States Fish and Wildlife Service (USFWS). The result of that consultation was the issuance in September 2008 by NMFS of a Biological Opinion (BiOp) under the ESA. The BiOp prepared for the NFIP found that some elements “jeopardized” several ESA- listed species in the Puget Sound, including Chinook salmon and Orca whales. These elements included FEMA floodplain mapping, the community rating system and the minimum development standards. The BiOp includes “reasonable and prudent alternatives” (RPAs) that must be implemented by the federal agency The most critical element for purposes of local government administration of floodplain regulations relates to FEMA’s minimum development criteria, which local jurisdictions are required to adopt to participate in the NFIP. RPA Element 3 directs FEMA to tighten significantly the minimum development criteria that is used by local governments to regulate floodplain development. NMFS prepared a description in February 2011 of what is required by RPA Element 3 in the publication Reasonable & Prudent Alternative Element 3: Floodplain Management Criteria [Pdf]. 3 Affected jurisdictions such as Jefferson County were given a deadline of September 23, 2011, to show compliance with the BiOp requirements. Jurisdictions could elect one of three “doors” to achieve compliance. See FEMA’s description of compliance options here. A jurisdiction could choose to (1) adopt a model ordinance drafted by NMFS (Door 1), (2) adopt a programmatic approach utilizing existing regulations and supplementing with new regulations and policies, as needed (Door 2), or (3) undertake a project-by-project review to determine compliance with the BiOp (Door 3). A jurisdiction operates under Door 3 (permit-by-permit) until a Door 1 or Door 2 proposal has been approved by FEMA. Jefferson County’s Response to Bi-Op Requirements - Jefferson County’s attempt to comply with the Door 1 or 2 approach was unsuccessful, and Jefferson County is currently reviewing projects on a case- by-case basis (Door 3) for compliance with the BiOp, utilizing its new procedures in JCC 15.15. In response to Commissioner Stroming inquiry, the provisions regarding Door 2 are attached as Exhibit B. ANALYSIS: Through ECY, FEMA provided technical assistance to ensure Jefferson County’s NFIP compliance. A specific focus is Chapter 15.15 JCC entitled Flood Damage Prevention. ECY’s clear and concise guidance includes how to implement best available science is reflected in Comprehensive Plan Goal EN- G-6 of the Jefferson County Comprehensive Plan, which states: “Continue to implement, periodically review, and update critical area regulations under the Jefferson County Critical Areas Ordinance (CAO) consistent with GMA requirements, including best available science.” This comprehensive plan goal is implemented through Policy EN-P-6.2 of the Comprehensive Plan which states: “Continue to protect flood hazard areas from development and uses that compromise the flow, storage, and buffering of flood water, normal channel functions, and fish and wildlife habitat, and minimize flood and river process risk to life and property under the Critical Area Ordinance (CAO). Continue to periodically review and update CAO regulations relating to flood hazards, including best available science.” Since the proposed revisions to Chapter 15.15 JCC are consistent with the Comprehensive Plan, as set forth above, JCC provisions that guide the amendment process are codified in JCC 18.45.010 (3), which states: “Planning Commission Role. The Jefferson County planning commission is an advisory body that shall make recommendations to the county commissioners on all Comprehensive Plan matters, including amendments to the plan text and land use map, development regulations and subarea plans.” and JCC 18.45.090 (1) (a): “(1) Initiation. The text of the county’s development regulations (RCW 36.70A.030(7)) may be amended at any time, provided the amendment is 4 consistent with the Jefferson County Comprehensive Plan and land use map…..(a) When consistent with the [comprehensive] plan, at any time at the direction of the board of county commissioners or by the planning commission pursuant to RCW 36.70.550;” Based on the foregoing discussion, the CSO recommends that the Planning Commission concur with the conclusion that these changes implement Comprehensive Plan Goal EN-G-6, and recommend amendments to JCC 15.15, and JCC 18.40 to incorporate “best available science.” RECOMMENDATION: The Planning Commission should recommend that the Board of County Commissions hold a public hearing to approve the Draft Ordinance Attached as Exhibit A, which revises the March 6, 2024 public hearing draft.