The National Flood Insurance Program was created by Congress in 1968 to offer subsidized insurance to property owners and businesses located in areas prone to flooding.
Now, as part of a legal settlement, the agency that administers the flood insurance program is proposing stricter rules meant to discourage development in salmon habitat in Oregon.
But many property owners – and local governments – say the rules are regulatory overreach. And, in a case with national implications, the city of Coos Bay, Oregon, is suing to get them overturned.
The city of Coos Bay hugs the shore of the estuary formed where the Coos River flows to the Pacific Ocean on Oregon’s south coast. And whether it’s rain-swollen rivers or extreme high tides, Coos Bay is vulnerable to rising water. Coos Bay City Manager Roger Craddock ...
“Most of it was infill from the early 1900s, late 1800s. So all of it falls within the Hundred Year flood plain.”
And, he says, being right on the water means extra hoops to jump through, especially under Oregon’s comprehensive statewide planning rules.
“There are a lot of regulations that come into play when we do building, and of course regulations are designed to ensure that building is done correctly, safely, for not only now but in the future,” he says.
But Craddock and other Coos Bay officials say a new set of rules from the Federal Emergency Management Agency is going too far. Cities that fail to follow those rules could become ineligible for federally subsidized flood insurance. And Roger Craddock says that would jack up the costs of building in those areas.
“We’re concerned right now that the additional regulations that are being proposed through FEMA will severely hurt our economic development opportunities within Coos Bay,” he says.
The new rules are about threatened salmon. In 2009, several Oregon environmental groups sued FEMA, saying the flood insurance program violated the Endangered Species Act by facilitating development in flood plains that are critical salmon habitat. FEMA settled that suit by promising to consult with NOAA Fisheries, the federal agency which does oversee recovery of listed salmon and steelhead stocks.
That consultation led to proposed rules that will make it harder to build in flood-prone areas. NOAA Fisheries says the rules will protect 16 species of threatened or endangered fish by requiring that any development in flood plains doesn’t impair the ecological functions that fish rely on.
And the environmentalists who got this ball rolling in the first place say that’s how it ought to be. Bob Sallinger is with the Audubon Society of Portland, one of the original plaintiffs in the 2009 lawsuit.
“These are areas that flood that are very important to the survival of salmon,” he says. “And by subsidizing insurance that allows development in these flood plains, it’s harming salmon. It’s basically destroying their habitat that they need to recover.”
Sallinger points out that the new rules grandfather in existing buildings and that they don’t prohibit all new development, either.
“What these regulations will do is force people to update their maps, think more carefully when they develop whether that’s really the place they want to do it, and if they do do it, they’re going to have to mitigate in different ways to compensate for the environmental impact,” he says.
That could mean replacing removed trees or reducing paved surfaces that don’t allow water to soak into the soil. And, Sallinger says, climate change is only going to make flooding more likely in the future.
But for attorney Damien Schiff, all that’s pretty much beside the point.
“Our legal objection to this is that it’s really beyond the authority of FEMA to begin with,” he says.
Schiff works for the Pacific Legal Foundation, a conservative public interest law firm based in Sacramento. Schiff is representing the City of Coos Bay in a lawsuit challenging the new flood insurance rules.
“The Endangered Species Act only says that if you have authority to control development, then you have an obligation to ensure that you don’t approve development that may have an adverse impact on endangered species,” he says. “The problem here, though, is that FEMA doesn’t have any legal authority to say yea or nay to any development.”
Schiff says that means NOAA Fisheries doesn’t have the legal authority to add endangered species rules to FEMA’s flood insurance program. Meanwhile, as the Coos Bay lawsuit goes through the courts, FEMA is moving ahead with developing the new floodplain rules for Oregon. Coos Bay is in Representative Peter DeFazio’s congressional district and the 16-term Democrat has been pressuring FEMA to back off.
But unless Congress passes a law that explicitly de-couples the Endangered Species Act and the National Flood Insurance Program – or the Coos Bay lawsuit succeeds – some version of those rules will eventually be put in place in flood-prone areas nationwide.