Quality Living: FEMA’s New Floodplain Development Standards – What’s at Stake for Oregon?

In this episode of Quality Living With Peaceful Support, host Amanda Whittemore talks with Jeremy Rogers, General Counsel and Director of Government Affairs at Oregon Realtors, about FEMA’s proposed strict floodplain development standards in Oregon, which stem from environmental lawsuits over endangered fish. These new rules, unique to the state, would require a “no net […]

Episode Transcript

(00:14):
Hello. Hello. Thank
you, KCIW
listeners, and
thank you to our volunteers,
our coordinators,
everyone who devotes their time to produce this
radio program
and the entire radio station. It is fully
run from volunteers,
and we love all the effort that comes

(00:35):
through. It is really remarkable.
We are so grateful. And if you are
not sure how to participate and you want
to be one of the sponsors, volunteers,
or coordinators,
give a call to (541)
661-4098.
I'm Amanda Whittemore. We are here on the

(00:55):
Quality Living with Peaceful Support program.
And
as you may imagine,
this is a show where we do exactly
that. We give a couple of minutes, about
twenty ish, twenty five or so,
solid devoted minutes to actually listen
and hear two really important
activities

(01:15):
and or issues
or ways to find solutions
within our community.
And tonight, we have a really important guest,
as they all are. However, this is a
super
moment of
almost urgency. So we just jumped on as
quick as we could.
We have mister Jeremy Rogers with us.

(01:37):
And Jeremy is actually the general counsel for
Oregon Realtors.
Hey, Jeremy.
Hey. How are you? Doing lovely. Thank you
so much for taking your time out of
your busy schedule with all the activities that
you do.
Of course. No. Thanks so much for reaching
out and engaging
with us on this. I'm really glad for

(01:57):
the opportunity to to tell more folks about
what's happening and hopefully,
get folks to to engage.
Yes. Yes. Participation
is where it's at, and thankfully, our listeners
are pretty active.
And even if they are not sure how
to get in touch with us
through the call in phone number, we always
have the email contact at k c I

(02:18):
w dot o r g and they can
even reach
Jeremy Rogers directly.
We'll give our listeners all that information. But
first, let's hear
about who is Jeremy and what is Jeremy
doing? What is this general counsel for Oregon
Realtors about and what other titles do you
have?
Hey. Thanks so much. Well, so I'm a
general counsel and the government affairs director director

(02:38):
at Oregon Realtors. Oregon Realtors is the statewide
trade association for real estate professionals in Oregon.
So anyone who's ever bought or sold a
house,
most likely worked with somebody who is a
member of the Oregon Realtors.
Mhmm. And,
I also
and relevant to the topic today, am the

(03:01):
board president of,
an organization called Oregonians
for Floodplain Protection, which
consists of,
business groups,
cities,
counties,
and property owners from across Oregon who are
very concerned
about a new plan that FEMA has for
the National Flood Insurance Program

(03:23):
in Oregon that would,
severely restrict,
what type of development people could do with
their properties.
And has this plan been enacted in any
other states?
No. This is an Oregon only plan.
That's a little concerning.
Yeah. It's, it is.

(03:43):
There's actually temporary rules in effect right now
that Oregon communities
are so so most Oregon communities already
are
having to live with some of these rules
as they then finalize the final plan. And
that's where there's an opportunity right now for
folks to to comment on that.

(04:03):
But this all came from a lawsuit
from environmental groups back in 2009
where they sued FEMA,
regarding FEMA's implementation
of the National Flood Insurance Program, specifically in
Oregon,
claiming that,
the National Flood Insurance Program was,

(04:25):
causing development in flood plains, and then that
development was harming endangered
fish.
And,
as a result, FEMA settled
that lawsuit with the environmental groups,
and,
is developing this plan to implement an Oregon
that would dramatically reshape,

(04:46):
what the development standards are for for the
NFIP
here. And if communities don't comply with it,
they would be kicked out of the program,
meaning that,
citizens and businesses in the jurisdictions and, you
know, in the cities and counties across Oregon
that have flood plains and that are part
of the National Flood Insurance Program would no
longer be able to get federal flood insurance

(05:08):
and which means they would, no longer be,
able to receive disaster assistance from the federal
government if there was a flood disaster. And
also, would not be able to get federally
backed mortgages because, those mortgages require access to
to flood insurance.
Holy goodness.
Does this have anything to do when

(05:30):
there was a big controversy with the Smith
River,
the Wild Rivers organization, a nonprofit that had
something to do with FEMA. And if I
don't have all the exact information, I had
a guest that was on the show and
it's kinda like sparking some memory,
I'll have to revisit
that show.
Yeah. You know, I'm not sure if they
specifically were involved. The original lawsuit

(05:52):
that sparked this all came from, the Audubon
Society
back in 2009.
And then there's been some other,
sort of statewide and national environmental groups, but,
I'm I'm not, I'm not familiar with the
with the involvement of that particular group. Okay.
Yeah. I just you know, there's so much

(06:12):
there's so much that happens in the state
of Oregon, you know, in protecting our rights
and protecting our ability to really to as
receive
relief when there's a disaster, I think, is
a pretty important one.
Yeah. I know. It's it's critical. There's about
260
communities across Oregon that,
participate in the National Flood Insurance Program,

(06:34):
and those span across 31 of 36 Oregon
counties.
And really, you know, you have some communities
where,
a significant portion of their developable land, whether
that be existing
housing and commercial areas or the areas available
for future development,
are in the one hundred year flood plain.

(06:56):
Mhmm. You know, just as a base you
know, based on the the geography and topography
of the region that they're located in.
And so this
plan is, you know, has has really severe
consequences,
for those communities. And then, also, you know,
you have some communities where maybe only a
small portion of their developable land is in

(07:18):
the flood plain, but,
that portion is significant. For example, in the
Portland area,
the Portland Harbor, which they call the working
waterfront, where is really one of the larger
sources of industrial
jobs in the region.
You know, and a lot of jobs that
pay very high wages but only require,
you know,

(07:39):
or that don't require a college degree,
are available there. And so,
this would have significant
impacts,
really, both for for the small communities where
they have a lot of land in the
flood plain and even for the largest communities
where they don't but have significant activities going
on there. Mhmm. Mhmm.

(07:59):
This is just really
beyond unique, like you mentioned, critical. And how
can our listeners
get more information? We're gonna give them as
much as we can in the next fifteen
minutes here. However,
we we really wanna, be able to plug
them with hands on activities and or ability
to do their own research.

(08:19):
Yeah. So what I would recommend is, if
you go to the website for Oregonians for
floodplain protection,
which is floodplainprotection.org,
on that website,
you'll be able to,
read about FEMA's plan.
You'll be able to access
summary materials that sort of describe some of
the impacts,

(08:41):
and, also, the links to comment
are there. And FEMA is accepting public comment
through,
Monday,
October 6,
11:59PM
eastern time or 08:59PM,
Pacific time.
And,
if it's okay, maybe I'll just explain a

(09:01):
little bit more about the details of this
plan so that folks can kind of comprehend,
you know, exactly what what FEMA is asking
of communities and property owners as they think
about, you know, whether they wanna get more
involved in Absolutely. Comments.
Yes.
So so the basic idea that that FEMA
is proposing for changing the National Flood Insurance

(09:23):
Program in Oregon,
and maybe I'll just take a step back.
Part of the sort of deal between local
governments and the federal government to be part
of the National Flood Insurance Program
are development standards that the local governments must
implement.
Those development standards currently exist in federal,

(09:45):
federal rules,
that were adopted through nationwide
notice and comment rule making decades ago.
And all the communities across The US that,
participate in the National Flood Insurance Program have
to abide by those rules.
The local governments adopt floodplain development ordinances

(10:06):
that comply with those rules
and issue floodplain permits.
And they in the process of doing that,
if you're if you're trying to add on
to your house in the floodplain or build
a house or build a commercial venue on
the floodplain,
you,
you know, apply for those permits from your
local government and,
you know, those will require you to comply

(10:27):
with FEMA's rules and then, you know, you
you get the permit.
So what FEMA is doing here is sort
of going around that federal notice and comment
rule making process and creating this specific,
set of standards for Oregon that are just
much more
severe than what's required,
nationwide.
And the crux of it is what they're

(10:47):
calling no net loss.
And and what they mean by that is
what they've identified
three functions of the flood plain.
One function is what they call flood storage.
So meaning, if it does flood, where does
the water go during the flood? And in
particular here, where do the fish go during

(11:07):
the flood?
And so no net loss of flood storage
means if you build anything in the flood
plain,
and in fact, if you store any equipment
in the flood plain long term because FEMA
considers that as part of, development in their
definition of development,
you would have to

(11:28):
remove
and it's not even just an equal amount.
The the rules are proposing to be a
greater amount of material
from the flood plain to ensure that there
is no net loss of flood storage. So
that would mean taking down a structure of
a greater size than what you're building or
digging a essentially digging a hole,

(11:49):
that,
takes up, you know, that that gives a
place for the water to go.
So, for example, they in in their, they
they did it what's called an environmental impact
statement on their plan. And and while that's
called an environmental impact statement, it looks at
both economic
and environmental considerations, and and that's what's sort

(12:10):
of open for comment right now. They they
looked at some examples, and they, for example,
they they said that building a 1,500 square
foot structure
with a 20 by 40 foot driveway and
the flood plain would require
removing 6,800
cubic feet
of soil
from the flood plain and then

(12:30):
depositing it outside the flood plain. Mhmm. What
they also found was that probably would require
a second lot.
You probably wouldn't be able to do that
on a single lot. So now anyone who
was wanting to develop in the flood plain
would,
essentially have to figure out how to obtain
the second lot. And then that mitigation, that
hole that's been dug would have to remain

(12:51):
there permanently, and there would have to be
some way of guaranteeing that.
And this all sounds so so silly,
but it it's real.
And and I'm not, and I do wanna
say, you know, we're not suggesting that there
shouldn't be
important,
protections in place, to protect fish habitat, but
there already are very strict flood plain development

(13:13):
standards.
There, you know, you cannot do in the
flood plain everything that you can do outside
of the flood plain. There already are those
standards,
as well as many other efforts that the
communities involved in the National Flood Insurance Program
undertake
to restore and protect fish habitat.
What's being asked here with this no net

(13:34):
loss is almost
so absurd and costly that
it essentially would lead to a prohibition on
development because it's unlikely
that sort of financially and economically speaking, people
would really be able to comply
with these regulations.
And one other example
is I talked about the sort of removal

(13:55):
of material because that's flood storage. So the
other
the other, another function of the flood plain
that they are looking at is water quality.
And the the way that they're measuring when
a wall water quality has been impacted is
if you add impervious
surface. So if you add, you know, pavement
to the floodplain,

(14:16):
any type of, you know, material that does
not allow water through. So you'd have to
remove an equivalent amount if you were to
do that. So if you were to build
a driveway
in the floodplain,
you would then have to,
like, a 20 by 40 foot driveway, they
found you'd have to remove 4,600
square feet
of other

(14:37):
pavement
from somewhere
in the flood plain and deposit it outside
of the flood plain.
With the the the third one is around
vegetation. If you remove
any, if you remove vegetation, that would have
to be replaced. And particularly, they have
requirements in there around trees.

(14:58):
And depending on how close you are to
the water body
and how large the tree is,
the replacement ratios for trees,
range up, you know, up to, like, 12
trees port per one tree that is removed.
That's not in all cases. There's other cases
where it's more likely going to be three,

(15:19):
four, five, six. But,
that,
the those are those no net loss standards,
which, again, really are going even further than
no net loss.
What they found was that to for for
folks to comply with these standards,
the cost of construction for homes and commercial

(15:39):
structures
would likely increase by close to 30%.
And to put that into more,
relatable terms,
the cost of a mortgage on a typical
new home
would increase by more than $7,500
a year to account for the increased cost
of purchasing that home, based on the construction

(16:02):
cost of the home.
We're in the midst of a housing crisis.
And as I mentioned, there are communities, particularly
many coastal communities, where the land they currently
have available for new housing development is in
the flood plain.
And
in fact, FEMA found over the last,
was it fifteen years, I think, somewhere between

(16:23):
1015%
of the housing units in Oregon were built
in the flood plain.
We are we are
woefully behind in our housing production goals. I
think the governor set a goal of 36,000
units per year to catch up to where
we need to be,
given the deficit of housing units we have.
And we're

(16:45):
operating, like,
way less than even half of that right
now. And so this is just another blow,
to the ability to meet, to meet our
state's housing goals along with,
economic development and and other important priorities.
Mhmm.
Listeners, we are talking with Jeremy Rogers,

(17:05):
and he is updating us on a critical
issue about
the flood plain.
Say it again for me, Jeremy.
So these are the new flood plain development
standards that FEMA is requiring
in order for communities to remain in the
National Flood Insurance Program.
And that's a pretty big deal.

(17:27):
As Jeremy pointed out in this show that
the majority of Oregon is in that zone
and we do need new houses in our
area.
And for those who are looking to build
new houses
and or developments,
it's
would you say it would make it nearly
impossible
because of their requirements

(17:48):
or just out of prices?
Well, the thing is is if something's not
if if people can't afford something, it's not
going to be built because
developers only build things that people are likely
to buy because otherwise, they'll be stuck with
a house that they're underwater on. Right?
And so,
yeah, so, you know, I mean, certainly, you

(18:09):
could imagine. Maybe there are some people who
are building their own home
and have lots of mean you know, have
means, and and they're willing to accept a
30% or more increase
in cost.
But for development
that, you know, is going to be,
you know, sold to others, I it it's
it's hard to imagine because most,

(18:32):
most people are already so cost burdened
that they can barely afford something. So if
you're gonna increase the cost of it by
30%,
the number of people who are able to
afford that goes down so much. The incentive
for a developer to be able to build
something,
also really goes down.
And you also as we talked about before,
you know, FEMA is saying you likely would

(18:54):
need a second lot to do the mitigation
on, which means you're having the number
of lots that are available for development. Oh,
wow. Which will also have an impact. Right?
Because you're gonna need everyone's gonna need a
second one to do the mitigation on. That's
right.
Yeah. So this is yeah. This I think,

(19:15):
for for most,
you know, for for most people,
the this is going to
essentially be a de facto
bar on development because the costs just aren't
going to justify,
the the the work that the development that
would be done. Right. And our listeners can
make public comments to FEMA directly at floodplainprotection.org.

(19:39):
Is that correct?
So yeah. So if you go to floodplainprotection.org,
that is the
website for our coalition, which is called Oregonians
for Floodplain Protection. On it, you will find
a link to submit comments.
You'll also find more information, summary information about
the plan,
and some materials that can help you, develop

(20:01):
develop comments.
And,
we even have a link on there. If
you're not sure what to say, we have
a link on there that you can click
that will,
pull up an email and include some comments,
and then you can customize that for,
to, you know, for for your own, particular
things that you wanna say. Is there a

(20:21):
direct phone number, or is it mostly an
online activity? It's, yeah, it's it's online via
email
as well as,
via, like, a a Google form they have.
And we have links to both of those
on the on the website. You can also
mail in comments, but at this point, given
the deadline's Monday, that's probably
and fax. If anyone has a fax, they

(20:43):
do have a fax, number that you can
comment. Yes. We love fax numbers.
The email and the, and the Google form
are probably gonna be the best ways to
do that. And then I should mention,
so FEMA
has
come out with this plan, and I mentioned
they came out with what they call the
draft environmental impact statement, and that's what they're

(21:03):
taking comments on. And as part of that,
they presented three alternatives.
So two of the alternatives, which are alternative
two and alternative three,
are just variations on what I just have
described to you so far in in this
interview,
this no net loss standard. Mhmm. Alternative one
is what they call the no action alternative,

(21:24):
which means
the NFIP would remain in Oregon,
as we know it, subject to the national
standards, not with these Oregon specific
no net loss standards. So we're encouraging folks
who are concerned about this to include in
their comments that alternative one is their preferred
alternative.

(21:46):
Okay.
And
just so listeners have an idea,
how exactly did you get involved with
this organization
exactly?
Yeah. So as
although, actually, it's interesting. I,
even before
I worked at Oregon Realtors, I actually did

(22:06):
my, this has been going on for a
long time. I mentioned that the lawsuit from
the environmental groups was
in 2009.
Yeah.
I actually did my, my law school capstone
paper
at Lewis and Clark Law School on this
topic, interestingly.
But then when I became to work at
Oregon Realtors,

(22:27):
you know, this is so critical for a
real as a real estate issue and for
our members and for, you know, their clients
and communities that want
to have homes that are developed and that
wanna be able to add on to their
homes and that want to have thriving
downtowns and communities. And some of those downtowns
in these coastal areas, we take a look.
They're in the flood plain. Right. And so,

(22:50):
so it's a big deal for our membership.
We have about 18,000 members statewide.
And so,
actually, Oregonians for Floodplain Protection
formed back in 2017,
to,
with several,
as I mentioned, several different business groups and
local jurisdictions that are concerned about this

(23:13):
to file a lawsuit
against FEMA
trying to stop this
that that case was dismissed because,
the judge basically said, well, hey. FEMA hasn't
actually required
the local communities to do anything yet. So
come back once, you know, you're at that
point.

(23:33):
And then I mentioned
FEMA implemented some temporary measures that are,
essentially requiring this no net loss starting at
the end of last year, and then they're
finalizing their final plan. And that's what we're
talking about today.
We brought back that lawsuit,
in January.
So while right now, we're focused on this

(23:54):
comment period
and trying to raise awareness
and get people to comment, there's also a
federal lawsuit going on that includes
Oregonians for floodplain protection,
and that, you know, we at Oregon Realtors
are very involved in,
trying to stop this as well.
And I think it's interesting. The most interesting
thing I learned from you was that Oregon

(24:15):
is the only state this is happening in,
and there's flood plains across The United States.
Yeah. And this this is it's been a
strategy of environmental groups to sue
in a specific state
claiming
that the NFIP
implementation is that, and that state
is harming the species that are located in
that state. There's a couple other states where

(24:37):
they've done this and that are at sort
of various,
points in the process.
But,
that's the sort of strategy
is rather than,
try to address this at a national level
through legislation
or through rule making, just suing
in individual states and trying to force,

(24:59):
essentially, turning the NFIP into a habitat protection
program rather than an insurance,
program and a program to
mitigate risk to people on property.
Right. And affecting our housing and how it
all pertains to each
county
and individual and our mortgage rates and all

(25:19):
these really important things that are that, you
know, anyone looking into purchasing a house or
buying a house, it's gonna affect everybody in
in the big picture.
Yep.
Phenomenal.
Just, you know, legislation after legislation. And and
the best way, like, for listeners, like, you
know, we can't really
what we do is we provide information, and

(25:41):
you guys
out there make your own decisions,
decide to copy this link,
send it to your friends and family or
other people you know in Oregon or in
somewhere in the world.
And you don't have to, but we encourage
everybody to participate as much as possible for
creating the world of quality

(26:01):
with peaceful support that you choose to live
in.
And,
Jeremy, we really thank you for having this
moment to get online get on the radio
show with us. It is an online show,
but get get on the program with us
and just give some proper information
with these links and remind our listeners one
more time where they can get this contact

(26:23):
information.
Yeah. And thank you again. I am really
grateful for the opportunity
to to speak to you and to your
audience.
And for for more information, folks can go
to, floodplainprotection.org.
Floodplainprotection.org.
Perfect. Thank you so kindly for participating, and
you can always call me listeners if you

(26:44):
need any more info.
And thank you, Jeremy. Have a lovely evening.
Thank you.