Local Development Standards to Be Modified to Comply with Endangered Species Act

In a development of great interest to owners of property in or near floodplains, many local jurisdictions in Washington state will soon begin updating their floodplain development regulations to comply with new federal requirements. As discussed in a post on Davis Wright Tremaine’s Real Estate Blog, the Federal Emergency Management Agency (FEMA) began developing its model ordinance after the National Marine Fisheries Service (NMFS) found that FEMA’s administration of the National Flood Insurance Program (NFIP) threatened the habitat of a number of species protected under the Endangered Species Act.

Local jurisdictions will have some discretion in how they will update their development regulations to comply with these federal requirements, but the changes could result in stringent limitations on any development in designated floodplains (please see our prior advisory on pending changes to FEMA’s floodplain designations). For example, the model ordinance proposes a general limitation of new impervious surfaces to 10 percent of the property’s surface area within a protected area, unless mitigation is required for the project. Projects in jurisdictions that fail to meet minimum code requirements may require case-by-case review by NMFS, which would delay processing and increase the chance of permit denials. Further, any local government that fails to comply could jeopardize its continued participation in the NFIP.

A draft of the model ordinance is on FEMA’s Web site, which notes that FEMA will be accepting comments on the proposal through the close of business on April 8, 2010. Affected jurisdictions, as well as landowners and developers of properties located wholly or partially within designated floodplains, may wish to comment on the model ordinance. Once the model ordinance is finalized, local governments’ code updates will also be of interest to anyone owning or seeking to develop land in or near a designated floodplain.