[Federal Register Volume 88, Number 43 (Monday, March 6, 2023)]
[Notices]
[Pages 13841-13844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04495]



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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2023-0007]


Notice of Intent To Prepare an Environmental Impact Statement for 
Oregon

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice of intent to prepare an Environmental Impact Statement; 
notice of public meetings; request for comments.

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SUMMARY: The Federal Emergency Management Agency (FEMA), as the lead 
agency, announces its intent to prepare an Environmental Impact 
Statement (EIS) for the implementation of the plan for National Flood 
Insurance Program (NFIP)--Endangered Species Act (ESA) Integration in 
Oregon. FEMA released a draft of this plan in October 2021. Notice is 
hereby given that the public scoping process has begun for the 
preparation of an EIS for the proposed action. The purpose of the 
scoping process is to solicit public comments regarding the range of 
issues, information, and analyses relevant to the proposed action, 
including potential environmental impacts and reasonable alternatives 
to address in the EIS. This notice also notifies the public that FEMA 
intends to host in-person and virtual public scoping meetings, host a 
web-based scoping room to provide additional information to the public, 
and solicit comments on potential issues, concerns, and reasonable 
alternatives that FEMA should consider. FEMA is preparing this EIS in 
compliance with the National Environmental Policy Act (NEPA) of 1969 
and the NEPA regulations implemented by the Council on Environmental 
Quality as of the date of this Notice.

DATES: Comments and related material must be received by FEMA on or 
before May 5, 2023. FEMA will hold at least two virtual public scoping 
meetings and at least two in-person public scoping meetings in Oregon 
at the times, dates, and locations listed on the project EIS website 
(see ADDRESSES section of this document). Reasonable accommodations are 
available for people with disabilities. To request a reasonable 
accommodation, contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section below as soon as possible. Last minute requests will be 
accepted but may not be possible to fulfill.

ADDRESSES: The project EIS website with the draft plan and public 
meeting information is at https://www.fema.gov/about/organization/region-10/oregon/nfip-esa-integration. You may provide oral or written 
comments at either the in-person or virtual public scoping meetings. 
You may also provide written comments via the Federal eRulemaking 
Portal at https://www.regulations.gov. Search for FEMA-2023-0007 and 
follow the instructions for submitting comments.
    All submissions must include the agency name and Docket ID for this 
notice. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to read the Privacy and Security notice, which can be viewed 
by clicking on the ``Privacy and Security Notice'' link on the homepage 
of www.regulations.gov. Commenters are encouraged to identify the 
number of the specific question or questions to which they are 
responding. For access to the docket and to read comments received by 
FEMA, go to https://www.regulations.gov and search for Docket ID FEMA-
2023-0007.

FOR FURTHER INFORMATION CONTACT: Ms. Science Kilner, Regional 
Environmental Officer, FEMA Region 10, [email protected], 425-487-4713, or visit the EIS website (see 
ADDRESSES above).

SUPPLEMENTARY INFORMATION: FEMA administers the National Flood 
Insurance Program (NFIP), a nationwide program that reduces future 
flood damage by requiring minimum floodplain management standards and 
provides protection for property owners against potential flood losses 
through insurance. The NFIP was established by the United States 
Congress in 1968 with the passage of the National Flood Insurance Act 
(NFIA). This law mandated that FEMA identify the nation's flood-prone 
areas and make insurance available to participating communities (local, 
tribal, and state governments) that implement floodplain management 
requirements that meet or exceed the minimum standards of the program. 
The NFIP is the primary source of flood insurance coverage for 
residential properties in the United States.
    The NFIP also engages in many ``noninsurance'' activities to serve 
the public interest. These include identifying and mapping flood 
hazards, disseminating flood-risk information through flood maps, and 
setting minimum floodplain management standards for community 
participation. The NFIP contributes to community resilience by setting 
minimum standards and offering incentive programs such as the Community 
Rating System (CRS). Through the CRS, communities are credited for 
activities that exceed FEMA's minimum NFIP requirements and further 
reduce flood risk.
    Participation in the NFIP is voluntary but necessary for 
communities to obtain access to NFIP flood insurance. This insurance is 
designed to protect against the risk of flood losses, thus reducing the 
escalating costs of repairing damage to buildings and their contents 
caused by floods. FEMA sets the minimum standards for participating 
communities through regulation for participants, although communities 
may adopt stricter standards. Participating communities are responsible 
for adoption and enforcement of the floodplain management standards. 
However, FEMA may place communities on probation or suspend them if 
they fail to adopt or enforce the minimum standards. (44 CFR 59.22(a-
b)). If communities do not remedy the issue, they may be removed from 
the program. (44 CFR 59.22(c)).
    As a Federal agency, FEMA must consider whether NFIP activities 
affect listed threatened or endangered species protected by the 
Endangered Species Act (ESA). Under Section 7 of the ESA, FEMA is 
required to consult with the U.S. Fish and Wildlife Service (USFWS) 
and/or the National Marine Fisheries Service (NMFS) (collectively ``the 
Services'') when any action the agency carries out, funds, or 
authorizes may affect a listed endangered or threatened species or 
adversely modify the designated critical habitat of such species. A 
lawsuit brought against FEMA in 2009 by Portland Audubon Society, et 
al., sought to highlight the agency's failure to consult with the 
Services on the implementation of the NFIP in Oregon. A settlement 
agreement was reached in 2010, and FEMA initiated informal consultation 
with NMFS soon after. In July 2011, FEMA initiated formal consultation 
with the submittal of a Programmatic Biological Assessment on the NFIP 
for Oregon state listed species and critical habitat.
    As a condition of the settlement agreement, FEMA consulted on NFIP 
minimum floodplain management criteria within Oregon, mapping 
activities, and implementation of the CRS, and implemented changes to 
the Conditional Letter of Map Change (CLOMC) application process. In 
July 2011, FEMA initiated formal consultation with the submittal of a

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Programmatic Biological Assessment on the NFIP for Oregon state listed 
species and critical habitat.
    On April 4, 2016, NMFS completed its analysis of the effects of the 
NFIP on species listed as threatened or endangered under the ESA and 
issued a Biological Opinion (BiOp) titled, ``Endangered Species Act 
(ESA) Section 7(a)(2) Jeopardy and Destruction or Adverse Modification 
of Critical Habitat Biological Opinion and Section 7(a)(2) `Not Likely 
to Adversely Affect' Determination for the Implementation of the 
National Flood Insurance Program in the State of Oregon. NMFS 
Consultation Number NWR-2011-3197.''

Proposed Action Area

    The proposed action area includes any part of Oregon within the six 
NOAA Salmon and Steelhead Recovery Domains that is in a current or 
future mapped special flood hazard area (SFHA) in a community that is 
participating or may participate in the NFIP.
    Oregon and any counties, incorporated municipalities, and tribal 
governments within the proposed action area will potentially be 
affected by the proposed action. All Oregon counties are within the 
boundaries of the proposed action area, with the exception of Baker, 
Harney, Klamath, Lake and Malheur Counties.
    The proposed action area is defined by the boundaries of six NOAA 
Salmon and Steelhead Recovery Domains within Oregon: Oregon Coast, 
Southern Oregon/Northern California Coast, Willamette River, Lower 
Columbia River, Middle Columbia River, and Snake River. NOAA has mapped 
these Recovery Domains at https://www.webapps.nwfsc.noaa.gov/portal/home/webmap/viewer.html.
    Within these recovery domains, the proposed action applies to 
communities that are participating in the NFIP. However, since 
participation is voluntary and a community may join or leave the 
program, this EIS applies to both current and future NFIP communities. 
Information about the NFIP in Oregon is available through the Oregon 
Department of Land Conservation and Development at https://www.oregon.gov/lcd/NH/Pages/NFIP.aspx.
    For a proposed development activity to be subject to the new 
requirements, it must be proposed in a location subject to the minimum 
standards of the NFIP, which means that, at the time the activity is 
proposed, it is (1) within the geographic jurisdiction of a community 
that participates in the NFIP, and (2) it is within the mapped special 
flood hazard area (SFHA). To determine if a property is in the current 
effective SFHA, access the FEMA Flood Map Service Center at https://msc.fema.gov/portal/home.
    The proposed action, best available data on flood risk, and climate 
change may add to or alter the mapped special flood hazard areas (SFHA) 
and require local land regulations adopt additional performance 
standards to protect threatened or endangered species. Therefore, any 
development activity within the proposed action area may be subject to 
new requirements resulting from the proposed action.

Purpose and Need for the Proposed Action

    In the BiOp, NMFS concluded that the current implementation of the 
NFIP in Oregon is likely to jeopardize the continued existence of 16 
anadromous fish species and the Southern Resident Killer Whale, all of 
which are listed as threatened or endangered under the ESA, and result 
in the destruction or adverse modification of designated or proposed 
critical habitat for the 16 anadromous fish species. NMFS's conclusion 
establishes the need for the proposed action.
    Federal regulation, at 50 CFR 402.14(h), requires NMFS to include 
Reasonable and Prudent Alternatives (RPA) in a jeopardy BiOp. NMFS 
proposed alternative approaches to NFIP performance standards that, 
according to NMFS, when implemented would avoid continued jeopardy for 
the listed species and habitat described in the BiOp. Based on the BiOp 
and NMFS's recommendations in the RPA, and pursuant to Section 7(a)(2) 
of the ESA, FEMA must make several changes to how the NFIP is 
implemented in parts of Oregon.
    Therefore, the purpose of the proposed action is to implement 
changes to the administration of the NFIP that align closely to the 
recommendations in NMFS's BiOp in the proposed action area. The 
recommended changes are designed to avoid jeopardy to the ESA-listed 
species and critical habitats described in the BiOp, while also 
maintaining consistency with FEMA's existing NFIP statutory and 
regulatory authorities and the program's objectives. Proposed changes 
must be practicable and implementable by the NFIP-participating 
communities.
    The proposed changes recommended in the BiOp include: (1) 
information changes provided by FEMA to Oregon NFIP-participating 
communities, (2) changes to mapping products, and (3) reporting 
requirements for these communities. FEMA must also ensure that NFIP-
participating communities within the proposed action area adopt 
measures needed to avoid continued jeopardy and/or adverse habitat 
modification and collectively meet a standard of ``no net loss'' for 
three key natural floodplain functions essential to the survival of the 
ESA-listed species identified in the Oregon NFIP BiOp.
    The Oregon NFIP BiOp and its RPA do not directly require any action 
of state, local, or tribal governments participating in the NFIP 
because the consultation on NFIP impacts to ESA-listed species occurred 
between FEMA and NMFS. FEMA does not have authority in local land use 
decisions or to regulate floodplain development. However, for 
communities to participate in the NFIP, they must adopt the minimum 
performance standards for the program in their local land use 
regulations. The ultimate authority to regulate development--including 
the provision and approval of permits, inspection of property, and 
citing violations--is granted to communities by the states. State and 
local governments, through their planning, zoning, and building code 
enabling authorities, make the determination of how a property must be 
developed.

Proposed Action and Alternatives

    As a result of the RPAs, FEMA must implement the NFIP such that its 
influence over the individual floodplain development actions permitted 
by local and tribal governments participating in the program does not 
jeopardize ESA-listed species and their critical habitat. FEMA 
determined the best approach to meeting the intent of the RPA was to 
develop an Implementation Plan outlining the actions the agency will 
take to ensure its implementation of the NFIP in Oregon is compliant 
with the ESA going forward.
    The proposed action that FEMA will evaluate in the EIS is the 
execution of the Oregon Implementation Plan for NFIP-ESA Integration. A 
copy of the draft plan is available on the project EIS website (see the 
ADDRESSES section of this document). The draft plan comprises changes 
to information provided to communities, mapping products, and reporting 
requirements for NFIP-participating communities; as well as a range of 
potential measures communities will need to select from to collectively 
meet a ``no net loss'' standard of key natural floodplain functions 
essential to the survival of the ESA-listed species identified in the 
Oregon NFIP BiOp.

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    In 2016-2017, FEMA asked the Oregon Department of Land Conservation 
and Development (DLCD) to help identify any potential challenges with 
the NMFS approach to implementation outlined in the BiOp (the 
``reasonable and prudent alternative''). DLCD convened a set of 
stakeholder work groups to help identify barriers and to propose 
alternative approaches. In 2020-2021, the Oregon NFIP Implementation 
Planning Group, informed by the DLCD stakeholder work groups, held a 
series of workshops that culminated with the draft Implementation Plan 
that FEMA is now analyzing under NEPA. The proposed action is the 
outcome of this multi-year process.
    In the EIS, FEMA will analyze a No-Action Alternative, under which 
FEMA will not implement any changes to the NFIP in Oregon. This 
alternative, required by the NEPA Implementing Regulations, would not 
fulfill the purpose and need.
    The draft Implementation Plan identifies four paths that 
communities can take: model ordinance, ordinance checklist, approved 
community compliance plan, and ESA Section 10 Habitat Conservation Plan 
or ESA Section 4(d) Limit 12. These paths are not NEPA alternatives. 
All four constitute FEMA's preferred alternative, as described in the 
draft Implementation Plan. A community may choose a single path for 
their entire jurisdiction or different paths in different parts of the 
jurisdiction. As each path leads to the same performance standard--no 
net loss of three key natural floodplain functions--each path will 
constrain development in the floodplain and require appropriate 
mitigation for loss of natural floodplain function. Therefore, the 
impacts to resources analyzed in this EIS will not likely depend on the 
specific path.
    The RPA and 2021 draft Implementation Plan identified some elements 
for future FEMA decision. This EIS will discuss the options for these 
elements; the final EIS will consolidate those elements into the final 
preferred alternative. These implementation options are not NEPA 
alternatives by themselves because they cannot stand alone and fulfill 
the purpose and need.
    FEMA will also analyze other reasonable alternatives to the 
proposed action identified during the scoping period. Reasonable 
alternatives must fulfil the purpose and need and may include 
additional or alternative avoidance, minimization, and mitigation 
measures that achieve the no-net loss of floodplain function 
performance standard.

Summary of Expected Impacts

    The proposed action is to ensure that NFIP-participating 
communities within the BiOp Action Area adopt measures to collectively 
meet a standard of ``no net loss'' for key natural floodplain functions 
essential to the survival of the ESA-listed species identified in the 
Oregon NFIP BiOp. These functions, as defined in the 2021 draft 
Implementation Plan, are: flood storage, water quality, and riparian 
vegetation.
    In accordance with 40 CFR 1508.1(g), the draft EIS will identify 
the effects of the proposed action and the alternatives. The 
regulations define effects to include ecological effects (such as the 
effects on natural resources and on the components, structures, and 
functioning of affected ecosystems), aesthetic, historic, cultural, 
economic, social, or health. Effects may be direct, indirect, or 
cumulative. Effects may also be beneficial or detrimental. As discussed 
in the Comments section below, submission of public comments, research, 
studies, and data on these impacts are crucial to FEMA's development of 
a comprehensive draft EIS.
    Based on the Oregon NFIP BiOp, the DLCD stakeholder work groups, 
and the Oregon NIFIP Implementation Planning Group process, FEMA 
initially expects the proposed action to benefit natural floodplain 
functions, threatened and endangered species habitat, and essential 
fish habitat. FEMA also initially expects the proposed action to 
potentially significantly impact communities, individuals, and 
businesses that intend on developing in the floodplain. FEMA 
anticipates that there may be adverse indirect impacts to community 
land use planning, economics, social structures, development plans, 
minority, low-income populations, Tribes, infrastructure, agriculture, 
aquaculture, energy production and transmission, and transportation.
    At the end of the NEPA process, FEMA will issue a Record of 
Decision (ROD) identifying the environmentally preferable alternative 
(40 CFR 1505.2). FEMA will discuss preferences among alternatives based 
on economic, technical, and biological factors, and its statutory 
mission. FEMA will also explain how it considered these and other 
factors in making a final decision.

Anticipated Permits and Other Authorizations

    For communities to participate in the NFIP, they must adopt the 
minimum performance standards into their local land use regulations. 
Therefore, FEMA can implement the proposed Implementation Plan, make 
changes in mapping products, reporting requirements, and minimum 
standards without permits or other authorizations.
    However, communities will have to individually decide whether to 
(1) participate in or withdraw from the NFIP, and (2) if they choose to 
participate, determine which path(s) they will take to ensure that 
their individual floodplain development actions as influenced by the 
NFIP do not further jeopardize ESA-listed species and their designated 
critical habitats. FEMA cannot require a community to pursue a 
particular pathway for ESA compliance.
    Pursuant to 44 CFR 60.3(a)(2), a community must obtain and maintain 
documentation of compliance with the appropriate Federal or state laws. 
Therefore, each individual project proponent (homeowner or other 
developer) is responsible for securing applicable local, state, and 
Federal permits.

Schedule for the Decision-Making Process

    After the scoping period, FEMA will prepare a draft EIS and file it 
with the Environmental Protection Agency (EPA). EPA will publish a 
notice of availability (NOA) and announce a minimum 45-day public 
comment period. After the public comment period ends, FEMA will review 
and respond to the comments received and develop the final EIS. A ROD 
will be completed no sooner than 30 days after the final EIS is 
released, in accordance with 40 CFR 1506.11.
    FEMA currently expects to make the draft EIS available to the 
public in late 2023. In accordance with 40 CFR 1501.10, FEMA 
anticipates that the agency will publish both the draft and final EIS 
and sign the ROD within two years from the issuance of this notice.

Public Scoping Process, Including Scoping Meetings

    This NEPA scoping process is in addition to previous opportunities 
available to the public to understand and influence FEMA's draft 
Implementation Plan.
    The purpose of the EIS scoping process is to gather input on the 
issues, concerns, possible alternatives, and potential significant 
impacts to the quality of the human environment that FEMA should 
consider in the EIS. Participants are anticipated to include, and are 
not limited to, agencies (Federal, state, county, and local),

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Tribes, public interest groups, nongovernmental organizations, 
businesses, trade associations, and individual members of the public.
    As described under the DATES section of this notice, FEMA is 
facilitating virtual and in-person meetings as well as a virtual 
scoping room to accommodate and encourage public participation. At 
these meetings, the public will have the opportunity to present 
comments on the scope of the EIS. FEMA representatives will be 
available to answer questions and provide additional information to 
meeting attendees. In addition to providing comments at the public 
scoping meetings, stakeholders may submit written comments as described 
in the ADDRESSES section. Comments may be broad in nature or restricted 
to specific areas of concern, but they should be directly relevant to 
the NEPA process or potential environmental impacts as described in the 
Comments section below.

Comments

    FEMA is seeking input on relevant information, studies, or analyses 
of any kind concerning impacts that result from the proposed action or 
alternatives. Specifically:
    1. Potential effects (adverse or beneficial) that the proposed 
action could have on biological resources, including species and their 
habitat.
    2. Potential effects that the proposed action could have on 
physical resources and natural floodplain functions.
    3. Potential effects that the proposed action could have on 
socioeconomics, including demographics, employment, economics, 
minority, low-income populations, and Tribes, land use, zoning, 
housing, commerce, transportation, community growth, and community 
infrastructure.
    4. Other possible reasonable alternatives to the proposed action 
that FEMA should consider, including additional or alternative 
avoidance, minimization, and mitigation measures that achieve the 
performance standard of no-net loss of three key natural floodplain 
functions.
    FEMA regulation, at 40 CFR 1502.17, requires that FEMA append to 
the draft EIS or otherwise publish all comments received during the 
scoping process that identifies alternatives, information, and analysis 
for FEMA's consideration. FEMA respects each commentor's desire to 
withhold sensitive information (such as the costs associated with 
development in the floodplain) but, at the same time, recognizes that 
one set of impacts that may be associated with the implementation of 
the draft plan is the economic, social, and equity burden that 
individuals, businesses, and communities may face.
    To promote informed decision-making, comments should be as specific 
as possible and should provide as much detail as necessary to 
meaningfully and fully inform FEMA of the commenter's position. 
Comments should explain why the issues raised are important to the 
consideration of potential environmental impacts and possible 
alternatives to the proposed action as well as to economic, employment, 
and other impacts affecting the quality of the human environment.
    Authority: 42 U.S.C. 4321, et seq., and 40 CFR 1501.9.

Deanne B. Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2023-04495 Filed 3-3-23; 8:45 am]
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