Environmental Solutions E-Newsletter

Periodically, ESA Adolfson sends out "Environmental Solutions," our electronic newsletter. This newsletter is a resource for our clients and colleagues, focusing on current issues and how our industry is affected. If you would like to receive our e-newsletter, please email your name and email address to ESAnews@esassoc.com. Your information will not be sold or used for any other purposes.

Environmental Solutions, Fall 2008

National Flood Insurance and Puget Sound Threatened Species — Responding to the NMFS September 2008 Biological Opinion
The National Marine Fisheries Service (NMFS) recently determined that the current National Flood Insurance Program causes “jeopardy” to some Puget Sound salmon populations, orcas and their habitat.* NMFS issued a Final Biological Opinion and Reasonable and Prudent Alternatives (Biological Opinion) in September that requires the Federal Emergency Management Agency (FEMA) and local Puget Sound jurisdictions to change the way floodplains are managed. FEMA recently notified all affected communities in the Puget Sound area and recommended a moratorium on floodplain development or adoption of severely restrictive development standards.

Responding to the NMFS September 2008 Biological Opinion – What challenges will local governments face?

• In the near term, local jurisdictions will need to consider recommendations from FEMA regarding floodplain management, such as a moratorium on development or other temporary restrictions.
• Local floodplain mapping will need to be consistent with the Biological Opinion. Critical area jurisdictional boundaries for flood hazard areas and channel migration zones may need to be adjusted.
• By 2010-2011,** communities will need to change their floodplain management standards to prohibit development in floodplains and riparian buffers OR demonstrate that the development does not adversely affect listed salmon and their habitat. Local governments will also need to show that any loss of flood storage is avoided or compensated for. In meeting this requirement, local governments may need to revisit critical areas regulations (including fish habitat protection and frequently flooded area management) under the Growth Management Act, and shoreline development standards under the Shoreline Management Act. If a ‘best available science’ analysis was prepared in updating critical areas regulations recently, it may be useful in revisiting regulations.
• Local governments will need to institute low impact development (LID) methods where development is allowed in the floodplain. This is consistent with the Washington Pollution Control Hearings Board recent ruling that the Department of Ecology may require large jurisdictions (Clark, King, Pierce and Snohomish counties, and the cities of Seattle and Tacoma) to use LID techniques under their Phase I Municipal Stormwater permits where feasible.
  
• By September 2009, FEMA will no longer recognize US Army Corps of Engineers certified levees unless it is demonstrated that there is no adverse impact to threatened fish. Local governments will likely face increased costs if they can no longer rely on Corps levee maintenance, and if the construction or enhancement of levees is required.

What are expected consequences for local governments?

FEMA will be modifying its National Flood Insurance Program regulatory standards according to the Biological Opinion. Failing to meet its requirements may mean that flood insurance is unavailable in your local floodplains. The availability of disaster relief funds could also be compromised. FEMA may require local governments that allow status quo floodplain development to provide mitigation for any resulting impacts to habitat. However, complying with the Biological Opinion will likely require an increase in administrative costs related to more intensive reporting and review and a possible increase in property rights litigation.

NOTES:
*Species identified in the Biological Opinion are Puget Sound Chinook salmon (Oncorhynchus tshawytscha), Puget Sound steelhead (O. mykiss), Hood Canal summer-run chum salmon (O. keta), and Southern Resident killer whales (Orcinus orca).
**The Biological Opinion prioritizes certain fish populations to assist FEMA in focusing its implementation efforts on areas most important to the survival and recovery of the listed species. Jurisdictions that influence higher priority habitat have an earlier deadline (see Appendix 3 of the Biological Opinion).

For further information, please contact Jill Moe at (206) 789-9658.

Jill Moe recently joined ESA Adolfson as a Managing Associate. She is a planner and policy analyst with 15 years of professional experience in complex project management, environmental policy analysis, local legislative processes and intergovernmental negotiation.

Corps Announces New Regional Supplements to the Wetland Delineation Manual
The US Army Corps of Engineers has developed regional supplements to the 1987 Wetland Delineation Manual to update the methods and procedures for delineating wetlands. The supplements were developed to address regional wetland characteristics and improve wetland delineation procedures (Corps’ Delineation Manual Website). Two regional supplements are now required for delineations conducted in the Pacific Northwest Region: the Arid West Regional Supplement: Version 2 (effective January 16, 2007, manual updated September 2008) and the Western Mountains, Valleys, and Coast Interim Regional Supplement (effective June 28, 2008). Wetland reports may be submitted to the Corps using the 1987 Wetland Delineation Manual only if field work was conducted prior to these dates.



How have the delineation methods changed?

In general, changes include updated procedures for collecting soil, vegetation, and hydrology data. The new procedures put greater emphasis on hydric soil indicators and provide more guidance on delineations in difficult situations. Hydric soil indicators now require more detailed soil descriptions and knowledge of soil science. New descriptions of problem situations provide more specific guidance for making wetland determinations when soil, vegetation, or hydrologic conditions are disturbed, missing, or otherwise problematic. The methods no longer use the +/- modifiers for a plant’s indicator status.

Will this change the delineation results?

The regional supplements are intended to “bring the Corps Manual up to date with current knowledge and practice in the region(s) and not to change the way wetlands are defined or identified.” Preliminary field tests indicate little change in wetland boundaries using the new methods but testing is ongoing.

How will implementation affect you?

The new delineation procedures have implications for anyone involved in site development (e.g. developers, engineers, consultants, and jurisdictions reviewing wetland delineation reports). The Corps requires new data forms, along with more detailed documentation of site conditions, which could make field studies and reporting efforts more time consuming. Staff who are using the new delineation procedures or reviewing wetland reports may require additional technical training to correctly use the new hydric soil indicators. More detailed and technical expertise may lead to an increase in costs for performing and reviewing wetland delineations.

For further information about the new manual or about wetland delineations in general please contact Laura Brock at (206) 789-9658.

Laura Brock is an Associate Professional Soil Scientist and wetland ecologist with over five years of professional experience in the natural resources, remediation, and due diligence fields.