Ord. 2639 - Amendments to the WDO related to Floodplain Protections (LA25-01) (2) COUNCIL BILL NO. 3287
ORDINANCE NO. 2639
AN ORDINANCE ADOPTING AMENDMENTS TO THE WOODBURN DEVELOPMENT
ORDINANCE RELATED TO FLOODPLAIN PROTECTIONS (LA 25-01)
WHEREAS, the Woodburn Development Ordinance (WDO) establishes the
standards that development is required to meet and that clarity of those standards
is critical as the community continues to grow and prosper; and
WHEREAS, periodic revisions and updates to the Woodburn Development
Ordinance are necessary and expected to comply with statutes and
administrative rules, administer new and revised long-range plans, and address
current issues; and
WHEREAS, Section 4.10.09 of the WDO requires the City Council to initiate the
consideration of any potential legislative amendments to the WDO by resolution;
and
WHEREAS, on April 15, 2025, the Council, in conformance with WDO 4.01 .09A,
initiated Legislative Amendment 25-01 via Resolution, directing staff to review and
revise the WDO regulations for floodplain protections; and
WHEREAS, the Woodburn Planning Commission held a public hearing on May
22, 2025, and unanimously recommended approval of the Option 2 amendment
to the City Council; and
WHEREAS, the Woodburn City Council held a public hearing on July 14, 2025,
and directed staff to return at a future date with a legislative amendment when it
became timely; NOW, THEREFORE,
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. For purposes of this ordinance amendment, all new text is shown
as red underlined (i.e. new and all deleted text is shown as stricken (i.e.
deleted After this ordinance amendment is adopted, the Community
Development Director shall correct the WDO to incorporate all revisions contained
herein.
Section 2. The WDO is amended as specified in Exhibit A which is attached
hereto.
Page - 1 - Council Bill No. 3287
Ordinance No. 2639
Section 3. The legislative action taken by the Ordinance is explained and
justified by the Analyses & Findings and Staff Report documents attached
hereto and incorporated herein as Exhibits B and C, respectively.
Approved as to form:
City A'#or'ney Datel
Approved:
Frank Lonerga ayor
Passed by the Council
Submitted to the Mayor 10 1 "
Approved by the Mayor jQk-ry1 V.I�I-
Filed in the Office of the Recorder
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
Page - 2 - Council Bill No. 3287
Ordinance No. 2639
EXHIBIT A
Woodburn Development Ordinance
WDO
Adopted by Ordinance 2313 on April 9, 2002
Acknowledged December 22, 2006
Amendments:
Ordinance 2423 on July 28, 2007
Ordinance 2446 on Sept. 8, 2008
Ordinance 2465 on Mar. 24, 2010
Ordinance 2473 on Dec. 13, 2010
Ordinance 2480 on Sept. 26, 2011
Ordinance 2492 on Sept. 10, 2012
Ordinance 2509 on Aug. 12, 2013
Ordinance 2510 on Sept. 23, 2013
Ordinance 2520 on July 28, 2014
Ordinance 2526 on Feb. 9, 2015
Ordinance 2538 on Sept. 26, 2016
Ordinance 2541 on Nov. 14, 2016
Ordinance 2544 on Jan. 9, 2017
Ordinance 2561 on July 9, 2018
Ordinance 2562 on Sept. 10, 2018
Ordinance 2573 on June 24, 2019
Ordinance 2579 on Apr. 13, 2020
Ordinance 2602 on May 9, 2022 (LA 21-01)
Ordinance 2603 on June 13, 2022 (LA 21-02)
Ordinance 2621 on Feb. 26, 2024 (LA 21-03)
Ordinance 2629 on July 22, 2024 (LA 24-02)
Otudhig i s (��p�(.( u i UZ'YD (LA 25 0..(..(
Woodburn Development Ordinance Section 2.05 Page X
1.02 Definitions
Plant Unit: A quantity of specified plant materials (See Table 3.06B).
PUE: The acronym refers to public utility easement.
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2.05.01 Riparian Corridor and Wetlands Overlay District
A. Purpose
The Riparian Corridor and Wetlands Overlay District(RCWOD) is intended to conserve,
protect and enhance significant riparian corridors,wetlands, and undeveloped floodplains
in keeping with the goals and policies of the Comprehensive Plan. The RCWOD is further
intended to protect and enhance water quality, prevent property damage during floods and
storms, limit development activity in designated areas, protect native plant species,
maintain and enhance fish and wildlife habitats, and conserve scenic and recreational
values.
B. Boundaries of the RCWOD
1. The RCWOD includes:
a. Riparian corridors extending upland 50 feet from the top of the bank of the
main stem of Senecal Creek and Mill Creek and those reaches of their
tributaries identified as fish-bearing perennial streams on the Woodburn
Wetlands Inventory Map; and
b. Significant wetlands identified on the Woodburn Wetlands Inventory Map.
Where significant wetlands are located fully or partially within a riparian
corridor, the RCWOD shall extend 50 feet from the edge of the wetland; and
c. The 100-year floodplain on properties identified as vacant or partly vacant on
the 2005 Woodburn Buildable Lands Inventory.
2. The approximate boundaries of the RCWOD are shown on the Zoning Map. The
precise boundaries for any particular lot should be verified by the property owner
when making a land use application. Map errors may be corrected as provided in this
Ordinance (Section 1.02.04).
Woodburn Development Ordinance Section 2.05 Page X
C. Permitted Uses and activities
The following uses and activities are allowed, provided they are designed and constructed
to minimize intrusion into the RCWOD uicl tliit t�c uses uicl ictMt cs (Io riot occur oti i
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1. Erosion or flood control measures that have been approved by the Oregon
Department of State Lands, the U.S.Army Corps of engineers, or another state or
federal regulatory agency
2. Maintenance of existing structures, lawns and gardens
3. Passive recreation uses and activities
4. Removal of non-native plant species and replacement with native plant species
5. Public streets and off-street public bicycle/pedestrian facilities that other WDO
sections require.
6. Utilities
D. Water-related and water-dependent uses, including drainage facilities, water and sewer
facilities, flood control projects, drainage pumps, public paths, vehicular means of access
to such uses, trails, picnic areas or interpretive and educational displays and overlooks,
including benches and outdoor furniture.
E. Prohibited Uses and Activities
1. New buildings or structures or impervious surfaces, except for replacement of
existing structures within the original building footprint
2. Expansion of existing buildings or structures or impervious surfaces
3. Expansion of areas of pre-existing non-native landscaping such as lawn, gardens,etc.
4. Dumping, piling, or disposal of refuse, yard debris, or other material
5. Removal of vegetation except for:
a. Uses permitted by this Section
b. Perimeter mowing of a wetland for fire protection purposes;
c. Water-related or water-dependent uses, provided they are designed and
constructed to minimize impact on the existing riparian vegetation;
d. Removal of emergent in-channel vegetation that has the potential to cause
flooding;
e. Hazardous tree removal.
6. Grading, excavation and the placement of fill except for uses permitted by this Section.
F. Variances
The restrictions of this Section may be reduced or removed if they render an existing lot
or parcel unbuildable or work an excessive hardship on the property owner. The reduction
Woodburn Development Ordinance Section 2.05 Page X
or removal shall be decided through the Variance process. pp°...,(�ic [,)r ap oscal aicuivi y p'(afflc
with as or occurs o,aa i �ott, fait is encuauibcrcafl:..or paaaarrtiaffly by U ELVA..SpacciW,
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G. Site Maintenance
1. Any use, sign or structure, and the maintenance thereof, lawfully existing on the date
of adoption of this ordinance, is permitted within the RCWOD. Such use, sign or
structure may continue at a similar level and manner as existed on the date of the
adoption of this ordinance.
2. The maintenance and alteration of pre-existing ornamental landscaping is permitted
as long as no native vegetation is disturbed. Maintenance of lawns, planted
vegetation and landscaping shall be kept to a minimum and not include the spraying
of pesticides or herbicides. Vegetation that is removed shall be replanted with native
species. Maintenance trimming of existing trees shall be kept at a minimum and
under no circumstances can the trimming maintenance be so severe as to compromise
the tree's health, longevity, and resource functions. Vegetation within utility
easements shall be kept in a natural state and replanted when necessary with native
plant species.
H. Site Plan
When a use or activity that requires the issuance of a building permit or approval of a
land use application is proposed on a parcel within, or partially within the RCWOD, the
property owner shall submit a site plan to scale showing the location of the top-of-bank,
100-year flood elevation,jurisdictional delineation of the wetland boundary approved by
the Oregon Department of State Lands (if applicable), riparian setback, existing
vegetation, existing and proposed site improvements, topography, and other relevant
features.
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J. Coordination with the Department of State Lands
The Oregon Department of State Lands shall be notified in writing of all applications to
the City for development activities, including applications for plan and/or zone
amendments, development or building permits, as well as any development proposals by
the City that may affect any wetlands, creeks or waterways.
Woodburn Development Ordinance Section 2.05 Page X
Exhibit B
Analyses & Findings
Conformance with the Woodburn Development Ordinance
4.01 Decision-Making Procedures
4.01.02 Assignment of Decision-Makers:
The following City entity or official shall decide the following types of decisions:
E. Type V Decisions (Legislative): Type V decisions involve legislative actions where the City
Council enacts or amends the City's land use regulations, comprehensive plan, Official
Zoning Map or some component of these documents. Type V decisions may only be initiated
by the City Council. The Planning Commission holds an initial public hearing on the proposal
before making a recommendation to the City Council. The City Council then holds a final
public hearing and renders a decision. Public notice is provided for all public hearings
(Section 4.01.14). The City Council's decision is the City's final decision and is appealable to
LUBA within 21 days after it becomes final.
4.01.09 Initiation of a Legislative Proposal
A.The City Council may initiate the consideration of a legislative decision by resolution.
B. Actions initiated by the Council shall be referred to the Planning Commission for a public
hearing and recommendation to the Council.
C. The City Council shall hold the final public hearing on a proposed legislative decision.
The Planning Commission hearing is scheduled for May 22, 2025, and the City Council hearing is
tentatively scheduled for June 9, 2025, pending a recommendation to the Council by the
Planning Commission.
On April 16, 2024, staff sent a Post-Acknowledgement Plan Amendment (PAPA) notice to the
Department of Land Conversation and Development (DLCD) in compliance with OAR 660-018-
0020.The City notified affected government agencies in conformance with WDO 4.01.14.D. on
May 1, 2025, and published notice of both the Planning Commission and City Council hearings
in the Woodburn Independent newspaper on May 9, 2025.The City notified affected property
owners through a Measure 56 Notice on April 21, 2025.
`The provisions are met.
Conformance w'th ORS 227„186
Notice to property owners of hearing on certain zone change;form of notice; ...
(2) All legislative acts relating to comprehensive plans, land use planning or zoning adopted by
a city shall be by ordinance.
Pending a decision from the City Council following its public hearing, the Council would be able
to direct staff to return with an ordinance for adoption at a subsequent Council meeting.
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 1 of 5
17
Exhibit B
(3) ... at least 20 days but not more than 40 days before the date of the first hearing on an
ordinance that proposes to amend an existing comprehensive plan or any element thereof, or
to adopt a new comprehensive plan, a city shall cause a written individual notice of a land use
change to be mailed to each owner whose property would have to be rezoned in order to
comply with the amended or new comprehensive plan if the ordinance becomes effective.
(4) At least 20 days but not more than 40 days before the date of the first hearing on an
ordinance that proposes to rezone property, a city shall cause a written individual notice of a
land use change to be mailed to the owner of each lot or parcel of property that the
ordinance proposes to rezone. ...
(5) An additional individual notice of land use change required by subsection (3) or (4) of this
section shall be approved by the city and shall describe in detail how the proposed ordinance
would affect the use of the property.The notice shall: . . .
(6) At least 30 days prior to the adoption or amendment of a comprehensive plan or land use
regulation by a city pursuant to a requirement of periodic review of the comprehensive plan
under ORS 197.628, 197.633 and 197.636,the city shall cause a written individual notice of
the land use change to be mailed to the owner of each lot or parcel that will be rezoned as a
result of the adoption or enactment. ...
(7) Notice provided under this section may be included with the tax statement required under
ORS 311.250.
(8) Notwithstanding subsection (7) of this section, a city may provide notice of a hearing at
any time provided notice is mailed by first class mail or bulk mail to all persons for whom
notice is required under subsections (3) and (4) of this section.
(9) For purposes of this section, property is rezoned when the city...
(10) The provisions of this section do not apply to legislative acts of the governing body of the
city resulting from action of the Legislative Assembly or the Land Conservation and
Development Commission for which notice is provided under ORS 197.047 or resulting from
an order of a court of competent jurisdiction.
This legislative amendment does not propose any changes to the Woodburn Comprehensive
Plan nor any rezoning of property.
Because the City is not changing the base zoning classification of property, in other words
neither rezoning nor making a zone change, Sections (3), (4) and (5) above are not applicable.
Because the proposed amendment is not pursuant to a requirement of periodic review, Sections
(6) & (7) & (8) are not applicable.
The proposed legislative amendment does not result from actions of the Legislative Assembly or
the Land Conservation and Development Commission (LCDC). ORS 197.047 is not applicable. As
a result, the City of Woodburn is not required for LA 24-02 to do a "Measure 56" notice, the
phrase referring to Ballot Measure 56 (1998) that the legislature codified in ORS 227.186, which
the legislature later revised via Senate Bill 516 (2003). However, the proposed legislative
amendment does result from actions of the Federal Emergency Management Agency. As a
result, the City has elected to provide a Measure 56 Notice, which was mailed on April 21, 2025.
V The provisions are met.
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 2 of 5
18
Exhibit B
I. INTRODUCTION
In 2009, the Portland Audubon Society sued FEMA regarding the Endangered Species Act, which
requires federal agencies to ensure that any action they authorize, fund, or conduct does not
jeopardize the continued existence of any endangered or threatened species or result in the
destruction of or harm to their habitat.
A settlement was reached resulting in FEMA consulting with the National Marine Fishery
Service, which in 2016 issued a "biological opinion " (BiOp) that the current implementation is
likely to jeopardize the continued existence of 16 listed threatened or endangered fish species.
FEMA was then tasked to modify the NFIP implementation so that development actions in
floodplains would result in 'no net loss' to key habitats. "No net loss" means that mitigation of
all negative impacts is provided on site, within the same reach, or in the same watershed.
In 2024, FEMA issued a requirement to jurisdictions within the state of Oregon to implement
the new Model Code and/or to meet requirements set forth in the study including, but not
limited to, reporting and additional permit requirements.
Per the Woodburn Comprehensive Plan, "The City has already adopted a Flood Plain
Management Ordinance, which meets the requirements of the Federal Flood Insurance
Program. This ordinance should be monitored for its effectiveness and kept up to date".
In 2025, the City of Woodburn Planning Department analyzed the Woodburn Development
Ordinance and found that it no longer meets or exceeds requirements set forth by FEMA or the
Federal Flood Insurance Management Program (now the National Flood Insurance Management
Program, NFIP). In April 2025, draft proposals were developed under two approaches, a "Model
Code" and "Permit-by-Permit" approach, both as supplements to the Woodburn Development
Ordinance and Flood Plain Management Ordinance.
II. "Model Code" Ordinance Adaptation
a. Model Ordinance
This Ordinance is based on the 2024 FEMA "PICM Oregon NFIP-ESA Model
Ordinance" and has been adapted to fit the needs and language of the City of
Woodburn.
It is a standalone Ordinance, designed to meet both the standards set forth by
FEMA and the standards set forth by state requirements of"Clear and Objective"
language, reporting, and statements.
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 3 of 5
19
Exhibit B
The proposed Ordinance establishes guidelines for new reporting, analysis, and
permitting requirements.
b. WDO Amendments
Minor Amendments to the Woodburn Development Ordinance (WDO) would be
necessary to codify requirements to meet or exceed the standards set forth in
the proposed standalone ordinance.
The proposed amendments include the addition of a section titled "2.01.07
Federal Emergency Management Agency Overlays" that lays out a requirement
to follow all standards and rules in the proposed Ordinance if a property is
encumbered, partially or completely, by a FEMA-Designated flood plain.
In addition, a minor amendment is proposed to Section 2.05.05, referencing the
above change.
c. Staff Recommendation
It is Staff's opinion that this ordinance would necessitate a requirement for
separate permit review fees, and that, prior to the adoption of the ordinance, a
consultant would be needed to complete thorough review of the various
requirements, permits, and documentation necessary for the successful
implementation of the ordinance.
It is Staff's recommendation to the Commission that the changes defined as
"Model Code" not be approved, in large part due to the cost of implementing
and operating the changes described, and in part due to the additional burden
placed on applicants and staff.
III. "Permit-By-Permit" Approach WDO Amendment(s)
a. WDO Amendments
Minor amendments to the Woodburn Development Ordinance (WDO) are
proposed, making an addition to Section 2.01.05 "Riparian Corridor and Wetland
Overlay District" to implement a requirement for applicants to include a Flood
Habitat Assessment Report, conducted by a qualified professional, with any
RCWOD application. The amendment will also codify a requirement that
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 4 of 5
20
Exhibit B
recommendations of this report be included as conditions of approval for the
permit.
b. Staff Recommendation
It is Staff's opinion that this proposal will bring into FEMA compliance the
Woodburn Development Ordinance while placing minimal additional burden on
both staff and applicants. Therefore, it is Staff's recommendation to the
Commission that the changes defined as "Permit-by-Permit" be approved.
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 5 of 5
21
Exhibit C
WTOODBURN
Inc orpornreA 1889
July 14, 2025
(Prepared July 7, 2025)
To: Honorable Mayor and City Council through City Administrator
From: Chris Kerr, Community Development Director -k"
Subject: Public Hearing for a Legislative Amendment to the Woodburn
Development Ordinance related to interim floodplain requirements
directed from FEMA (LA 25-01)
RECOMMENDATION:
After conducting the public hearing, staff recommends that the Council close the
record and continue the item until such time as the active litigation (described
below) is resolved upon which time staff will bring the item back to the Council
for final consideration if necessary.
Update on litigation status as of Jules
On January 6, 2025, Oregonians for Floodplain Protection (a 501 c4
organization of local governments) and the National Association of
Home Builders of the United States commenced a legal action in
the D.C. District Court challenging the Oregon Biological Opinion
and Pre-Implementation Compliance Measures (PICMs) that FEMA
has ordered Oregon cities and counties to implement as a
condition of continued participation in the National Flood Insurance
Program (NFIP). The Plaintiffs also filed a motion for a preliminary
injunction to halt the mandated implementation of the PICM
options. No ruling has yet been made on that motion. However,
following the filing of the preliminary injunction, the case was
transferred back to the Oregon District Court and the parties to the
lawsuit have since filed a joint motion to stay the proceedings until
July 29, 2025, in order to "discuss options for resolving the matter
without further litigation." See attached Motion for Stay.
Because the outcome of the litigating parties' discussion and the possible
remedies resulting from the litigation may affect whether and to what
extent the City is mandated to adopt PICM measures, staff recommends
Agenda Item Review: City Administrator_x City Attorney x_
Exhibit C
that the Council continue its deliberation and final decision on this matter
pending an update and future direction from City staff.
BACKGROUND
On April 15, 2025; the City Council passed Resolution No. 2249 initiating legislative
amendments necessary to maintain conformance with FEMA's floodplain
requirements. The modifications are necessary to address direction from FEMA
that Oregon cities must adopt new "Pre-implementation Compliance Measures"
(PICM) for all development in floodplains. FEMA was required to take these steps
as a result of a lawsuit it settled in 2010 which was brought by environmental
groups from Oregon. It was determined that FEMA's regulations failed to address
the listed species under the Endangered Species Act.
DISCUSSION
FEMA has directed NFIP communities to select (and adopt) one of the following
three measures:
1 ) Incorporate the PICM directly into their local floodplain ordinances
(based on a complex model ordinance developed by FEMA). This
option would require the city to hire a Habitat Specialist to review all
applications for compliance. (model code approach)
2) Require permit applicants to develop a Floodplain Habitat Assessment
documenting that their proposed development in the Special Flood
Hazard Area will achieve "no net loss." All conditions and Findings of
this report would be included as a permit condition of approval.
(permit by permit approach)
3) Prohibit all new development in the floodplain and be removed from
the NFIP program.
Detailed discussions of each of these as well as the background behind FEMA's
actions are found in the Planning Commission Staff Report and its Attachments.
On May 22nd, the Planning Commission held a public hearing on this item and
unanimously recommended that the Council adopt Option #2 shown above. At
the hearing, public testimony was received from 12 people. The vast majority of
the testimony related to the negative impacts these provisions would have on
property owners. Concerns were raised regarding loss of property values, inability
to develop private property, inaccurate FEMA maps and the complexity of the
regulations.
Exhibit C
During questions and deliberations, both Staff and the Planning Commission
generally concurred with the comments raised by the public, but determined that
compliance with the FEMA's regulation was critical for the community.
Recommending that the Council adopt Option #2 ("permit/permit") was
considered the best of three bad choices.
FINANCIAL IMPACT:
Adoption of Options 1 and 2 will increase development costs for applicants due
to the new habitat assessment that must be completed and reviewed. Option 1
will be significantly more costly than Option 2 due to the fact the application fees
will be higher and the process will be longer.
Importantly, Option 3 (not implementing anything and being removed from the
NFIP program) would be extremely costly not just to individual property owners
that would be forced to go on the private market for insurance, but the city as a
whole. Over the long term, the city would likely lose out on FEMA and State
supported grants and be at risk of not receiving FEMA re-imbursements for
property damage should a severe flood event occur.
Attachments:
• Planning Commission Staff Report
• Attachment 101 : Analyses & Findings
• Attachment 102: WDO Amendments
Exhibit C
.QODBU RIN
; � A '
I ncorpo, raaaed 1889
Staff Report
Project Name: Legislative Amendment (LA) 25-01: FEMA NFIP
File Number: LA 25-01
Initial Hearing Date: May 22, 2025
Date of Report: May 15, 2025
Staff Reviewer: Chris Kerr, Community Development Director
Staff Recommendation: Approval of"Permit-bV-Permit"Approach (Option 2)
Issue before the Planning Commission
Legislative Amendment (LA) 25-01 to consider the options available to the City to maintain NFIP
(National Flood Insurance Program) eligibility and make a recommendation to City Council on
which option to pursue. Option 1 is hereby known as the "Model Code" and consists of both a
new ordinance based on model code provided by the Federal Emergency Management Agency
and an ordinance to amend the Woodburn Development Ordinance. Option 2 would amend the
Woodburn Development Ordinance to introduce requirements for applicants to meet new
standards.
Executive Summary & Background
The Federal Emergency Management Agency (FEMA) manages disaster recovery and resources.
The National Flood Insurance Program (NFIP) was created by the U.S. Congress to minimize the
costs of disaster relief and reduce the loss of life and property caused by flooding. NFIP-
participating communities (which includes Woodburn) are then required to maintain state and
local floodplain management regulations that reduce future flood damage. The regulations
include construction methods and details that must be followed when constructing within flood
Exhibit C
management areas, and they control the alteration of the flood plain so as not to increase flood
damage risk. As a result of the City participating in the NFIP, property owners within the City
limits are eligible to purchase federally backed flood insurance policies.
In 2009, several environmental groups in Oregon filed a lawsuit against FEMA for failing to
adequately consider the effects of the NFIP on Endangered Species Act (ESA) listed species and
their habitat in Oregon. FEMA settled the lawsuit in 2010 and agreed to consult regarding the
effects of the NFIP in Oregon on threatened and endangered species and designated critical
habitat.
In April 2016, the National Marine Fisheries Service issued the Oregon NFIP Biological Opinion
(BiOp). The BiOp concluded FEMA's implementation of the NFIP in Oregon jeopardizes the
continued existence of threatened and endangered species and adversely modifies designated
critical habitat. Subsequently, FEMA has been evaluating proposed changes to the NFIP through
an environmental impact statement (EIS), in compliance with the National Environmental Policy
Act (NEPA).
The Final Implementation Plan for the proposed changes is anticipated by 2026 following the
Record of Decision in the EIS process, then FEMA will fully implement the plan in 2027. Until
then, communities have been directed by FEMA to begin taking action to protect habitat and
achieve what is called "no net loss."
Since last fall, FEMA has offered certain workshops and assistance for local communities to
learn more in order to implement interim measures, called Pre-Implementation Compliance
Measures (PICMs).
NFIP Communities have been directed to select one of the following three PICMs and begin
reporting in July 2025:
1) Prohibit all new development in the floodplain.
2) Incorporate the ESA into local floodplain ordinances (based on a model
ordinance developed by FEMA). (Presented as Option 1)
3) Require permit applicants to develop a Floodplain Habitat Assessment
documenting that their proposed development in the Special Flood Hazard Area will
achieve "no net loss." (Presented as Option 2)
Communities must report to FEMA on their implementation of interim measures. Based on
FEMA's timeframe for election of the PICMs (Dec 1, 2024), the City has been "defaulted" to the
permit-by-permit option described above, but it may still choose to adopt the FEMA model
ordinance.
LA 25-01
Staff Report
Page 2 of 5
Exhibit C
While participation in the NFIP is voluntary, nonparticipating flood-prone communities and
communities who have withdrawn or are suspended from the program face the following
sanctions:
1. No resident will be able to purchase a flood insurance policy.
2. Existing flood insurance policies will not be renewed.
3. No Federal grants or loans for development may be made in identified flood hazard
areas under programs administered by Federal agencies such as HUD, EPA, and SBA;
4. No Federal disaster assistance may be provided to repair insurable buildings located
in identified flood hazard areas for damage caused by a flood.
5. No Federal mortgage insurance or loan guarantees may be provided in identified
flood hazard areas. This includes policies written by FHA, VA, and others.
6. Federally insured or regulated lending institutions such as banks and credit unions
must notify applicants seeking loans for insurable buildings in flood hazard areas
that there is a flood hazard and that the property is not eligible for Federal disaster
relief.
Rather than risk suspension or removal from the NFIP, City staff strongly recommend that the
City should initiate an ordinance adoption process to meet the implementation deadlines
currently set by FEMA (July 31, 2025).
Purpose
The City's current ordinances do not meet or exceed the standards set forth by the new
requirements from FEMA. These code amendments are written to allow the City to maintain
NFIP (National Flood Insurance Program) eligibility and to enforce new federal-level regulations
on the State of Oregon.
As part of LA 25-01, amendments being considered can be summarized as:
EITHER
Option 1 ("Model Code"):
• Addition of a new Ordinance based on the FEMA/DLCD Model Code to apply principles
of"no net loss" and maintain compliance with the National Flood Insurance Program
(NFIP).
• The ordinance would add requirements to conduct wetland delineation, impact
study(s), or additional environmental reports as necessary for project site encumbered
by FEMA-designated floodways and City-designated Riparian Corridor and Wetlands
Overlay District (RCWOD)
LA 25-01
Staff Report
Page 3 of 5
Exhibit C
• Amendments to the Woodburn Development Ordinance (WDO) to specify the need to
reference to, and comply with, the new ordinance.
• Amendments to the Woodburn Development Ordinance (WDO) references to Variance
to allow for and describe the variance procedures needed for the floodplain
management process.
• Amendments to the Flood Plain Management Ordinance to reflect the additions of the
"No Net Loss" principles.
OR
Option 2 ("Permit-by-Permit"):
• Amendments to the Woodburn Development Ordinance (WDO) to specify additional
requirement for applicants to obtain a "Flood Habitat Assessment Report", findings of
which to be included as a permit condition of approval.
WDO Amendments
Proposed amendments apply only to a fraction of the hundreds of pages of the WDO. Proposed
amendments are included in a 6#iI(@thFG ffI -and-underline format (Attachments 102 & 104). If
the Commission notices any remaining scrivener's errors regarding grammar, spelling, and/or
typos, please draw staff attention to them.
As a legislative amendment, commissioners may contact staff directly with questions any time
before the hearing at (503) 980-2431 or chris.kerr@ci.woodburn.or.us.
Recommendation
Approval: Staff recommends that the Planning Commission consider the staff report and
attachments and recommend City Council adoption of the WDO amendment regarding a
permit-by-permit approach ("Option 2", Attachment 104) based on the Analyses and Findings
(Attachment 101) in the staff report.
Actions
Recommend approval of the WDO amendment, or the Planning Commission may instead
recommend:
• Approval with revisions; or
• That staff revise and return to a later hearing for further deliberation by the Planning
Commission.
LA 25-01
Staff Report
Page 4 of 5
Exhibit C
• Approval of the Model Code/Ordinance Approach (Option 1)
If the Planning Commission were to act upon the recommendation, staff would proceed to a
City Council public hearing, which has not yet been scheduled.
Attachment List
101. Analyses & Findings
102. OPTION 1: WDO Amendments "Model Code"
103. OPTION 1: Ordinance "Model Code"
104. OPTION 2: WDO Amendments "Permit-by-Permit"
105. Council Agenda Item
LA 25-01
Staff Report
Page 5 of 5
Exhibit C
Analyses & Findings
Conformance with the Woodburn Development Ordinance
4.01 Decision-Making Procedures
4.01.02 Assignment of Decision-Makers:
The following City entity or official shall decide the following types of decisions:
E. Type V Decisions (Legislative): Type V decisions involve legislative actions where the City
Council enacts or amends the City's land use regulations, comprehensive plan, Official
Zoning Map or some component of these documents. Type V decisions may only be initiated
by the City Council. The Planning Commission holds an initial public hearing on the proposal
before making a recommendation to the City Council. The City Council then holds a final
public hearing and renders a decision. Public notice is provided for all public hearings
(Section 4.01.14). The City Council's decision is the City's final decision and is appealable to
LUBA within 21 days after it becomes final.
4.01.09 Initiation of a Legislative Proposal
A.The City Council may initiate the consideration of a legislative decision by resolution.
B. Actions initiated by the Council shall be referred to the Planning Commission for a public
hearing and recommendation to the Council.
C. The City Council shall hold the final public hearing on a proposed legislative decision.
The Planning Commission hearing is scheduled for May 22, 2025, and the City Council hearing is
tentatively scheduled for June 9, 2025, pending a recommendation to the Council by the
Planning Commission.
On April 16, 2024, staff sent a Post-Acknowledgement Plan Amendment (PAPA) notice to the
Department of Land Conversation and Development (DLCD) in compliance with OAR 660-018-
0020.The City notified affected government agencies in conformance with WDO 4.01.14.D. on
May 1, 2025, and published notice of both the Planning Commission and City Council hearings
in the Woodburn Independent newspaper on May 9, 2025.The City notified affected property
owners through a Measure 56 Notice on April 21, 2025.
`The provisions are met.
Conformance w'th ORS 227„186
Notice to property owners of hearing on certain zone change;form of notice; ...
(2) All legislative acts relating to comprehensive plans, land use planning or zoning adopted by
a city shall be by ordinance.
Pending a decision from the City Council following its public hearing, the Council would be able
to direct staff to return with an ordinance for adoption at a subsequent Council meeting.
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 1 of 5
Exhibit C
(3) ... at least 20 days but not more than 40 days before the date of the first hearing on an
ordinance that proposes to amend an existing comprehensive plan or any element thereof, or
to adopt a new comprehensive plan, a city shall cause a written individual notice of a land use
change to be mailed to each owner whose property would have to be rezoned in order to
comply with the amended or new comprehensive plan if the ordinance becomes effective.
(4) At least 20 days but not more than 40 days before the date of the first hearing on an
ordinance that proposes to rezone property, a city shall cause a written individual notice of a
land use change to be mailed to the owner of each lot or parcel of property that the
ordinance proposes to rezone. ...
(5) An additional individual notice of land use change required by subsection (3) or (4) of this
section shall be approved by the city and shall describe in detail how the proposed ordinance
would affect the use of the property.The notice shall: . . .
(6) At least 30 days prior to the adoption or amendment of a comprehensive plan or land use
regulation by a city pursuant to a requirement of periodic review of the comprehensive plan
under ORS 197.628, 197.633 and 197.636,the city shall cause a written individual notice of
the land use change to be mailed to the owner of each lot or parcel that will be rezoned as a
result of the adoption or enactment. ...
(7) Notice provided under this section may be included with the tax statement required under
ORS 311.250.
(8) Notwithstanding subsection (7) of this section, a city may provide notice of a hearing at
any time provided notice is mailed by first class mail or bulk mail to all persons for whom
notice is required under subsections (3) and (4) of this section.
(9) For purposes of this section, property is rezoned when the city...
(10) The provisions of this section do not apply to legislative acts of the governing body of the
city resulting from action of the Legislative Assembly or the Land Conservation and
Development Commission for which notice is provided under ORS 197.047 or resulting from
an order of a court of competent jurisdiction.
This legislative amendment does not propose any changes to the Woodburn Comprehensive
Plan nor any rezoning of property.
Because the City is not changing the base zoning classification of property, in other words
neither rezoning nor making a zone change, Sections (3), (4) and (5) above are not applicable.
Because the proposed amendment is not pursuant to a requirement of periodic review, Sections
(6) & (7) & (8) are not applicable.
The proposed legislative amendment does not result from actions of the Legislative Assembly or
the Land Conservation and Development Commission (LCDC). ORS 197.047 is not applicable. As
a result, the City of Woodburn is not required for LA 24-02 to do a "Measure 56" notice, the
phrase referring to Ballot Measure 56 (1998) that the legislature codified in ORS 227.186, which
the legislature later revised via Senate Bill 516 (2003). However, the proposed legislative
amendment does result from actions of the Federal Emergency Management Agency. As a
result, the City has elected to provide a Measure 56 Notice, which was mailed on April 21, 2025.
V The provisions are met.
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 2 of 5
Exhibit C
I. INTRODUCTION
In 2009, the Portland Audubon Society sued FEMA regarding the Endangered Species Act, which
requires federal agencies to ensure that any action they authorize, fund, or conduct does not
jeopardize the continued existence of any endangered or threatened species or result in the
destruction of or harm to their habitat.
A settlement was reached resulting in FEMA consulting with the National Marine Fishery
Service, which in 2016 issued a "biological opinion " (BiOp) that the current implementation is
likely to jeopardize the continued existence of 16 listed threatened or endangered fish species.
FEMA was then tasked to modify the NFIP implementation so that development actions in
floodplains would result in 'no net loss' to key habitats. "No net loss" means that mitigation of
all negative impacts is provided on site, within the same reach, or in the same watershed.
In 2024, FEMA issued a requirement to jurisdictions within the state of Oregon to implement
the new Model Code and/or to meet requirements set forth in the study including, but not
limited to, reporting and additional permit requirements.
Per the Woodburn Comprehensive Plan, "The City has already adopted a Flood Plain
Management Ordinance, which meets the requirements of the Federal Flood Insurance
Program. This ordinance should be monitored for its effectiveness and kept up to date".
In 2025, the City of Woodburn Planning Department analyzed the Woodburn Development
Ordinance and found that it no longer meets or exceeds requirements set forth by FEMA or the
Federal Flood Insurance Management Program (now the National Flood Insurance Management
Program, NFIP). In April 2025, draft proposals were developed under two approaches, a "Model
Code" and "Permit-by-Permit" approach, both as supplements to the Woodburn Development
Ordinance and Flood Plain Management Ordinance.
II. "Model Code" Ordinance Adaptation
a. Model Ordinance
This Ordinance is based on the 2024 FEMA "PICM Oregon NFIP-ESA Model
Ordinance" and has been adapted to fit the needs and language of the City of
Woodburn.
It is a standalone Ordinance, designed to meet both the standards set forth by
FEMA and the standards set forth by state requirements of"Clear and Objective"
language, reporting, and statements.
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 3 of 5
Exhibit C
The proposed Ordinance establishes guidelines for new reporting, analysis, and
permitting requirements.
b. WDO Amendments
Minor Amendments to the Woodburn Development Ordinance (WDO) would be
necessary to codify requirements to meet or exceed the standards set forth in
the proposed standalone ordinance.
The proposed amendments include the addition of a section titled "2.01.07
Federal Emergency Management Agency Overlays" that lays out a requirement
to follow all standards and rules in the proposed Ordinance if a property is
encumbered, partially or completely, by a FEMA-Designated flood plain.
In addition, a minor amendment is proposed to Section 2.05.05, referencing the
above change.
c. Staff Recommendation
It is Staff's opinion that this ordinance would necessitate a requirement for
separate permit review fees, and that, prior to the adoption of the ordinance, a
consultant would be needed to complete thorough review of the various
requirements, permits, and documentation necessary for the successful
implementation of the ordinance.
It is Staff's recommendation to the Commission that the changes defined as
"Model Code" not be approved, in large part due to the cost of implementing
and operating the changes described, and in part due to the additional burden
placed on applicants and staff.
III. "Permit-By-Permit" Approach WDO Amendment(s)
a. WDO Amendments
Minor amendments to the Woodburn Development Ordinance (WDO) are
proposed, making an addition to Section 2.01.05 "Riparian Corridor and Wetland
Overlay District" to implement a requirement for applicants to include a Flood
Habitat Assessment Report, conducted by a qualified professional, with any
RCWOD application. The amendment will also codify a requirement that
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 4 of 5
Exhibit C
recommendations of this report be included as conditions of approval for the
permit.
b. Staff Recommendation
It is Staff's opinion that this proposal will bring into FEMA compliance the
Woodburn Development Ordinance while placing minimal additional burden on
both staff and applicants. Therefore, it is Staff's recommendation to the
Commission that the changes defined as "Permit-by-Permit" be approved.
LA 24-02 Planning Commission Staff Report Attachment 101: Analyses& Findings Page 5 of 5
Exhibit C
OPTION 1 PROPOSED ORDINANCE "Model Code, WDO Changes" EXHIBIT 102
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. For purposes of this ordinance amendment, all new text is shown as up..In..,deprvlliined
.. p„rv„ „ (i.e. new text) and all deleted text is shown as stricken (i.e. deleted text). After this
ordinance amendment is adopted, the Community Development Director shall update the WDO
and the Comprehensive Plan to incorporate all revisions contained herein.
Section 2.The WDO is amended as specified in Exhibit A that is attached hereto.
Woodburn Development Ordinance Chapter 2.05 Page 1
Exhibit C
Woodburn Development Ordinance
WDO
Adopted by Ordinance 2313 on April 9,2002
Acknowledged December 22, 2006
Amendments:
Ordinance 2423 on July 28, 2007
Ordinance 2446 on Sept. 8, 2008
Ordinance 2465 on Mar. 24, 2010
Ordinance 2473 on Dec. 13, 2010
Ordinance 2480 on Sept. 26, 2011
Ordinance 2492 on Sept. 10, 2012
Ordinance 2509 on Aug. 12, 2013
Ordinance 2510 on Sept. 23, 2013
Ordinance 2520 on July 28, 2014
Ordinance 2526 on Feb. 9,2015
Ordinance 2538 on Sept. 26, 2016
Ordinance 2541 on Nov. 14, 2016
Ordinance 2544 on Jan. 9,2017
Ordinance 2561 on July 9, 2018
Ordinance 2562 on Sept. 10, 2018
Ordinance 2573 on June 24, 2019
Ordinance 2579 on Apr. 13, 2020
Ordinance 2602 on May 9,2022 (LA 21-01)
Ordinance 2603 on June 13, 2022 (LA 21-02)
Ordinance 2621 on Feb. 26, 2024 (LA 21-03)
Ordinance 2629 on July 22, 2024 (LA 24-02)
_Otujhi�uuicc 2752 cuuu M�iy 22, 2025 (LA 2 01
Woodburn Development Ordinance Chapter 2.05 Page 2
Exhibit C
2.01 Overlay Districts
There are six land use Overlay Districts within the City. Overlay districts include development
standards for historic preservation, natural resource conservation, traffic generation, etc, which
are in addition to the land use regulations of the underlying zones.
2.01.01 Gateway Commercial General Overlay District
2.01.02 Interchange Management Area Overlay District
2.01.03 Neighborhood Conservation Overlay District
2.01.04 Nodal Overlay Districts
2.01.05 Riparian Corridor and Wetlands Overlay District
2.01.06 Southwest Industrial Reserve
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2.05.01 Gateway Commercial General Overlay District
A. Purpose
The Gateway Commercial General Overlay District is the Commercial General (CG) area
immediately adjacent to the downtown. Special use provisions within the Gateway Overlay
District allow multi-family residential development, either as a stand-alone use, or as part of
a vertical mixed-use project. Specific uses are prohibited, while other uses are limited,
allowed only within enclosed buildings or behind masonry walls.Additionally, specific
height limitations apply within this Overlay District. The district allows multi-family
residential to provide more consumers living within an area of commercial development and
to provide 24-hour a day life in the eastern entrance to the downtown.
B. Applicable Provisions
The Gateway Commercial General Overlay District includes special-use provisions limiting
outside storage and land-intensive uses, while allowing multi-family residential
development, either as a stand-alone use or as part of a vertical mixed use project. The land
use and development standards are contained in this ordinance. The Overlay District is noted
on the Official Zoning Map.
Woodburn Development Ordinance Chapter 2.05 Page 3
Exhibit C
Woodburn Development Ordinance Section 2.05 Page 4
Exhibit C
2.05.02 Riparian Corridor and Wetlands Overlay District
A. Purpose
The Riparian Corridor and Wetlands Overlay District(RCWOD) is intended to conserve,
protect and enhance significant riparian corridors, wetlands, and undeveloped floodplains in
keeping with the goals and policies of the Comprehensive Plan. The RCWOD is further
intended to protect and enhance water quality,prevent property damage during floods and
storms, limit development activity in designated areas,protect native plant species, maintain
and enhance fish and wildlife habitats, and conserve scenic and recreational values.
B. Boundaries of the RCWOD
1. The RCWOD includes:
a. Riparian corridors extending upland 50 feet from the top of the bank of the main
stem of Senecal Creek and Mill Creek and those reaches of their tributaries
identified as fish-bearing perennial streams on the Woodburn Wetlands Inventory
Map; and
b. Significant wetlands identified on the Woodburn Wetlands Inventory Map. Where
significant wetlands are located fully or partially within a riparian corridor, the
RCWOD shall extend 50 feet from the edge of the wetland; and
c. The 100-year floodplain on properties identified as vacant or partly vacant on the
2005 Woodburn Buildable Lands Inventory.
2. The approximate boundaries of the RCWOD are shown on the Zoning Map. The
precise boundaries for any particular lot should be verified by the property owner when
making a land use application. Map errors may be corrected as provided in this
Ordinance (Section 1.02.04).
C. Permitted Uses and activities
The following uses and activities are allowed,provided they are designed and constructed to
minimize intrusion into the RCWOD:
1. Erosion or flood control measures that have been approved by the Oregon Department
of State Lands, the U.S. Army Corps of engineers, or another state or federal regulatory
agency
2. Maintenance of existing structures, lawns and gardens
3. Passive recreation uses and activities
4. Removal of non-native plant species and replacement with native plant species
5. Public streets and off-street public bicycle/pedestrian facilities that other WDO sections
require.
6. Utilities
7. Water-related and water-dependent uses, including drainage facilities, water and sewer
facilities, flood control projects, drainage pumps,public paths, vehicular means of
access to such uses, trails,picnic areas or interpretive and educational displays and
overlooks, including benches and outdoor furniture
Woodburn Development Ordinance Section 2.05 Page 5
Exhibit C
D. Prohibited Uses and Activities
1. New buildings or structures or impervious surfaces, except for replacement of existing
structures within the original building footprint
2. Expansion of existing buildings or structures or impervious surfaces
3. Expansion of areas of pre-existing non-native landscaping such as lawn, gardens,etc.
4. Dumping,piling, or disposal of refuse,yard debris, or other material
5. Removal of vegetation except for:
a. Uses permitted by this Section
b. Perimeter mowing of a wetland for fire protection purposes;
c. Water-related or water-dependent uses,provided they are designed and constructed
to minimize impact on the existing riparian vegetation;
d. Removal of emergent in-channel vegetation that has the potential to cause flooding;
e. Hazardous tree removal.
6. Grading, excavation and the placement of fill except for uses permitted by this Section.
E. Variances
The restrictions of this Section may be reduced or removed if they render an existing lot or
parcel unbuildable or work an excessive hardship on the property owner. The reduction or
removal shall be decided through the Variance process.
F. Site Maintenance
1. Any use, sign or structure, and the maintenance thereof, lawfully existing on the date of
adoption of this ordinance, is permitted within the RCWOD. Such use, sign or structure
may continue at a similar level and manner as existed on the date of the adoption of this
ordinance.
2. The maintenance and alteration of pre-existing ornamental landscaping is permitted as
long as no native vegetation is disturbed. Maintenance of lawns,planted vegetation and
landscaping shall be kept to a minimum and not include the spraying of pesticides or
herbicides. Vegetation that is removed shall be replanted with native species.
Maintenance trimming of existing trees shall be kept at a minimum and under no
circumstances can the trimming maintenance be so severe as to compromise the tree's
health, longevity, and resource functions. Vegetation within utility easements shall be
kept in a natural state and replanted when necessary with native plant species.
G. Site Plan
When a use or activity that requires the issuance of a building permit or approval of a land
use application is proposed on a parcel within, or partially within the RCWOD, the property
owner shall submit a site plan to scale showing the location of the top-of-bank, 100-year
flood elevation,jurisdictional delineation of the wetland boundary approved by the Oregon
Department of State Lands (if applicable), riparian setback, existing vegetation, existing and
proposed site improvements, topography, and other relevant features.
Woodburn Development Ordinance Section 2.05 Page 6
Exhibit C
H. Coordination with the Department of State Lands
The Oregon Department of State Lands shall be notified in writing of all applications to the
City for development activities, including applications for plan and/or zone amendments,
development or building permits, as well as any development proposals by the City that may
affect any wetlands, creeks or waterways.
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2.05.03 Southwest Industrial Reserve
A. Purpose
The Southwest Industrial Reserve (SWIR) is intended to protect suitable industrial sites in
Southwest Woodburn, near Interstate 5, for the exclusive use of targeted industries identified
in the Comprehensive Plan. This broad objective is accomplished by master planning,
retention of large industrial parcels, and restricting non-industrial land uses.
B. Application of the SWIR Zone
Land designated on the Comprehensive Land Use Plan Map as Southwest Industrial Reserve
shall only be zoned SWIR.
C. Dimensional Standards:
The following dimensional standards shall be the minimum requirements for all
development within the SWIR zone:
I. Land divisions may only be approved following approval of a master plan, as required
in this ordinance.
2. Lots in a SWIR zone shall comply with the standards of Table 2.04E For a land
division, at least one lot shall be sized to meet each of the required lot size ranges listed
in Table 2.04F for each site, except that smaller required lots may be combined to create
larger required lots.
D. Master Planning Requirement
I. A master development plan shall be approved by the City Council for the entire area
designated SWIR on the Comprehensive Land Use Plan Map, prior to annexation of any
property within the SWIR Comprehensive Plan Map designation. The master plan shall
be conceptual and non-binding in nature, but may be used as a general guide for
development within the SWIR.
2. The required master plan shall show:
a. The location and rights-of-way for existing and planned streets, which shall provide
access to all existing and proposed parcels, consistent with the Transportation
System Plan;
b. The location and size of existing and planned sanitary sewer, storm water and water
Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
facilities, at adequate levels to serve existing and proposed industrial development;
c. The location and area of the Riparian Corridor and Wetlands Overlay District
(RCWOD) as it affects existing and proposed industrial parcels. Planned streets
and public facilities that cannot reasonably avoid the RCWOD shall be indicated;
d. Parcels consistent with the lot sizes indicated in Table 2.0513;
e. Pedestrian and bicycle connections consistent with the TSP.
E. Removal of the SWIR Zone
Removal of the SWIR zone from any area or parcel shall require the following:
I. A revised Economic Opportunities Analysis and Industrial Site Suitability Analysis,
consistent with the Goal 9 Rule (OAR Chapter 660, Division 9);
2. A new Statewide Planning Goal 2 Exception that explains why other land within or
adjacent to the UGB, that does not require an exception, cannot meet the purported
need;
3. A Comprehensive Plan Amendment that demonstrates compliance with all applicable
Statewide Planning Goals, applicable goals and policies of the Marion County
Framework Plan, and applicable goals and policies of the Comprehensive Plan;
4. A Zoning Map amendment that demonstrates consistency with the Comprehensive Plan.
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Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
5.03 Type III (Quasi-Judicial) Decisions
5.03 General Requirements
A. The purpose of this Section is to identify what types of actions are considered Type III
decisions. Type III decisions involve significant discretion and evaluation of subjective
approval standards,yet are not required to be heard by the City Council, except upon
appeal. The process for these land use decisions is controlled by ORS 197.763. Notice of
the application and the Planning Commission or Design Review Board hearing is
published and mailed to the applicant, recognized neighborhood associations and property
owners. The decision of the Planning Commission or Design Review Board is appealable
to the City Council. The City Council's decision is the City's final decision and is
appealable to the Land Use Board of Appeals.
B. To initiate consideration of a Type III decision, a complete City application,
accompanying information, and filing fee must be submitted to the Director. The Director
will evaluate the application as outlined in this Section.
5.03.01 Conditional Use
5.03.02 Design Review, Type III
5.03.03 Adjustment to Street Improvement Requirements ("Street Adjustment")
5.03.04 Manufactured Dwelling Park, Preliminary Approval
5.03.05 Phasing Plan for a Subdivision, PUD, Manufactured Dwelling Park or any
other Land Use Permit
5.03.06 Planned Unit Development(PUD), Preliminary Plan Approval
5.03.07 Planned Unit Development(PUD), Design Plan Final Approval
5.03.08 Special Conditional Use -Historically or Architecturally Significant
Building
5.03.09 Special Use as a Conditional Use
5.03.10 Subdivision Preliminary Approval
5.03.11 Telecommunications Facility, Specific Conditional Use
5.03.12 Variance
5,03.01 Conditional Use
A. Purpose: A conditional use is an activity which is permitted in a zone but which, because
of some characteristics, is not entirely compatible with other uses allowed in the zone,
and cannot be permitted outright. A public hearing is held by the Planning Commission
and conditions may be imposed to offset impacts and make the use as compatible as
practical with surrounding uses. Conditions can also be imposed to make the use conform
to the requirements of this Ordinance and with other applicable criteria and standards.
Conditions that decrease the minimum standards of a development standard require
variance approval.
Woodburn Development Ordinance Page 9
Exhibit C
1) Aesthetics; and
2) Vehicular traffic.
2. The conformance of the proposed use with applicable Comprehensive Plan policies;
and
3. The suitability of proposed conditions of approval to ensure adequate public
facilities are available to serve the site and compatibility with other uses in the
vicinity.
4. The specific standards and criteria this ordinance (Section 2.08.03) shall be met.
5,03.02 Variance
A. Purpose: The purpose of this Type III Variance is to allow use of a property in a way that
would otherwise be prohibited by this Ordinance. Uses not allowed in a particular zone
are not subject to the variance process. Standards set by statute relating to siting of
manufactured homes on individual lots; siding and roof of manufactured homes; and
manufactured home and dwelling park improvements are non-variable.
B. Criteria: A variance may be granted to allow a deviation from development standard of
this ordinance where the following criteria are met:
1. Strict adherence to the standards of this ordinance is not possible or imposes
an excessive burden on the property owner, and
2. Variance to the standards will not unreasonably impact existing or potential uses
or development on the subject property or adjacent properties.
C. Factors to Consider:A determination of whether the criteria are satisfied involves
balancing competing and conflicting interests. The factors that are listed below are not
criteria and are not intended to be an exclusive list and are used as a guide in determining
whether the criteria are met.
1. The variance is necessary to prevent unnecessary hardship relating to the land
or structure, which would cause the property to be unbuildable by application
of this Ordinance. Factors to consider in determining whether hardship exists,
include:
a. Physical circumstances over which the applicant has no control related to the
piece of property involved that distinguish it from other land in the zone,
including but not limited to, lot size, shape, and topography.
b. Whether reasonable use similar to other properties can be made of the
property without the variance.
c. Whether the hardship was created by the person requesting the variance.
2. Development consistent with the request will not be materially injurious to adjacent
properties. Factors to be considered in determining whether development
consistent with the variance materially injurious include, but are not limited to:
a. Physical impacts such development will have because of the variance, such
Woodburn Development Ordinance Page 10
Exhibit C
as visual, noise, traffic and drainage, erosion and landslide hazards.
b. Incremental impacts occurring as a result of the proposed variance.
3. Existing physical and natural systems, such as but not limited to traffic, drainage,
dramatic land forms or parks will not be adversely affected because of the
variance.
4. Whether the variance is the minimum deviation necessary to make reasonable
economic
use of the property;
5. Whether the variance conflicts with the Woodburn Comprehensive Plan.
6. If and where a variance includes a request to vary from minimum public improvements
per Section 3.01, from Section 5.02.04E about Street Adjustment factors, those factors
are applicable as Variance additional factors.
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Woodburn Development Ordinance Page 11
Exhibit C
OPTION 1 PROPOSED ORDINANCE "Model Code" EXHIBIT 103
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. Definitions.
(A) "Area of Special Flood Hazard" means the land in the flood plain within a
community subject to a one percent or greater chance of flooding in any given year.
The area may be designated as Zone A on the FIRM. Zone A is usually refined into Zones
A, AO, AH, Al-30, AE, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH or AR/A. (Amended by
Ordinance 2253, January 10, 2000)
(B) "Base Flood" means the flood having a one percent chance of being equaled
or exceeded in any given year. Also referred to as the "100-year flood." (Amended by
Ordinance 2253, January 10, 2000)
(C) "Base Flood Elevation (BFE)" means the elevation to which floodwater is anticipated
to rise during the base flood.
(D) "Development" means any man-made changes to improved or
unimproved real estate including, but not limited to, buildings or other structures,
mining,
dredging, filling, grading, paving, excavation, or drilling operations located within the
area of special flood hazard.
(E) "FIRM". An acronym for Flood Insurance Rate Map. This is the official map of
the community, on which has been delineated both the special hazard areas and the risk
premium zones applicable to the City of Woodburn. (Amended by Ordinance 2253,
January 10, 2000)
(F) "Flood or Flooding" means a general and temporary condition of partial or
complete inundation of normally dry land areas.
(G) "Oregon Implementation Plan" refers to the 2024 FEMA Draft Implementation Plan
for NFIP-ESA Integration in Oregon.
(H) "Floodway" means the channel of a stream or other water course and the
adjacent land areas that must be reserved in order to discharge the base flood without
cumulatively increasing water surface elevations more than one (1) foot.
(1) "Fill" is the placement of any materials such as soil, gravel, crushed stone or other
materials that change the elevation of the floodplain.
Exhibit C
(J)"Fish Accessible Space" is the volumetric space available for fish to access.
(K)"Fish Egress-able Space" is the volumetric space available for fish to exit or leave
"fish accessible space".
(L)"Flood Elevation Study, Flood Insurance Study" means an examination,
evaluation, and determination of flood hazards or flood-related erosion standards.
(M)"Habitat Restoration Activities" are activities with the sole purpose of restoring
habitats that have only temporary impacts and long-term benefits to habitat. Such
projects cannot include any ancillary structures and must demonstrate that no rise
in the BFE would occur as a result of the project.
(N)"Highest adjacent grade"The highest natural elevation of the ground surface
prior to construction.
(0)"Impervious Surface" a surface that cannot be significantly penetrated by water
and thereby prevents infiltration and increases the amount of, and rate of, surface
water runoff.
(P)"Low Impact Development" Is an approach to development that utilizes
designing and implementing practices that can be employed to control stormwater
and replicate the predevelopment hydrology of the site.
(Q)"Mean Higher-High Water" is the average of higher-high water height of each tidal
d ay.
(R)"No Net Loss" a standard where adverse impacts must be avoided or offset
through adherence to certain requirements so that there is no net change in the
function from the existing condition when a development application is submitted
to the City.The core floodplain functions of storage, water quality, and vegetation
must be maintained or mitigated.
(S)"Ordinary High Water Mark(OHWM)" means the line on the shore or bank
established by the fluctuations of water and indicated by physical characteristics
such as a clear, natural line impressed on a bank, changes in soil characteristics,
changes in terrestrial vegetation, the presence of debris, or other appropriate
means that consider the characteristics of the surrounding area.
(T)"Qualified Professional" means an appropriate subject matter as defined by the
community, state, or federal guidelines.
(U)"Riparian Buffer Zone (RBZ)7is a boundary of which that is measured from the
Ordinary High Water Mark of a fresh water body to+7-&50 feet horizontally on each
Exhibit C
side of a stream or wetland. If/when the RBZ is [argerthan the SFHA, then"no net
loss" standards shall only apply to the SFHA.
Section 2. Purpose. It is the purpose of this ordinance to comply with the requirements
outlined in the 2024 FEMA Draft Implementation Plan for NFIP-ESA integration in Oregon
("Oregon Implementation Plan") and to supplement the City of Woodburn Flood Plain
Management Ordinance to better integrate Endangered Species protections in special
flood hazard areas as defined in this ordinance.
Section 3. General Provisions.
a. LANDS TO WHICH THIS ORDINANCE APPLIES
This ordinance shall apply to all special flood hazard areas, including but not
limited to FEMA Special Flood Hazard Areas.
b. BASIS FOR ESTABLISHING THE SPECIAL FLOOD HAZARD AREAS
(SEE ORDINANCE 2253: "DESIGNATION OF A FLOODPLAIN MANAGER")
c. COORDINATION WITH STATE OF OREGON SPECIALTY CODES
Pursuant to the requirement established in ORS 455 that the City of Woodburn
administers and enforces the State of Oregon Specialty Codes, the City of
Woodburn does hereby acknowledge that the Oregon Specialty Codes contain
certain provisions that apply to the design and construction of buildings and
structures located in special flood hazard areas. Therefore, this ordinance is
intended to be administered and enforced in conjunction with the Oregon
Specialty Codes.
Section 4. Compliance and Penalties.
a. COMPLIANCE
All development within special flood hazard areas is subject to the terms of this
ordinance and required to comply with its provisions and all other applicable
regulations.
b. PENALTIES FOR NONCOMPLIANCE
No structure or land shall hereafter be constructed, located, extended, converted, or
altered without full compliance with the terms of this ordinance and other
applicable regulations. Violations of the provisions of this ordinance by failure to
comply with any of its requirements (including violations of conditions and
Exhibit C
safeguards established in connection with conditions) shall constitute a [SPECIFY
LEGAL] Nothing contained herein shall prevent the City of Woodburn from taking
such other lawful action as is necessary to prevent or remedy any violation.
Section 5. Abrogation and Severability
a. ABROGATION
This ordinance is not intended to repeal, abrogate, or impair any existing easements,
covenants, or deed restrictions. However, where this ordinance and another
ordinance, easement, covenant, or deed restriction conflict or overlap, whichever
imposes the more stringent restrictions shall prevail.
b. SEVERABILITY
This ordinance and the various parts thereof are hereby declared to be severable. If
any section clause, sentence, or phrase of the Ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no
way effect the validity of the remaining portions of this Ordinance.
Section 6. Liability
a. WARNING
The degree of Flood Protection required by this ordinance is considered reasonable
for regulatory purposes and is based on federal scientific and engineering
considerations. Larger floods can and will occur on rare occasions. Flood heights may
be increased by man-made or natural causes The Special Flood Hazard Area
boundaries are an estimate based on survey data and may be inaccurate.This
ordinance does not imply that any land outside of the areas of SFHAs or uses
permitted in such areas will be free from flooding or damages.
b. DISCLAIMER OF LIABILITY
This ordinance shall not create liability on the part of the City of Woodburn, any
officer or employee thereof, for any flood damages that result from reliance on this
ordinance or any administrative decision lawfully made hereunder.
Section 7. Variances
a. Superseding prior ordinances, a variance shall not be issued unless it is
demonstrated that the development will not result in any net loss of pervious
surface, critical habitat, or Significant Trees as defined in the Woodburn
Development Ordinance.
Exhibit C
b. Through a Variance, the City may permit encroachments within the adopted
regulatory floodway that would result in an increase in base flood elevations,
provided that conditional approval has been obtained by the Federal Insurance
Administrator through the Conditional Letter of Map Revision (CLOMR) application
process, all requirements established under 44 CFR 65.12 are fulfilled, and the
encroachment(s) comply with the no net loss standards in section 8.
Section 8. Standards for Protection of Floodplain Functions
Adherent to the NMFS 2016 Biological Opinion, mitigation is likely necessary to
ensure a no net loss in floodplain functions during development. FEMA's 2024 Draft
Oregon Implementation Plan identifies proxies that provide measurable actions that
can prevent the no net loss of the parent floodplain functions.These proxies include
undeveloped space, pervious surfaces, and trees to account for a no net loss in
respective floodplain functions of floodplain storage,water quality, and vegetation.
Mitigation of these proxies must be completed to ensure compliance with no net
loss standards. No net loss applies to the net change in floodplain functions as
compared to existing conditions at the time of proposed development and
mitigation must be addressed to the floodplain function that is receiving the
detrimental impact. The standards described below apply to all special flood hazard
areas as defined in Section 1. Other methods and measures of mitigation may be
accepted under the discretion of the Director and/or Floodplain Manager.
A. No net loss of the proxies for the floodplain functions mentioned in Section 8 is
required for development in the special flood hazard area that would reduce
undeveloped critical habitat, increase impervious surface, or result in a loss of
trees that are 24-inches diameter-at-breast-height (dbh) or greater. No net loss
can be achieved by first avoiding negative effects to floodplain functions to the
degree possible, then minimizing remaining effects, then replacing and/or
otherwise compensating for, offsetting, or rectifying the residual adverse effects
to the defined functions and attributes.
B. Compliance with no net loss for undeveloped space or impervious surface is
preferred to occur prior to the loss of habitat function but, at a minimum, shall
occur concurrent with the loss.
C. Development proposals shall not reduce the fish-accessible and egress-able
habitat and flood storage volume created by undeveloped space within the
special flood hazard area. A development proposal with an activity that would
impact undeveloped space shall achieve no net loss of fish accessible and
egress-able space and flood storage volume.
D. Lost undeveloped space must be replaced with fish-accessible and egress-able
compensatory volume based on the ratios set forth in WDO SECTION XXXXX and
Exhibit C
be hydrologically connected to the waterbody that is the flooding source & be
designed so that there is no significant increase inflow velocity.
E. Impervious surface mitigation shall be mitigated through any of the following
options:
a. Development proposals shall not result in a net increase in impervious
surface area within the SFHA through the use of ratios prescribed in
TABLE X, [INCLUDE?]
b. Use low impact development or green infrastructure to infiltrate and treat
stormwater produced by the new impervious surface, as documented by
a qualified professional, or
c. If prior methods are not feasible and documented by a qualified
professional stormwater retention is required to ensure no increase in
peakvolume or flow and to maximize infiltration, and treatment is
required to minimize pollutant loading.
F. Development proposals shall result in no net loss of trees 24-inches dbh or
greaterwithin the special flood hazard area.
G. Trees of or exceeding 24-inches dbh that are removed from the RBZ, Floodway,
or RBZ-fringe must be replaced at the ratios in WDO Section XXXX and planted
within the special flood hazard area.
H. Replacement trees must be native species that would occur naturally in the
ecoregion of the impact area.
Section 9. Stormwater Management
A.Water Treatment and Detention
a. Water quality/pollution management treatment for post-construction
stormwater runoff is required for any net increase in impervious area.
b. Stormwater retention or detention facilities may be required at Director
and/or Floodplain Manager or City Engineer discretion.
c. Any treatment facility or installation must limit discharge to match pre-
development discharge rates for the 10-year peak flow.
d. Any treatment facility or installation must remove sediment and
pollutants from impervious surfaces such that at least 80 percent of
suspended solids are removed from stormwater prior to discharge.
B. Stormwater treatment practices for multi-parcel facilities, including
subdivisions, shall have an enforceable operation and maintenance agreement to
ensure the system functions as designed. This agreement will include:
a. Access to stormwater treatment facilities at the site by the City for the
purpose of inspection and repair.
Exhibit C
b. A legally binding document specifying the parties responsible for the
proper maintenance of the stormwater treatment facilities.
c. The agreement will be recorded and bind subsequent purchasers and
sellers even if they were not party to the original agreement.
d. For stormwater controls that include vegetation and/or soil permeability,
the operation and maintenance manual must include maintenance of
these elements to maintain the functionality of the feature.
e. The responsible party for the operation and maintenance of the
stormwater facility shall have the operation and maintenance manual on
site and available at all times.
f. Records of the 1293 maintenance and repairs shall be retained and made
available for inspection by the City or Marion County as applicable for five
years.
Section 10. Activities Exempt From No Net Loss Standards
The following activities are not subject to the no net loss standards in Section 8;
however, they may not be exempt from floodplain development permit requirements.
A. Normal maintenance of structures, such as re-roofing and replacing siding,
provided there is no change in the footprint or expansion of the roof of the structure;
B. Normal street, sidewalk, and road maintenance, including filling potholes,
repaving, and installing signs and traffic signals, that does not alter
contours, use, or alter culverts and is less than six inches above grade.
Activities exempt do not include expansion of paved areas;
C. Routine maintenance of landscaping that does not involve grading,
excavation, or filling;
D. Routine agricultural practices such as tilling, plowing, harvesting, soil
amendments, and ditch cleaning that does not alter the ditch configuration
provided the spoils are removed from special flood hazard area or tilled into
fields as a soil amendment;
E. Routine silviculture practices (harvesting of trees), including hazardous fuels
reduction and hazard tree removal as long as root balls are left in place;
F. Removal of noxious weeds and hazard trees, and replacement of non-native
vegetation with native vegetation;
G. Normal maintenance of above ground utilities and facilities, such as
replacing downed power lines and utility poles provided there is no net
change in footprint;
Exhibit C
H. Normal maintenance of a levee or other flood control facility prescribed in
the operations and maintenance plan for the levee or flood control facility.
Normal maintenance does not include repair from flood damage, expansion
of the prism, expansion of the face or toe or addition of protection on the
face or toe with rock armor.
I. Habitat restoration activities.
J. Pre-emptive removal of documented susceptible trees to manage the
spread of invasive species.
K. Projects that are covered under separate consultations under Section 4(d),
7, or 10 of the Endangered Species Act (ESA).
Section 11. Riparian Buffer Zone
A. The Riparian Buffer Zone is measured from the ordinary high-water line of a
fresh waterbody (lake; pond; ephemeral, intermittent, or perennial stream)
or mean higher-high water of a marine shoreline or tidally influenced river
reach to 50 feet horizontally on each side of the stream or inland of the
MHHW. The riparian buffer zone includes the area between these outer
boundaries on each side of the stream, including the stream channel.
B. Functionally dependent uses are only subject to the no net loss standards in
Section 8 for development in the RBZ. Ancillary features that are
associated with but do not directly impact the functionally dependent use in
the RBZ (including manufacturing support facilities and restrooms) are
subject to the beneficial gain standard in addition to no net loss standards.
C. Any other use of the RBZ requires a greater offset to achieve no net loss of
floodplain functions, on top of the no net loss standards described above,
through the beneficial gain standard.
D. Under FEMA's beneficial gain standard, an area within the same reach of
the project and equivalent to 5% of the total project area within the RBZ
shall be planted with native herbaceous, shrub and tree vegetation.
Exhibit C
Exhibit C
OPTION 2 PROPOSED ORDINANCE "Permit-by-Permit" EXHIBIT 104
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. For purposes of this ordinance amendment, all new text is shown as up..In..,deprvined
.. p„rv„ „ (i.e. new text) and all deleted text is shown as stricken (i.e. deleted text). After this
ordinance amendment is adopted, the Community Development Director shall update the WDO
and the Comprehensive Plan to incorporate all revisions contained herein.
Section 2.The WDO is amended as specified in Exhibit A that is attached hereto.
Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
Woodburn Development Ordinance
WDO
Adopted by Ordinance 2313 on April 9,2002
Acknowledged December 22, 2006
Amendments:
Ordinance 2423 on July 28, 2007
Ordinance 2446 on Sept. 8, 2008
Ordinance 2465 on Mar. 24, 2010
Ordinance 2473 on Dec. 13, 2010
Ordinance 2480 on Sept. 26, 2011
Ordinance 2492 on Sept. 10, 2012
Ordinance 2509 on Aug. 12, 2013
Ordinance 2510 on Sept. 23, 2013
Ordinance 2520 on July 28, 2014
Ordinance 2526 on Feb. 9,2015
Ordinance 2538 on Sept. 26, 2016
Ordinance 2541 on Nov. 14, 2016
Ordinance 2544 on Jan. 9,2017
Ordinance 2561 on July 9, 2018
Ordinance 2562 on Sept. 10, 2018
Ordinance 2573 on June 24, 2019
Ordinance 2579 on Apr. 13, 2020
Ordinance 2602 on May 9,2022 (LA 21-01)
Ordinance 2603 on June 13, 2022 (LA 21-02)
Ordinance 2621 on Feb. 26, 2024 (LA 21-03)
Ordinance 2629 on July 22, 2024 (LA 24-02)
_Otujhi�uuicc 2757 cuuu M�iy 22, 2025 (LA 25 01
Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
2.05.01 Riparian Corridor and Wetlands Overlay District
A. Purpose
The Riparian Corridor and Wetlands Overlay District(RCWOD) is intended to conserve,
protect and enhance significant riparian corridors, wetlands, and undeveloped floodplains in
keeping with the goals and policies of the Comprehensive Plan. The RCWOD is further
intended to protect and enhance water quality,prevent property damage during floods and
storms, limit development activity in designated areas,protect native plant species, maintain
and enhance fish and wildlife habitats, and conserve scenic and recreational values.
B. Boundaries of the RCWOD
1. The RCWOD includes:
a. Riparian corridors extending upland 50 feet from the top of the bank of the main
stem of Senecal Creek and Mill Creek and those reaches of their tributaries
identified as fish-bearing perennial streams on the Woodburn Wetlands Inventory
Map; and
b. Significant wetlands identified on the Woodburn Wetlands Inventory Map. Where
significant wetlands are located fully or partially within a riparian corridor, the
RCWOD shall extend 50 feet from the edge of the wetland; and
c. The 100-year floodplain on properties identified as vacant or partly vacant on the
2005 Woodburn Buildable Lands Inventory.
2. The approximate boundaries of the RCWOD are shown on the Zoning Map. The
precise boundaries for any particular lot should be verified by the property owner when
making a land use application. Map errors may be corrected as provided in this
Ordinance (Section 1.02.04).
C. Permitted Uses and activities
The following uses and activities are allowed,provided they are designed and constructed to
minimize intrusion into the RCWOD uicl ffi it tic uses uicl ictMfics clo tiot occur oti i dot or
��rrcc fiV �fi a d°�� �r�rr ��rrd:u ��� c c��aa c�rrc fl fiV c L "ii A S 6,iu Hoocl I kiz i rrcl Arc ,.
1. Erosion or flood control measures that have been approved by the Oregon Department
of State Lands, the U.S. Army Corps of engineers, or another state or federal regulatory
agency
2. Maintenance of existing structures, lawns and gardens
3. Passive recreation uses and activities
4. Removal of non-native plant species and replacement with native plant species
5. Public streets and off-street public bicycle/pedestrian facilities that other WDO sections
require.
6. Utilities
7. Water-related and water-dependent uses, including drainage facilities, water and sewer
facilities, flood control projects, drainage pumps,public paths, vehicular means of
access to such uses, trails,picnic areas or interpretive and educational displays and
Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
overlooks, including benches and outdoor furniture.
Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
D. Prohibited Uses and Activities
1. New buildings or structures or impervious surfaces, except for replacement of existing
structures within the original building footprint
2. Expansion of existing buildings or structures or impervious surfaces
3. Expansion of areas of pre-existing non-native landscaping such as lawn, gardens,etc.
4. Dumping,piling, or disposal of refuse,yard debris, or other material
5. Removal of vegetation except for:
a. Uses permitted by this Section
b. Perimeter mowing of a wetland for fire protection purposes;
c. Water-related or water-dependent uses,provided they are designed and constructed
to minimize impact on the existing riparian vegetation;
d. Removal of emergent in-channel vegetation that has the potential to cause flooding;
e. Hazardous tree removal.
6. Grading, excavation and the placement of fill except for uses permitted by this Section.
E. Variances
The restrictions of this Section may be reduced or removed if they render an existing lot or
parcel unbuildable or work an excessive hardship on the property owner. The reduction or
removal shall e decided through the Variance process. d` Ub��p �� � y � d �u�: u.a..ly ..or occurs o o y�ig us....cnguli errc(fl....orr p i rrfi ffly c�c��a�����rrc�fl y fibc E L l Hoocl:
duly !!S� e reclu :evil or rea iovecl,.
F. Site Maintenance
1. Any use, sign or structure, and the maintenance thereof, lawfully existing on the date of
adoption of this ordinance, is permitted within the RCWOD. Such use, sign or structure
may continue at a similar level and manner as existed on the date of the adoption of this
ordinance.
2. The maintenance and alteration of pre-existing ornamental landscaping is permitted as
long as no native vegetation is disturbed. Maintenance of lawns,planted vegetation and
landscaping shall be kept to a minimum and not include the spraying of pesticides or
herbicides. Vegetation that is removed shall be replanted with native species.
Maintenance trimming of existing trees shall be kept at a minimum and under no
circumstances can the trimming maintenance be so severe as to compromise the tree's
health, longevity, and resource functions. Vegetation within utility easements shall be
kept in a natural state and replanted when necessary with native plant species.
G. Site Plan
When a use or activity that requires the issuance of a building permit or approval of a land
use application is proposed on a parcel within, or partially within the RCWOD, the property
owner shall submit a site plan to scale showing the location of the top-of-bank, 100-year
flood elevation,jurisdictional delineation of the wetland boundary approved by the Oregon
Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
Department of State Lands (if applicable), riparian setback, existing vegetation, existing and
proposed site improvements, topography, and other relevant features.
H. Hoocl I kizircl Argi Reqidreaients
hi '1c4'UW' I tffornuifioti tjecg��cir to scMsl I y fli,
��[I !�� , wy � Y ci [,)ernjit i[,?p�iC(Ifiotl amst
ut16�(Ie i Hoocl I kiNmt Assess�jigjjj �3:ep��E! cog(�i�cte(� by I qijlMie(� prQl'ess�ogi� evi�i�'Ifitlg
gg'-'Mve ualp'lct to I I oo(I['?bflg I'm1cflotis 'iticl u(Jenffl'y adtqnMoti aiecisi�res
tlecesscla !Q c cuurr Lit (11 Y KWQc�Ll wuH be uti co ii[2H tice wufli flic 20 0
Mifioti,iV Mir tie FWierjes Sery ces ( 6c,'NMI's) �o�o. �1V Qpitliotl 0 i(_ p) "tio tiet ioss"
svuicl,ircls AH adfignifioti recoamienclifiotis c siubadttecl rep E!u hffl be
ut16uclecl is coticl�fiotls ol I'U'2uQy'i I,or !��!jculce
I. Coordination with the Department of State Lands
The Oregon Department of State Lands shall be notified in writing of all applications to the
City for development activities, including applications for plan and/or zone amendments,
development or building permits, as well as any development proposals by the City that may
affect any wetlands, creeks or waterways.
Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
Woodburn Development Ordinance Section 2.05 Page X
Exhibit C
WTA.00DBURN9ea& 1&m
In.co.pora 4 1859
April 14, 2025
TO: Honorable Mayor and City Council through City Administrator
FROM: Chris Kerr, Community Development Director
Dago Garcia, City Engineer
SUBJECT: Initiate Amendments of the Woodburn Development Ordinance (WDO)
and the City's Floodplain Management Ordinance necessary for
conformance with the Federal Emergency Management Agency's
(FEMA) National Flood Insurance Program (NFIP)-Endangered Species
Act(ESA) Integration in Oregon (LA 2025-01)
RECOMMENDATION:
Adopt the attached Resolution initiating the legislative amendment process for
amending the Woodburn Development Ordinance and the Woodburn Flood Plain
Management Ordinance.
BACKGROUND:
The Federal Emergency Management Agency's (FEMA's) mission is to help people
before, during, and after disasters. The National Floor Insurance Program (NFIP) was
created by the U.S. Congress in 1968 to help minimize the costs of disaster relief and
reduce the loss of life and property caused by flooding. NFIP-participating
communities (which includes Woodburn) are then required to maintain state and
local floodplain management regulations that reduce future flood damage. The
regulations include construction methods and details that must be followed when
constructing within flood management areas, and they control the alteration of the
floodplain so as not to increase flood damage risk. As a result of the City
participating in the NFIP, property owners within the City limits are eligible to
purchase federally backed flood insurance policies.
As a federal agency, FEMA must also consider whether NFIP activities affect
threatened and endangered species protected by the Endangered Species Act
(ESA).
In 2009, FEMA was sued by several environmental groups in Oregon for failing to
adequately consider the effects of the NFIP on ESA listed species and their habitat
Agenda Item Review: City Administrator City Attorney x_ Finance_x
9
Exhibit C
Honorable Mayor and City Council
April 14, 2025
Page 2
in Oregon. In 2010, FEMA settled; agreed to consult regarding the effects of the NFIP
in Oregon on threatened and endangered species and designated critical habitat.
In April 2016, the National Marine Fisheries Service issued the Oregon NFIP Biological
Opinion (BiOp). The BiOp concluded FEMA's implementation of the NFIP in Oregon
jeopardizes the continued existence of threatened and endangered species and
adversely modifies designated critical habitat. Subsequently, FEMA has been
evaluating proposed changes to the NFIP through an environmental impact
statement (EIS), in compliance with the National Environmental Policy Act (NEPA).
The Final Implementation Plan for the proposed changes is anticipated by 2026
following the Record of Decision in the EIS process, then FEMA will fully implement
the plan in 2027. Until then, communities have been directed by FEMA to begin
taking action to protect habitat and achieve what is called "no net loss."
Since last fall, FEMA has offered certain workshops and assistance for local
communities to learn more in order to implement interim measures, called Pre-
Implementation Compliance Measures (PICMs).
NFIP Communities have been directed to select one of the following three PICMs:
1) Prohibit all new development in the floodplain.
2) Incorporate the ESA into local floodplain ordinances (based on a model
ordinance developed by FEMA).
3) Require permit applicants to develop a Floodplain Habitat Assessment
documenting that their proposed development in the Special Flood Hazard Area
will achieve "no net loss."
Option #1 is draconian and unrealistic due the severe impacts on property owners
in the city. Option #2 (adoption of the PICM model floodplain ordinance) by a
community is intended to ensure that development meets ESA compliance as
performance standards are built into the code. Option #3, a/k/a "Permit-by-Permit"
approach would require each individual development application to analyze
potential loss to floodplain functions and propose mitigation that abides by the
mitigation requirements outlined in the habitat assessment guide and ensures no net
loss of the impacted functions.
Communities must report to FEMA on their implementation of interim measures.
Based on FEMA's timeframe for election of the PICMs (Dec 1, 2024), the City has
been "defaulted" to the permit-by-permit option described above, but it may still
choose to adopt the FEMA model ordinance by incorporating their model code into
the applicable sections of our WDO and related floodplain management
regulations.
10
Exhibit C
Honorable Mayor and City Council
April 14, 2025
Page 3
While participation in the NFIP is voluntary, nonparticipating flood-prone
communities and communities who have withdrawn or are suspended from the
program face the following sanctions:
1. No resident will be able to purchase a flood insurance policy.
2. Existing flood insurance policies will not be renewed.
3. No Federal grants or loans for development may be made in identified flood
hazard areas under programs administered by Federal agencies such as HUD,
EPA, and SBA;
4. No Federal disaster assistance may be provided to repair insurable buildings
located in identified flood hazard areas for damage caused by a flood.
5. No Federal mortgage insurance or loan guarantees may be provided in
identified flood hazard areas. This includes policies written by FHA, VA, and
others.
6. Federally insured or regulated lending institutions such as banks and credit
unions must notify applicants seeking loans for insurable buildings in flood hazard
areas that there is a flood hazard and that the property is not eligible for Federal
disaster relief.
Rather than risk suspension or removal from the NFIP, City staff feel strongly that the
City should initiate an ordinance adoption process to meet the implementation
deadlines currently set by FEMA (July 31, 2025).
While a group of local governments in the State are seeking a preliminary injunction
against the new NFIP directives, and the City is closely monitoring that litigation for
any decision that may halt or delay implementation of the PICMs, staff want to be
prepared with an adoption option regardless of such outcome.
DISCUSSION:
The City is proposing amendments to the Woodburn Development Ordinance and
Woodburn Floodplain Ordinance to comply with the PICM. In the coming weeks,
staff will complete its detailed technical and legal analysis of Options #2 and #3 of
the three PICM options (adoption of the model code or establish an individual
permit-by-permit site habitat assessment) to determine which option to carry
forward for recommended adoption. In general, the code amendments will be
directed by FEMA to protect habitat and achieve "no net loss" measures that will
avoid, minimize, and mitigate impacts to Upper Willamette salmonoid species in the
floodplain areas. The goal is for floodplain development in Woodburn to achieve
11
Exhibit C
Honorable Mayor and City Council
April 14, 2025
Page 4
..no net loss" to beneficial floodplain functions which would look like no net increase
in fill, no net increase in impervious surfaces, and no net loss of trees.
Both PICM options—the model code and the habitat assessment—present
administrative challenges, however:
• Adoption of specific code provisions will provide a clearer road map for staff
and applicants, but the current model has not been reviewed by the state
(DLCD) and may fail to meet Oregon housing requirements of being "clear
and objective."
• Applicants likely will need to retain consultant services for both options, but
the site-by-site habitat assessment approach likely would require these to a
greater degree.
• Under the site-by-site habitat assessment approach, it would be advisable for
the County to retain a third-party reviewer with the necessary professional
expertise to review the habitat assessments submitted by applicants. There
are additional administrative costs associated with executing and managing
this type of contract.
The proposed amendments will be reviewed and processed as Type 4 Legislative
Amendments to the WDO. Currently, staff is aiming for the Woodburn Planning
Commission to hold a public hearing on May 22, 2025, to consider the amendments.
The Commission is expected to close the public hearing and deliberate on the
proposed amendments that night. The Commission will then make a
recommendation to the City Council. It is expected that a City Council public
hearing on the amendments will occur in June.
Woodburn properties that may be affected by the code amendments (e.g. those
located within the Special Flood Hazard Area) will be mailed notice 20-40 days prior
to the first public hearing on this matter.
FINANCIAL IMPACT:
None.
Attachments:
• FEMA Letter to NFIP-Participating Communities-July 15, 2024
• FEMA- Pre-Implementation Compliance Measures Fact Sheets
• Oregon Department of Land Conservation & Development (DLCD) PICM FAQ
• Map of Woodburn Special Flood Hazard Areas
12
Exhibit C
U.S.Department ofH nnelanti Security
ISO 2.2801 Str°.et,SIN
fl,a1 1,VdA 48021-5627
FEMAxw
N17 SY;4
July 15,2024
Frank Lonergan
270 Montgomery Street
Woodburn,Oregon 97071
Dear Frank Lonergan:
The purpose of this letter is to announce the start of the United States Department of Homeland
Security's Federal Emergency Management Agency's(FEMA)Pre-Implementation Compliance
Measures(PICM)for National Flood Insurance Program(NFIP)participating communities in
Oregon.The intent of PICM is to ensure the continued existence of threatened or endangered species
in compliance with the Endangered Species Act(ESA). These measures include coordination with
communities to provide appropriate technical assistance,help identify available resources,deliver
trainings,and facilitate workshops to ensure on-going community participation in the NFIP. These
pre-implementation compliance measures will assist communities in preparing for the Final NFIP-
ESA Implementation Plan by helping them develop short and long-term solutions to ensure their on-
going participation in the NFIP.
FEMA is currently conducting a National Environmental Policy Act(NEPA)evaluation of impacts
associated with the Oregon NFIP-ESA Implementation Plan.FEMA developed this plan,in part,due
to a Biological Opinion in 2016 from National Marine Fisheries Services.The Biological Opinion
recommended specific measures for FEMA to take to avoid jeopardizing endangered species,
including interim compliance measures. The release of the Final Implementation Plan (Plan) is
anticipated by 2026, following the Record of Decision in the Environmental Impact Statement(EIS)
process,then FEMA will fully implement the Plan in 2027.
FEMA has heard concerns from several communities regarding challenges they are facing to meet
the expectations of this Plan. To provide communities with the support needed to incorporate ESA
considerations to their permitting of development in the floodplain,FEMA will inform,educate, and
support our Oregon NFIP participating communities through the PICM before the Final
Implementation Plan is released.
NFIP participating communities in Oregon must select one of the PICM pathways which include the
following: (1)adopt a model ordinance that considers impacts to species and their habitat and
requires mitigation to a no net loss standard;(2)choose to require a habitat assessment and mitigation
plan for development on a permit-by-permit basis;or(3)putting in place a prohibition on floodplain
development in the Special Flood Hazard Area(SFHA). Communities must pick a PICM pathway by
December 1,2024. If a community fails to inform FEMA of its selection,they will default to the
permit-by-permit PICM pathway. Communities will be required to report their floodplain
development activities to FEMA beginning in January of 2025.Failure to report may result in a
compliance visit.
13
Exhibit C
Lonergan
July 15 2024
Page 2
As a part of the PICM,FEMA will implement a delay in the processing of two types of Letters of
Map Changes in the Oregon NFIP-ESA Implementation Plan area, specifically Letters of Map
Changes associated with the placement of fill in the floodplain: Conditional Letter of Map Revision
Based on Fill(CLOMR-F)and Letter of Map Revision Based on Fill(LOMR-F)requests. This
action was specifically requested by NMFS in their 2016 Biological Opinion and serves to remove
any perceived programmatic incentive of using fill in the floodplain. This delay in processing will
begin on August 1,2024,and will be in place until the Final Implementation Plan is released.
Your community's ongoing participation in the NFIP is critical,as it provides access to flood
insurance for property owners,renters, and businesses. In City Of Woodburn there are currently 30 of
NFIP policies in force representing$8207000 in coverage for your community.
FEMA will be conducting informational virtual webinars this summer to provide an overview and
status update for the Oregon NFIP-ESA integration,introduce the Pre-Implementation Compliance
Measures, and provide an opportunity for Oregon NFIP floodplain managers to ask questions of
FEMA staff. In the fall, FEMA will hold workshops to provide in-depth opportunities for local
technical staff to work with FEMA technical staff, to understand and discuss issues relating to the
PICM.
The webinars will be held virtually over Zoom. The information at each webinar is the same so your
jurisdiction only needs to attend one.You can register for a webinar using the links below.
• Wednesday,July 31 at 3-5pm PT:kattp /ldr aaawr�t zoom u�/rn�r tun��/ i�t��./d�f Icr•-
mrnur stGdRTHhJocdi Ms...adSN k0h'
• Tuesday,August 13 at 9:30-11:30am PT: lhtt_s::/llcc aramswcst.7,00Tn aais/rnecti� /r pTM star/ff'Aod
.i sir"l<k Alt A1�;dY Kalu,k l f,E�l'eaxZuaraai4 v Ytrlti:;;1
• Thursday,August 15 at 2-4pm PT:
htt //ke,m�rn west.�oomc�i�.v.r /riucr,tnini /ire�Astca/tZ) ct1�1_tl o Ilt'I"5�aa946alazal _f. I'c 1n1EI A
• Wednesday, August 21 at 12:30-2:30pm PT:
Ilmtl. Z022vG0v9KrNzVf.11t F7AQ
y.
FEMA will also develop a questionnaire to allow communities to identify how they currently
incorporate or plan to incorporate ESA considerations, both in the short-term and long-term. To assist
communities in making this determination,FEMA will be offering guidance on the potential
pathways that help ensure current compliance. Communities will also be asked to help identify what
technical assistance and training would be most beneficial.Feedback from this questionnaire will
drive FEMA's engagement and outreach.
Upon completion of the Environmental Impact Statement review and determination, the Final
Implementation Plan will be distributed along with several guidance documents and a series of
Frequently Asked Questions.FEMA will also be starting NFIP Compliance Audits,in which we will
be reviewing permits issued by communities for development in the floodplain and will expect the
community to be able to demonstrate what actions are being taken to address ESA considerations.
If you have any questions,please contact us through our project email address k n i�i r f 0 iu 1 i!:
11, i T �� ,rm, Thank you for your community's on-going efforts to reduce flood risk in your
14
Exhibit C
Lonergan
July 15 2024
Page 3
community and for your support as we worked toward these milestones.
Sincerely,
f I
dz�4 lq�
Willie G. Nunn
Regional Administrator
FEMA Region 10
cc: Ch isKerr,City Of Woodburn
John Graves,Floodplain Management and Insurance Branch Chief
Deanna Wright,Oregon State National Flood Insurance Program Coordinator
Enclosure: Pre-Implementation Compliance Measures Fact Sheet
15
Exhibit C
Oregori Nafijon4l Flood hnsiiimtice, Prograrn Enciwigered ill e6es ,4,kct lintegration
Pre-Irnplementation Compliance Me es Overview
Beonning,this sumirner, FEMA will assist communities with
corning chainges to the National Floo Ilmmsurairnce Program(IN HP)
in Oregon.
W1,Yy are the chang Ireeedecl?
As the result of a Brollogu;W Orpinion tissuied by the INational
Maritle, Fisheries Service,commuriffiles are required to
dem floo on I dp ev lailin del opment!is co mpliant
w fth the Endangered Specres Act in,Special Flood Hazard
Areas. (�'hanges,are needed to protect the lidblitat of 1i i
several species of fish and the Southern IRes ident kil Iler, This Nahwel lit lood
whailes to comply wAh the Endangered Species Act(ESA) Pougmirinserws to,protect fives
FEMA autfined these changes in and propertywNe reducing
costs tatexpayers dueta
Gu then t status "00(fing toss.
FEMA m evWuating proposed ctiainges to the III
otitfined in the implemerwitation Plain through an
erivirorimental rinnipact statement(EIS),in conipliance with
ffie Natiorral Envirorimiental Policy Act(NEPA),
'WW i's 11*0"110'sjo? The Final III ni plementationi P111I is arnificlipated by 2026 fallowilig,
Any tWe velopment actli riesufflag the,Record of Decision in the EIS pfocess,then FEMA will fullily
in negative,frnpacts to one 01 Implement the plan in 20,27. Until then,commilunifies need
more key floodolafriturrefions to begin takirig,action to protect twabitat artd achreve 'no net
that are thell mifigated w Ilaass-"I is offering sevelrall resources for cominruraties
avolded to of fswt saild impacts. to learn more aind implemerlt niterim, rneasuires,cdlled Prey.
Implennentabon Compliance Measures(PICMs),
Notionie manne,Fisheries Tiniefine foieUpdafing the Or(-Fgon NR IP
SprVice iSSAMO 8 5qMP4W .......
Opinion on Me NFIP i0% 202 I-EWy 2022 5:FEW is draftAig wn EIS to slwjd�,V*effii Df
(Negon,a-,feqwiled 11,ttw, the,dr&n Implementation Pli
EftilailteRd Spe*fMArA
FEMA 11"'wCappea a Ba r r n m rlaw con rimand iswe oregon
0leP,Impleax ImpwMentation
DM
pionforwip- mar the Pre-WWAPmergsti oil PMl%
integrutim,
Compliance Wasure's
FEMIA. Ali.1,024, 1,
16
Exhibit C
What.cain coin-imunifies do to cornp with ffic-Se chaff nge!�?
Oregon communities,paiti6pating in the NRIP can take shoil-term measluresto comply wrth ESA
requirernents, knowin as PICMs,FEMA dervepoped these measures in response to conceirns frorn
communities alboutthe tinie arwd resources needed to rrveet requirernents and ensuire their future good
sto n,ding in the AFAR By iimpipamentung these measures now, comm unifties willi be Ibettaar Ilnrepnaured far
compliance ak,adft,which will begin when the Final Implementation PIlan is in Ipmllaacu.
Comimunities can s0ect one of the foll win g thtee PIICW
• Prohibft,dil new deyepopmefnt rn the floodplam.
• incorporate the ESA into locall ftoodplain ordiinances,
• Require pernift applicants to,develop are Floodplain Habitat Assessment documenting that thrir
piroposed deveiiopment iln the Speciall Flood Hazard Air ea wil1111 advieve"ito net loss,'
Communiffies rnust report to FEMA on their unplernentabon of interim measuires.
In addition'to the dbove measuries,as of August 1, 2024, FIEIMA ii, temporarily suspending processing
applications for Letters of Map Revisiwti bused on Fill (LOMR-Fa)as (,ondftional Le-Uers of Map
Rev isroni based on Fill(CLOIMR-Es)in NFIIIP communutues to avoid pioternhafty negetwer effects on ESA-
hated spe,6,es.
FED A is here to stipport your coirnilnun�ty.
FEMA is offering several resourcies to asatst+ mnrmmuiruta Vin preparing for the Oregoin iNFiP-ESA
Imirflemerdiation Plain
. Informational Webinars(Suninver 2014):Learn about what FEMA is doingto revise the
liniRlementation Plan and receive an introduction to the PICIMs.
. Questionnaire(Summer 2024).Share what floodipWri management Measures your cornimunity
is currentfy ompiementirtg to comply with the ESA,which PlICNis you're most irwterested 0�i,and
what suipiport you need.Your feedback wiH h0jp us plan tbe falill workshops and identify needs for
tectir0cdIl assistarwoe.
. Workshops(Fall 21024,):Get an m-depth Illolok at PIlCMs and to through questions ainid coinrerns
wilth FEMA staff.
. Technicall,Assils,tainee(Segins iin Fall 2024). Get support frorn FEIMA to begin imp lerneintin
MIMS.
Learn nwre mid parficipate,
VWtymmjwm,gWf 4nijuWaWA=ukuzV to it the latest
irddr mation isbo%d WIP-EISA,Integration,in Oregasm.
lebmi can u4so corytect us
fill#...J J J J J J J J J J J J
Lesin rinore at feina,gov hally 2024 2
17
Exhibit C
I rii ill I C,un,111::1,ered Speciesiii 1, i n
Pre-implementation Compliance Measures Basics
What are PICMs?
Pre-Implementation Compliance Measures,also known as
PICMS,are short-term measures that communities must
adopt to comply with Endangered Species Act(ESA)
requirements under the NFIP. FEMA has developed these
measures to address Reasonable and Prudent Alternative
(RPA) Element 2 (Interim Measures) in the 2016 National
Fisheries and Marine Services(NMFS) Biological Opinion
(BiOp).These interim measures are intended to occur as
the agency undertakes a National Environmental Policy
Act(NEPA) review to assess the effects of FEMA's What Is no not loss?
proposed NFIP-ESA integration efforts. Any development action resulting in
Under PICM,communities may select one of three negative impacts to one or more key
compliance measures: floodplain functions that are then
mitigated or avoided to offset said
1. Prohibit all new development in the floodplain; impacts.
2. Incorporate the ESA performance standards into
local floodplain ordinances through a model In other words:when developing in the
ordinance; or SFHA,all development actions must be
3. Require permit applications to develop a adequately avoided or mitigated to ensure
Floodplain Habitat Assessment documenting that that floodplain functions can operate at
their proposed development in the Special Flood the same capacity as before the
Hazard Area (SFHA)will achieve no net loss.
development action occurred.
No Net Loss focuses on the floodplain
Which communities in Oregon are subject to PI CM? functions of:
PICM,and future Oregon NFIP-ESA integration * Floodplain Storage
performance standards, apply to communities that are: • Water Quality
1. Located in the Oregon implementation area,as • Vegetation
specified by the 2016 NMFS BiOp;
2. Participating in the NFIP;and
3. Have a mapped SFHA
PICM standards and requirements only apply to areas
located within the SFHA.
FEMA
18
Exhibit C
The NFIP is a national program,why is only Oregon subject-to PICM?
NFIP-ESA integration is occurring in areas where FEMA has consulted with the US Fish and Wildlife
Service(USFWS)and NMFS. FEMA consulted with NMFS to address changes needed to the NFIP
program within Oregon's Columbia River drainage basin and Coast to better protect ESA-listed species
of salmonoids and southern resident killer whales within the area.
Other areas where consultations have occurred are in the Puget Sound of Washington,California, New
Mexico, and Florida.Other ESA-listed species may have their needs addressed in the future in other
parts of the country.
What authority allows FEMA to apply additional performance standards for No Net Loss?
Under 44 CFR 60.3(a)(2)a community must ensure that all other Federal,State and Local permits have
been obtained when they are permitting a project in the SFHA. As such a local community must ensure that
a "take permit" under section 10 of the ESA is not required.The NMFS Biological Opinion on the
implementation of the NFIP in Oregon has determined that developing a floodplain may affect the three key
floodplain functions and potentially cause take.
Therefore,a community must ensure that any project that has an adverse effect on those three functions
mitigates for the effect to a no net loss standard. FEMA has been authorized take under the RPAs in the
NMFS BiOp on the implementation of the NFIP in Oregon.A community participating in the NFIP can use the
NFIP take authorization for coverage as long as they are abiding by the NFIP-ESA performance standards.
A community also has the option of seeking their own take coverage for a project through another federal
nexus.They may also choose to develop a Habitat Conservation Plan for their floodplain development
program under section 10 of the ESA and obtain their own take permit.
Flow long is PICM supposed to last`
PICM is intended to address ESA compliance as interim measures while the agency undertakes a NEPA
review of FEMA's proposed NFIP-ESA integration efforts. PICM will be required for communities through the
remainder of the Environmental Impact Statement(EIS) process.Once the Record of Decision (ROD)for the
EIS is issued,and thus marking the end of the EIS process, PICM will no longer be required.The ROD is
expected to be issued in 2026.
When will PICM go into effect?
Communities must adopt and implement a PICM by December 1st,2024. If communities do not select a
PICM by this deadline,they will be defaulted to the Permit-by-Permit approach.Communities adopting the
model ordinance, must ensure the ordinance is adopted by their community by July 31st, 2025.As
communities work to adopt the ordinance,they will still be required to implement another PICM option
between December 1st, 2024 and July 31st, 2025.
u
Learn more and participate
Visit w_ww.ferna.ggv,.(abqunt&rg�nizakion_r gicn-10, e��egtrn fi -es�-intp ati�into access the model
,
ordinance,habitat assessment guide,and read the latest information about NFIP-ESA Integration in Oregon.
You can also;contact us at FE IAA R1O-Mif-MCM@fema dNi�.gav
19
Exhibit C
„.
,
�IurP ��i.��m III�M��:rlwlw��i.ru�u� �lll III Ill��i.,r �.� Illlui������ur��u����im III u� Ill��������ur����,��muim,i���, red :Species Ai�i ,t
Pre-implementation ISelection
Understanding your community's needs is essential to selecting a Pre-Implementation Compliance Measure
(PICM)suited to you.
Under PICM,communities may select one of three measures to ensure Endangered Species Act(ESA)
compliance:
• Prohibit all new development in the floodplain;
• Incorporate the ESA performance standards into local floodplain ordinances through the PICM Model
Ordinance;or
• Require permit applications to develop a Floodplain Habitat Assessment documenting that their
proposed development in the Special Flood Hazard Area (SFHA)will achieve no net loss.
PICM,and future Oregon NFIP-ESA integration performance standards apply to the following communities:
• Located within the NFIP-ESA implementation area;
• Participating in the NFIP;and
• Have a mapped Special Flood Hazard Area (SFHA)
Furthermore, portions of the community that do not fit the above criteria are not subject to PICM. PICM
standards and requirements do not extend beyond the SFHA.
Understanding the (PICM Op-bons
The 2016 National Marine Fisheries Service(NMFS)Biological Opinion (BiOp) identifies that FEMA's
interim compliance with the ESA must require communities to:
• Prohibit all NFIP-related actions in the SFHA;or
• Determine the presence of fish or critical habitat,assess permit applications for potential impacts to
species and habitat,and require that any action with potential adverse effects be fully mitigated with
no net loss of floodplain functions.
The PICM Model Ordinance and Permit-by-Permit approaches attempt to mitigate impacts of
development and ensure no net loss of floodplain functions.
Adoption of the PICM model floodplain ordinance by a community would ensure that development
meets ESA compliance as performance standards are built into the code.
A Permit-by-Permit approach would require development applications to analyze potential loss to
floodplain functions and propose mitigation that abides by the mitigation requirements outlined in the
habitat assessment guide and ensures no net loss of the impacted functions.
That is the main difference between the PICNI Model Ordinance and Per It-by-Permlt
approaches`
Both the PICM Model Ordinance and Permit-by-Permit approaches require a community to analyze and
determine the potential loss to three key floodplain functions(floodplain storage,water quality,and
vegetation)and required mitigation for any loss to those functions by using pre-determined ratios. Mitigation
ratios are provided to ensure that permitted development meets the No Net Loss standards without having
to do further analysis of mitigation options to comply with the ESA. For instance,the intrinsic habitat value of
a single tree at 6"diameter breast height(dbh)in the Riparian Buffer Zone(RBZ) has already been factored
into the ratios and requires a minimum of 3 trees to be planted to make up for the loss of habitat value at
the development site.
20
Exhibit C
Under the PICM Model Ordinance approach,compliance with NFIP-ESA integration standards for PICM are
built into the code and therefore, no separate process is needed to ensure compliance.The Permit-by-Permit
approach requires all new floodplain development analyze any negative impact to the floodplain functions
and identify and implement appropriate mitigation measures to ensure NFIP-ESA compliance.
Is it possible to adopt the PICM Model Ordinance but also allow For a Permit-by-Permit
approach for more complicated projects that do not necessarily fit into typical site
development type of processes?
Both approaches require new development to analyze and determine the potential loss to the floodplain
functions and mitigate for any loss to those functions at the required ratios specified in the PICM Model
Ordinance and Habitat Assessment Guide.As development would require the same mitigation,a Permit-by-
Permit approach and habitat assessment for a project would not be needed if a community has already
adopted the Model Ordinance.
Would prohibiting all new development in the SFHA prevent habitat:or floodplain
restoration projects from being implemented?
The 2016 NMFS BiOp did not carve out exceptions under Element 2 of the RPA when proposing to prohibit
all NFIP-related actions in the SFHA. However, FEMA would agree that restoration projects and a few other
activities could be exempt from this PICM option if the community is careful in how they word the prohibition
and exceptions.
How are communities expected to adopt a PICM?
Communities must use their locally adopted and required processes to ensure that they are able to legally
implement the chosen PICM option.
What is the Habitat Assessment Guide and when is it Bused?
The Habitat Assessment Guide is used under the Permit-by-Permit approach.The guide provides a
methodology to review and analyze potential loss to floodplain functions that a development might incur as
well as guidance surrounding mitigation required to ensure NFIP-ESA requirements under PICM.A
community may use this guide to review a submitted assessment for new development to ensure that the
methodology for evaluating impacts and proper mitigation to achieve no net loss is being met.
Can a community change PIO s during this process?
Communities can change PICMs throughout the process but are required to implement their current PICM
until their new measure is ready to be fully implemented.
How do communities make their selection known to FE A?
Communities can notify FEMA of their PICM selection through an email to the FEMA-RIO-MIT-PICM inbox.
Learn more and participate
visit uvww Ferrta gr�v abr��at�c�r anieatir n,frggicln:TQZgre crn�nP_ &Lsa-into rati(nto access the model
ordinance,habitat assessment guide,and read the latest information about NFIP-ESA Integration in Oregon.
You can also contact us at FERIA-R10-Mff N M@fema.dhs. y
21
Exhibit C
Species Ai
pe ie �lLi��I11 I uim l. M l�Li�!�!I,i ra I llI
111�°)I m
Pre-implementation I Timeline
What Is the timeline'ter Implementing PICM? 0""Under PICM,communities may select one of three
measures to ensure ESA compliance:
1. Prohibit all new development in the floodplain;
2. Incorporate the ESA performance standards into "
local floodplain ordinances through the PICM
Model Ordinance; or
3. Require permit applications to develop a PICM Reporting Requirements
Floodplain Habitat Assessment documenting that Beginning January 31st,2025,
their proposed development in the Special Flood communities will be required to collect
Hazard Area (SFHA)will achieve no net loss. data elements related to the Reasonable
and Prudent Alternative(RPA)5 in the
National Marine Fisheries Service(NMFS)
Communities must adopt and implement a PICM by 2016 Biological Opinion(BiOp).Collection
December 1st,2024,ensuring any changes needed to of these data elements is required on all
implement this option have already been made. newifloodplain development permits.
Communities that do not select a PICM by December 1st,
2024,will be defaulted to the Permit-by-Permit approach. Required data elements for reporting
Communities seeking to adopt performance standards include,but are not limited to:
Applicant,project title,project description;
into local floodplain ordinances through the PICM Model Project location and size of project in
Ordinance will have until July 31st,2025,to adopt SFHA,Riparian Buffer zone(RBZ),and
ordinances and make necessary changes. However,the Floodway;
community must still implement another PICM between * Amount of fill added and compensatory
December 1st and July 31s'to ensure ESA compliance in storage created;
the interim. 0Area of clearing and grading that occurred;
Acres''.disconnected and reconnected
Can communities request extensions? to/from the floodplain;
No, communities must meet the established December • Amount of new impervious surface added;
1s', 2024 deadline or default to a Permit-by-Permit Type and amount of water quality
mitigation provided;
approach. FEMA will work with communities to assess Number of trees removed and their size;
the status of the adoption and implementation of PICMs Number of trees planted.
leading up to the deadline.
Are projec'ts't at obtained a development permit Communities will report this data back to
be-fore December is' required -to meet PIC ? FEMA via reporting toolkit on an annual
basis,beginning January 31,2026
Existing projects with permits obtained before December
1st will not be subject to PICM. The reporting toolkit,when available,will
be downloadable from FEMA's website.
22
Exhibit
Are projects permitted be-fore PUCM implementation, but where constru,�don occurs after
PUCM begins, subjeutto PUCM?
FEMA encourages communities to follow local vesting laws.The agency's focus is on new permits and
applications after December Ist.Construction of projects that were permitted before this deadline can
continue asnormal.
What if community's adoption process timeline does not aUUovwustpmmeetthe December
Is'deadline of immp|emmen,fing a PUCM?
While FEMA recognizes that the time it takes to implement a PICIVI varies by community,there is still an
obligation to abide by ESA requirements. If a community cannot implement a PICM by the December Ist
deadline, FEMA will work with the community to consider alternative options to remain compliant with ESA
requirements in the interim.
How do communities make-their selection known -to FEMA?
Communities can notify FEMA of their PICM selection through an email to the FEMA-RIO-MIT-PICM inbox.
(FEK4A'r10'mit-piom@fomo.dhs.gov).
What penalties are communities looking at if they cannot meet-the December deadline?
Communities will default to the permit-by-permit option if no selection was given to FEMA by December Is'. If
FEMA does not hear from a community,the agency will contact them to identify what technical assistance is
needed to implement PICK If a community has no PICM implemented by July 31S1,2025, FEMA will
prioritize an audit of floodplain development activities that occurred in the community,specifically focused
on the PICIVI time-period to assess what has occurred and any mitigation that would have been required for
development that occurred.
Learn more and participate tion to access the reportingtool,
visit "endl—a
model ordinance,habitat assessment guide,and read the latest information about NFIP-ESA Integration in
You can also contact us at-FEM/k-RIO-M�T-.P�CM@fema.dii5,gQy
23
Exhibit C
u m III i I. ut iu�;�III III . IIII ur a ur ur m m u u u m iu III....ut u � urm , „ .S '! � " i I: Ill ui m i L, I:ui m
Pre-implementation Mitigation
Why is mitigation required?
Unlike ESA implementation in the Puget Sound of Washington,the 2016 National Marine Fisheries Service
(NMFS) Biological Opinion (BiOp)for Oregon allows for adverse effects to occur in the Special Flood Hazard
Area (SFHA),as long as they result in a no net loss of floodplain functions. No Net Loss allows for mitigation
and minimization of development and development-related impacts to occur in the SFHA, instead of just
avoidance.
Under No Net Loss,development actions can occur as long as adverse actions are mitigated so floodplain
functions can still operate at the same capacity as before the development action happened.Compliance of
No Net Loss standards is most commonly achieved through the use of mitigation ratios.
What are tlhe floodplain functions?
NMFS, in the 2016 BiOp, has identified three floodplain functions that must be mitigated when developing
in the SFHA to ensure ESA compliance:
• Floodplain Storage
• Water Quality
• Vegetation
To make mitigating for these three functions measurable, FEMA has identified proxies for each of the
functions that translate to potential development actions occurring in the floodplain.These proxies include:
• Undeveloped Space(Floodplain Storage)
• Pervious Surface(Water Quality)
• Trees(Vegetation)
PICM mitigation requirements include compensation for the loss of undeveloped space, pervious surface,
and the removal of trees on a development site.
a „
Floodplain Storage Undeveloped Space Developed Space
Water Quality Pervious Surfaces Impervious Surface
Vegetation Trees Trees Removed
Floodplain Functions,proxies,and actions mitigated against
Undeveloped Space
Undeveloped space is defined as the volume of flood capacity and fish-accessible(the ability of a fish to
access a space)and fish-egress-able(the ability of a fish to exit a space) habitat from the existing;round to
the Base Flood Elevation (BFE)that is undeveloped.
Any form of development that reduces this flood storage volume and fish accessible/egress-able habitat
must be mitigated to achieve no net loss. Examples of this development include, but are not limited to:
• Addition of fill • Pilings
• Structures
• Concrete structures(vaults or tanks)
24
Exhibit C
Mitigation is required for the volumetric space that occupies the area between the existing ground and BFE.
Proper mitigation includes creating an acceptable amount of undeveloped space between the existing ground
and BFE as determined by the mitigation ratios.
Fish accessibility and egress-ability is a key component of floodplain storage,as it ensures we are maintaining
habitat dynamics for ESA-listed species. Mitigating with ratios for undeveloped space will ensure you are also
accounting for fish accessibility and egress-ability.
Pervious and Impervious Surfaces
Pervious surfaces are surfaces that can be penetrated by water and help regulate the rate of surface water
runoff. Impervious surfaces are the opposite.They are surfaces that cannot be penetrated by water and
thereby increase surface water runoff, leading to erosion of stream banks,degradation of habitat,and
increased sediment loads in streams. Impervious surfaces also heat up water as it travels to the waterbody
and increase the overall temperature of the waterway.Additionally, impervious surfaces carry pollutants into
the waterbody that would have otherwise been filtered out by pervious surfaces.
In PICM,there are three options to mitigate against the addition of impervious surfaces:
• A replacement of the equivalent amount of area where impervious surfaces were added with pervious
surfaces;
• Development actions use documented low impact development or green infrastructure practices to
infiltrate and treat stormwater produced by the new impervious surface;or
• When the above two methods are not feasible, require professional stormwater retention to ensure no
increase in peak volume or flow and proper treatment to minimize pollutant loading.
Trees
Trees play a vital role in the ecosystem and habitat of salmon.They stabilize banks against erosion, provide
shade which regulates temperature for the waterbody, and creates habitat that attracts insects and other vital
food sources. Under PICM,each tree over 6"diameter breast height(dbh)that is removed in the SFHA, must
be replaced as identified by ratios.As larger trees provide a greater role in ecosystem services, more trees are
required to replace them.
Replacement trees must be native species that would occur naturally in the Level III ecoregion of the impact
area. Replacement trees are assumed to be saplings and younger trees.
The RBZ and Me
The Riparian Buffer Zone(RBZ) is an area of land bordering rivers,streams,and other water bodies that
provides an outsized role in supporting floodplain functions that affect ESA-listed species and essential fish
habitat(EFH).The RBZ serves as important habitat to fish during flooding events, providing refuge from high
velocity flows in the floodway.Vegetation attracts insects and other vital food sources,filters sediment and
pollutants from runoff,and moderates water temperature through the shade it provides,and stabilizes
eroding banks.
Under PICM, FEMA has established a 170-foot RBZ for use in the NFIP-ESA integration area.This 170-foot
standard is measured from the ordinary high-water mark of a fresh waterbody, or from the mean higher-high
water line of a marine shoreline or tidally influenced river reach.This distance generally equates to 80%of the
maximum potential tree height of common tree species in the implementation area.The RBZ does not extend
beyond the SFHA, meaning that the RBZ ends where the SFHA ends, if it is less than 170 feet.Communities,
otherwise, cannot reduce the 170-foot RBZ boundary during PICM.
Learn more at fema.gov September 2024 2
25
Exhibit C
IWWWW .w.w.
Manure 170-feet Inland-
---Measurel7Q-feaklnfand-----�" ����`1rr� :.
OrdlnaryHlghWatarMark �� Ordinary High Water Mark
up'
Measurfng the R[parfan RufferZone
The RBZ has additional requirements on top of achieving No Net Loss standards due to its outsized role in the
floodplain functions.The RBZ does not ban development.When developing,the RBZ requires a beneficial gain
standard in addition to No Net Loss to provide additional benefits with no negative components to ESA-listed
species and essential fish habitats.The beneficial gain standard is as follows:
• An area within the same reach of the project and equivalent to 5%of the total project area within the
RBZ shall be planted with native herbaceous and shrub vegetation.
Beneficial gain is required for development in the RBZ,with the following exceptions:
• Habitat restoration activities,
• Activities considered exempt from No Net Loss,
• Functionally dependent uses:A use which cannot perform its intended purpose unless it is located or
carried out in proximity to water.The term includes:
o Docking and port facilities that are necessary for the loading and unloading of cargo or
passengers;and
o Ship building and ship repair facilities.
o Functionally dependent uses do not include long-term storage, related manufacturing facilities,
or ancillary facilities such as restrooms.
Understandlng the NlIffigatlon Redo Table
Mitigation ratios are provided in PICM to ensure that permitted development meets the No Net Loss standards
without having to do further analysis of mitigation options to comply with the ESA. For instance,the intrinsic
habitat value of a single tree at 6"diameter breast height(dbh) in the Riparian Buffer Zone(RBZ) has already
been factored into the ratios and requires a minimum of 3 trees to be planted to make up for the loss of
habitat value at the development site.
Mitigation ratios to ensure ESA compliance vary based off location in the SFHA.The RBZ and Floodway play an
outsized role in supporting floodplain functions,therefore higher ratios for mitigation are required to negate
the impact of development. Development actions in the RBZ-fringe(the area outside of the RBZ but within the
rest of the SFHA) have a lesser impact on floodplain functions and therefore lower ratios can negate any
adverse impact.
Learn more at fema.gov September 2024 2
26
Exhibit C
Mitigation is preferred to occur within the same site as where the development impacts occur, but offsite
mitigation is possible at the same ratios if mitigation is happening in the same reach (the section of waterway
where similar hydrologic conditions exist). If mitigation needs to occur outside of the reach where
development is happening, ratio requirements are essentially doubled.
Mitigation ratio requirements are only necessary when development impacts are occurring in the SFHA. If
development is happening partially inside the SFHA, ratios and mitigation is only required for impacts within
the area.
Proposed Mitigation Patios to Achiei�,e No Net Loss tan tuts
Undeveloped Pervious Trees Trees Trees(39"<dbh)
Basic Miti ate Ratios Space ft3 Surface ftz 6"<dbh<20" 20"<dbh<39"
RBZ and Floodway 2:1 1:1 3:1 5:1 6:1
RBZ-Fringe 1.5:1 1:1 2:1 4:1 5:1
Mitigation multi liers
Mitigation onsite to 100% 100% 100% 100% 100%
Mitigation offsite,same
reach
Mitigation onsite to 00% 00% 200% 00% 200%
Mitigation offsite,
different reach,same
watershed(51n)
Cho communities have to mitigate for each floodplain function, or do they choose only one
of the functions to mitigate"?
Communities must mitigate for each impact to the floodplain function.
Can a community use one action to mitigate-ffor multiple functions?
Communities would need to ensure that each floodplain function is properly mitigated. In some instances,
one mitigation action can count towards mitigation of more than one floodplain function. For example,
removing a 200 ft2 structure could count towards both flood storage and water quality mitigation if the
action is creating both undeveloped space and pervious surface.
Who is responsible for measuring-the RBZ?
Communities are responsible for identifying the RBZ. FEMA will not identify them on Flood Insurance Rate
Maps(FIRM).
Why do co unities have to ensure ESA compliance in SFHAs that provide no-islh
accessibility"?
Even though there may not be essential fish habitat in an SFHA,development can still create indirect or
cumulative impacts that have an adverse effect on ESA-listed species and habitat downstream.
Learn more and participate
Visit w_ww.fema.9o�r.�bt-us/cr arrizatuoDZre ion-lQ re on nfi,p- a-inte station to access the model
ordinance,habitat assessment guide,and read the latest information about NFIP-ESA Integration in Oregon.
You can also contact us at FEMA—RIO-MVT'-.PICM@ferria.dNis ggv
Learn more at fema.gov September 2024 2
27
Exhibit C
� OREGON
n a Department of Land Conservation&Development
Frequently Asked Questions about Pre-
Implementation Compliance Measures
October 4,2024
Disclaimer:This FAQ is general guidance based on the information available to DLCD staff at this time. It
is not a DLCD decision. It is not legal advice for any specific situation. Cities and counties should consult
their legal counsel for advice on specific decisions.
Table of Contents
What are"Pre-Implementation Compliance Measures"?............................................................................ 1
Whatled up to PICM?................................................................................................................................... 2
What is the role of the Oregon Department of Land Conservation and Development in PICM?................ 2
What does a city or county need to do now?...............................................................................................3
Does Pathway 3 "Prohibit floodplain development" require a moratorium?..............................................3
Is a "Measure 56 Notice" required for PICM short-term options?...............................................................5
Will the state waive legislative adoption requirements?.............................................................................6
What if a city or county cannot complete the ordinance process by December 1, 2024? ..........................7
Is the model ordinance clear&objective?...................................................................................................7
What is changing for cities and counties for letters of map revision based on fill?.....................................7
Are there any Measure 49 implications to adopting the PICM model ordinance?......................................8
Where can I find additional information or ask questions about PICM? .....................................................9
What if a city or county received a PICM letter in error,or did not receive a PICM letter?....................... 10
What area does the BiOp cover?................................................................................................................ 10
What are "Pre-implementation ComplianceMeasures"?
In July 2024,the Federal Emergency Management Agency(FEMA)sent a letter to cities and counties in
Oregon instructing them to make short term changes to how the city or county regulates development
28
Exhibit C
in flood hazard areas. FEMA describes these short-term actions as"pre-implementation" because they
are occurring before FEMA fully implements long-term changes to the National Flood Insurance
Program(NFIP)to comply with the Endangered Species Act.
What led up to PICM?
In 2009,environmental advocacy organizations sued the Federal Emergency Management Agency
(FEMA) alleging that FEMA violated the Endangered Species Act by not consulting with National Marine
Fisheries Services(NMFS)about how the National Flood Insurance Program (NFIP) could jeopardize
threatened species. FEMA resolved the lawsuit by formally consulting with NMFS to review the impact
of the NFIP. In April 2016, NMFS issued its Biological Opinion (BiOp)that concludes that the NFIP in
Oregon jeopardizes the survival of several threatened species, including salmon,sturgeon,eulachon,
and orcas.The BiOp contained a reasonable and prudent alternative (RPA)with recommendations from
NMFS to FEMA on how to avoid jeopardizing the threatened species. In October 2021, FEMA issued a
draft implementation plan on how to reduce the negative impacts of the NFIP on threatened species.
In 2023, FEMA started reviewing the draft implementation plan using a National Environmental Policy
Act(NEPA) process,which is still underway. Under the NEPA process FEMA will analyze whether there
are additional alternatives or changes to the 2021 draft implementation plan to consider.
In September 2023,environmental advocacy organizations filed a lawsuit alleging that FEMA has been
too slow to implement the BiOp. Plaintiffs included the Center for Biological Diversity,the Northwest
Environmental Defense Center,Willamette Riverkeeper,and The Conservation Angler.See also
coverage in the Oregonian.
In July 2024, FEMA announced a new program of pre-implementation compliance measures (PICM or
short-term measures)for the Biop,separate from the NEPA full implementation (long-term measures)
process. FEMA hosted four PICM webinars in July and August, and is planning additional outreach to
assist NFIP communities in the fall of 2024.Some of the PICM pathways are included in the 2016 BiOp
under RPA,element 2.
FEMA now has two separate, but similar processes: NEPA evaluation of the full implementation plan,
and interim action through PICM. FEMA's webpage "Endangered Species Act Integration in Oregon"
contains information about both processes, but does not clearly distinguish between the two processes.
What is the role of the Oregon DepartmentLand Conservation and
Development in PIC ?
FEMA and the state provide funds to the Oregon Department of Land Conservation and Development
(DLCD)for staff to help cities and counties participate in the NFIP. DLCD floodplain staff do not set
program policies and cannot make decisions on behalf of FEMA.As FEMA provides more information
about what they are requiring through PICM, DLCD floodplain staff will try to explain the program to
cities and counties.
Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 2 1 P a g e
29
Exhibit C
While the floodplain staff at DLCD have a coordinating role communicating with FEMA, cities and
counties are always free to communicate directly with FEMA staff. In this role, DLCD staff provided
feedback on the full implementation plan (long-term measures)through the NEPA process. DLCD staff
provided information about how the land use planning system in Oregon would affect the full
implementation plan. DLCD did not have an opportunity to play a similar role while FEMA developed
PICM.
On September 26,2024, Governor Tina Kotek sent a letter to FEMA expressing concerns about PICM,
similar to concerns raised in a letter from members of congress in August. DLCD will work with FEMA to
address the governor's concerns.
What does a city or county need to do now?
FEMA is requiring cities and counties to select one of three PICM short-term paths by December 1,
2024:
• Pathway 1:Adopt the PICM model floodplain management ordinance that considers impacts to fish
habitat 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 using"Floodplain Habitat Assessment and Mitigation"guidance from FEMA.
• Pathway 3: Prohibit all new development in the floodplain.
FEMA is also requiring cities and counties to gather additional data on local floodplain permitting
starting January 31, 2025,and submit an annual report to FEMA starting January 2026.
If a city or county does not choose a PICM path by December 1, 2024,then FEMA expects the city or
county to use Pathway 2 for permit-by-permit habitat assessment and mitigation.
Once local planning staff review the FEMA documents(PICM model ordinance and habitat assessment
cane_), planning staff may want to discuss the PICM paths with other internal local staff, and their
local legal counsel.A starting point could be to determine how much developable land is within the
Special Floodplain Hazard Area (SFHA). With that data to inform local decision making,staff might want
to report to decision makers and the public explaining the situation and may find this FAQ useful as
background.An informational work-session could be helpful to explore options for what may or may not
work at the local level. DLCD staff(regional representatives and flood hazards staff) are available for
technical assistance; however, many questions will need to go to FEMA. Use the dedicated email
address: FEMA-RlO-MIT-PICM@fema.dhs.gov.
Does Pathway "Prohibit floodplain development" require a moratorium?
No.A city or county has at least two options for prohibiting development in the special flood hazard
area:temporary moratorium or permanent rezoning.
Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 3 1 P a g e
30
Exhibit C
Option A:Temporary Moratorium
ORS 197.520 to 197.540 defines a process for a city or county to declare a moratorium to temporarily
prevent all development in a specific area.Typically,a city or county would declare a moratorium where
there are insufficient public facilities,which would not apply in this case. ORS 197.520(3) allows a
different type of moratorium if a city or county demonstrates there is a compelling need based on the
findings below:
For urban or urbanizable land:
• That application of existing development ordinances or regulations and other applicable law is
inadequate to prevent irrevocable public harm from development in affected geographical areas;
• That the moratorium is sufficiently limited to ensure that a needed supply of affected housing types
and the supply of commercial and industrial facilities within or in proximity to the city or county are
not unreasonably restricted by the adoption of the moratorium;
• Stating the reasons alternative methods of achieving the objectives of the moratorium are
unsatisfactory;
• That the city or county has determined that the public harm which would be caused by failure to
impose a moratorium outweighs the adverse effects on other affected local governments,including
shifts in demand for housing or economic development, public facilities and services and buildable
lands,and the overall impact of the moratorium on population distribution; and
• That the city or county proposing the moratorium has determined that sufficient resources are
available to complete the development of needed interim or permanent changes in plans, regulations
or procedures within the period of effectiveness of the moratorium.
For rural land:
• That application of existing development ordinances or regulations and other applicable law is
inadequate to prevent irrevocable public harm from development in affected geographical areas;
• Stating the reasons alternative methods of achieving the objectives of the moratorium are
unsatisfactory;
• That the moratorium is sufficiently limited to ensure that lots or parcels outside the affected
geographical areas are not unreasonably restricted by the adoption of the moratorium; and
• That the city or county proposing the moratorium has developed a work plan and time schedule for
achieving the objectives of the moratorium.
Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 4 1 P a g e
31
Exhibit C
Moratoriums are legally complicated.This description is only a summary of the law.A city or county
should consult carefully with their legal counsel to determine whether and how a moratorium would
work in their specific situation, and to review the applicable timelines for which a moratorium may be in
place and circumstances for extending a moratorium.
Option B:Permanent Rezoning
A city or county could permanently rezone the land within the special flood hazard area to a zone that
would not permit development.This would not be appropriate for all cities and counties, but could be
appropriate if the area in the SFHA is relatively small, unlikely to develop,or publicly owned.
Is a "Measure 6Notice" required for PICM short-ter is?
Most likely yes, but cities and counties should consult with their legal counsel on how the notification
requirements apply in the specific local circumstances.
Background on Measure 56 Notices
Cities and counties in Oregon are required to send a notice to landowners before"rezoning" property.
This requirement was originally enacted through Ballot Measure 56 in 1998,and is codified in Ore on
Revised Statutes(ORS) 227.186 for cities and ORS 21S.S03 for counties.The requirement uses a broad
definition of rezoning that includes any change that "limits or prohibits land uses previously allowed."
DLCD maintains a we page on the landowner notification requirement.
Pathway 1—Model ordinance
Cities and counties staff should carefully review current zoning and development regulations for
property within the SFHA. If properties are zoned for open space or conservation,then the PICM model
ordinance might not further limit uses.
If properties are zoned for residential, commercial or industrial use,the PICM model ordinance would
likely limit those uses,and the Measure 56 notification requirement could apply. Most local floodplain
codes require owners to obtain a permit for development in the floodplain. Permit processing varies for
each city or county. Oregon's model floodplain Ordinance(version 2020) meets minimum NFIP
standards. However,the updated PICM model ordinance contains new standards in section 6.0
(highlighted in yellow)which could limit currently allowed uses, in which case the Measure S6
notification requirement would apply.
Pathway 2—Permit-by-permit habitat assessment and mitigation
Cities and counties should carefully review any existing requirements for habitat mitigation. Most cities
and counties do not require mitigation for habitat impacts,so the city or county would be adopting a
new ordinance to require assessment and mitigation for development in flood hazard areas.These new
development regulations would most likely limit currently allowed uses, and thus the Measure S6
notification requirement would apply.
Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 5 1 P a g e
32
Exhibit C
Pathway 3—Prohibit floodplain development
If a city or county declares a temporary moratorium under ORS 197.520 to 197.540,then the Measure
56 notification requirements would likely apply because a moratorium would limit or prohibit uses that
would otherwise be allowed.
If a city or county rezones land or amends development regulations to permanently prohibit
development within the SFHA,then the city or county should carefully review the previous zoning and
allowed uses for each parcel. If some properties were previously zoned for open space or conservation,
then the prohibition on development is not likely to be a limitation on future use. If some properties are
zoned for residential,commercial or industrial use,then the prohibition on development would limit
those uses,and thus the Measure 56 notification requirement would apply.
A city or county may not want to completely prohibit all development in the floodplain and may want to
think about explicitly adding in activities exempt from the no net loss standards as listed in section 6.3 of
the PICM Model Ordinance.Some of the exempt activities include normal maintenance of structures,
street repairs,habitat restoration activities, routine agricultural practices,and normal maintenance of
above ground utilities and would still require a local floodplain development permit. However, if a city
or county wishes to include activities beyond those listed in section 6.3,then the city or county will
likely need to adopt the model ordinance or require permit-by-permit habitat mitigation for the uses
that are still allowed. It may be simpler to choose pathway 1(model ordinance)or pathway 2(permit-
by-permit) instead.Cities and counties should communicate with FEMA about any exemptions.
Will the state waive legislative adoption requirements?
Each city or county has its own requirements for adopting an ordinance.The state has no authority to
waive those requirements.
ORS 197.610 through 197.625 requires cities and counties to submit notice to DLCD 35 days before the
first hearing to adopt a change to a comprehensive plan or a land use regulation.The statute does not
authorize DLCD to waive this requirement. If it is not possible to send the notice 35 days prior to the
hearing, cities and counties should send the notice as soon as possible.The notice can include a draft
ordinance that will be revised before adoption. If a city or county does not provide notice 35 days prior
to the hearing,this does not invalidate the ordinance.A party that did not appear before the local
government in the proceedings would be allowed to appeal the ordinance.
DLCD has no authority to waive the required Measure 56 notification to landowners that is described
above.
Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 6 1 P a g e
33
Exhibit
What if city or county cannot complete the ordinance process by December 1,
2024?
Start the process of evaluating the PICM pathways as soon as possible. Keep FEMA informed via their
P|C[Winbox regarding your P|[PW path and progress.
Send questions to FEMA early in the process to give them time to respond,and document when replies
are received.
Communicate often to FEMA to update them on your status and expected adoption date.
Is the model ordinance dear & objective?
Background un Clear and Objective Standards
Oregon Revised Statutes 29Zf .4J0requires cities and counties to:
"adopt and apply only clear and objective standards, conditions and procedures regulating the
development of housing, including needed housing,on land within an urban growth boundary."
[emphasis added.]
The legislature amended this statute to include areas within unincorporated communities and rural
residential zones.The amendment takes effect nn July 1, 2025.
Reviewing Model Ordinances
OLCD plans to review the existing Oregon Model Flood Hazard Ordinance to identify standards for
residential development that may not be clear and objective. Over the past year, DLCD also reviewed an
early draft of the model ordinance in the NEPA process for the full implementation of the BiOp. DLCD
identified several aspects of that early draft model ordinance that may not be clear and objective and
suggested that FEMA revise those aspects. DLCD has not yet determined whether the PICM Model
Ordinance has only clear and objective standards.
What is changing for cities and counties for letters of map revision based on fill?
FEMA has temporarily suspended processing of applications for letters of map revision based on fill
(LO[WR'F) andconditiona| |ettersufmaprevioiunbasedonfi|| (CLO[WR'F) asofAugust1,2O24. FE[WAis
doing this to remove any perceived incentive to using fill and to avoid potentially negative effects on
habitat for threatened species.
FEMA is not prohibiting fill in the SFHA, rather they are suspending the opportunity for owners or
developers to revise floodplain maps to be released from mandatory flood insurance.Therefore, if fill is
used for structure elevation and there is a federally backed mortgage on the property,flood insurance
will still be required. Cities and counties should continue to enforce their existing floodplain ordinance
on regulations regarding placement of fill in flood hazard areas.
Frequently Asked Questions about Pre-implementation Compliance Measures
October 4'2OZ4 7 1 Pa8e
34
Exhibit C
If an applicant asks for a community acknowledgement form (CAF)for a CLOMR-F or LOMR-F for a
project not covered in the exceptions below, it would be wise to contact FEMA before signing.
Exceptions for L/CLOMR-F processing:
• Projects that are undergoing Section 7 consultation via an alternative federal nexus
• LOMR-Fs for already processed CLOMR-Fs
• CLOMRs required for habitat restoration projects
What are the Measure 49 implications to the PICM pathways?
Measure 49 could apply in some situations, but it is unlikely that a city or county would have to pay
compensation to a landowner.Cities and counties should consult with their legal counsel to analyze their
specific situation.
Background:
Ballot Measure 49 was approved by Oregon voters in 2007. Its initial impact was on property owners
who acquired their property before land use regulations were established in the 1970's and 1980's. In
many cases,those owners were permitted to build up to three houses,even though the current zoning
would not allow new houses.
Measure 49 also applies to future changes in land use regulations.Those provisions are codified in ORS
195.300 to 195.336. If a state or local government enacts a land use regulation that restricts a
residential use and reduces the fair market value of a property,then the owner can apply for just
compensation.The compensation can be monetary,or a waiver to allow the owner to use the property
without applying the new land use regulation.This requirement does not apply if the new regulation is
for the protection of public health and safety.
Pathway 1—Model ordinance
If a property owner applied for just compensation as a result of a city or county adopting the PICM
model ordinance,the city or county would process the claim as provided in ORS 195.300 through 314.
This includes evaluating the claim to determine whether it is valid,and then deciding whether to waive
the regulation or pay monetary compensation.
First, determine whether the claimant owned the property before the city or county adopted the new
regulations in the model ordinance.
Next determine whether the new regulations restrict the use of the property for single-family dwellings.
The statute does not include a specific definition of"restrict" in this context. If the new ordinance has
the effect of completely prohibiting residential use,then it clearly restricts the use. If the new ordinance
allows single-family dwellings, but places design standards or conditions of development,these likely do
not restrict the use.
Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 8 1 P a g e
35
Exhibit C
Next, determine whether the regulations"restrict or prohibit activities for the protection of public
health and safety"as provided in ORS 19S.30S(3)(b). Many aspects of regulating floodplains are based
on safety; however, some of the regulations in the PICM model ordinance are based on improving fish
habitat.This could result in complicated analysis to determine whether the habitat requirements restrict
development beyond the restriction already created by regulations based on safety.
Next, review the property appraisals submitted by the claimant to determine whether the property
value was actually reduced. Property in a flood hazard area may already have a low value.The property
may still have value for agricultural use which would offset the loss due to the regulation.
If a property owner has a valid claim,then the city or county would decide to pay monetary
compensation or to waive some regulations.The city or county is not required to waive all regulations,
only"to the extent necessary to offset the reduction in the fair market value of the property"ORS
195.310(6)(b).The city or county could still apply regulations based on safety, and could still apply
regulations that existed prior to adopting the PICM model ordinance.
Pathway 2—Permit-by-permit habitat assessment and mitigation
The results would be similar to pathway 1. In most cases the habitat mitigation requirement would not
prevent development, and the owner would likely not be entitled to just compensation. If the habitat
mitigation requirements did prevent development,then the owner could apply for just compensation.
The city or county would use the steps described above to determine whether it is a valid claim,and
decide to waive some of the requirements, or pay monetary compensation.
Pathway 3—Prohibit floodplain development
A temporary moratorium would likely not lead to a claim forjust compensation because it is not a new
land use regulation.Also, a temporary moratorium is unlikely to significantly affect fair market value
because potential buyers know that the moratorium will end.
Rezoning to prohibit all development within the SFHA would likely be a basis for a claim for just
compensation,especially for a property entirely within the SFHA. If a property includes area inside and
outside the SFHA,and the owner could still develop the same number of dwellings in a different
location,then the owner would likely not be able to make a claim for just compensation.
The city or county would use the steps described above to determine whether it is a valid claim,and
decide to waive some of the requirements, or pay monetary compensation.
Where can I find additional information r ask questions about PICM?
FEMA has a webpage for Endangered Species Act Integration in Oregon. Email questions to the PICM
email address: FEMA-R10- IT-PICMtc�fema.dhseov.
Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 9 1 P a g e
36
Exhibit C
While DLCD staff are not responsible for PICM implementation,we are available to offer technical
assistance. Email or call Oregon's NFIP Coordinator at DLCD, Deanna Wright,
deanna.wright lcd.oregon.gov,971-718-7473.
What if s city or county received a PICM letter in error, or did not receive a PICIVI
letter?
Staff may contact FEMA's PICM inbox at: FEMA-RIO-MIT-PICM@fema.dhs.gov to receive the letter,or
you may contact DLCD staff. FEMA staff sent the email announcements to the city or county floodplain
staff and the letter was mailed to each individual city or county chief elected officer. If you believe your
community is outside of the BiOp action area (map instructions below), but you received a PICM letter,
please contact FEMA PICM inbox for verification.
What area doese BiOp cover?
Below is a snapshot image of the Oregon NFIP BiOp Action Area:
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Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 10 P a g e
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Exhibit C
The BiOp is applicable in Special Flood Hazard Areas(SFHA)within the mapped salmon recovery
domains for Oregon communities that participate in the NFIP.The BiOp covers approximately 90
percent of participating Oregon NFIP communities but does not apply to five counties.
NOAA Fisheries OIS mapping application tool
FEMA has published directions on how to determine if a proposed development or project area is within
the BiOp area.
Frequently Asked Questions about Pre-Implementation Compliance Measures
October 4,2024 111 Page
38
Exhibit C
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Exhibit C
COUNCIL BILL NO. 3277
RESOLUTION NO. 2249
A RESOLUTION INITIATING CONSIDERATION OF PROPOSED LEGISLATIVE AMENDMENTS
TO THE WOODBURN FLOOD PLAIN MANAGEMENT ORDINANCE AND WOODBURN
DEVELOPMENT ORDINANCE (WDO)
WHEREAS, the Woodburn Development Ordinance (WDO) establishes the
standards that development is required to meet; and
WHEREAS, the City also maintains a separate ordinance regulating and
constraining development and construction within the flood plain areas of
Woodburn; and
WHEREAS, periodic revisions and updates to the WDO are necessary and
expected to address current issues, revisions to statutes, and to remain consistent
with revised plans; and
WHEREAS, the Community Development Director has identified needed
modifications to the WDO and Flood Plain Management Ordinance necessary for
conformance with the Federal Emergency Management Agency's (FEMA) National
Flood Insurance Program (NFIP) - Endangered Species Act (ESA) Integration in
Oregon; and
WHEREAS, Section 4.10.09 of the WDO requires the City Council to initiate the
consideration of any potential legislative amendments to the WDO by resolution;
NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. Pursuant to Section 4.01.09A. of the WDO, the City Council initiates
consideration of legislative amendments to the WDO and Woodburn Flood Plain
Management Ordinance necessary for conformance with the Federal Emergency
Management Agency's (FEMA) National Flood Insurance Program (NFIP) -Endangered
Species Act (ESA) Integration in Oregon.
Approved as to form:
City Attorney Date
Approved:
Frank Lonergan, Mayor
Page 1 - Council Bill No. 3277
Resolution No. 2249
40
Exhibit C
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
Page 1 - Council Bill No. 3277
Resolution No. 2249
41