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Feds call flood plain lawsuit premature

Warrenton among the plaintiffs
By Edward Stratton

The Daily Astorian

Published on September 11, 2017 4:10PM

Last changed on September 12, 2017 9:14AM

The federal government is arguing that a lawsuit by Warrenton and others over a biological opinion and proposed flood plain rules is premature.

Edward Stratton/The Daily Astorian

The federal government is arguing that a lawsuit by Warrenton and others over a biological opinion and proposed flood plain rules is premature.

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The federal government is asking that a lawsuit brought by an Oregon coalition over proposed flood plain rules be thrown out as premature and lacking jurisdiction.

The U.S. Department of Commerce, National Marine Fisheries Service and Federal Emergency Management Agency were sued in U.S. District Court over the summer by Oregonians for Floodplain Protection. The coalition includes trade groups representing homebuilders, Realtors, farmers and the construction industry, along with individual landowners and several county and city governments, including Warrenton.

Warrenton Mayor Henry Balensifer said the city felt the need to have its voice heard. The city paid $500 to be a part of the coalition but is not helping fund the lawsuit.

The coalition’s lawsuit stems from a biological opinion issued last year by the fisheries service, which administers the Endangered Species Act.

FEMA, which administers the National Flood Insurance Program to more than 250 cities and counties in exchange for their adopting flood plain regulations, was sued by environmental groups in 2009. The groups claimed the flood insurance program endangered the habitat of endangered salmon, steelhead and southern resident killer whales.

A settlement required FEMA to consult with the fisheries service on alternative practices to bring the flood insurance program in line, and to propose changes to better protect endangered species and their habitat. The proposed alternatives would limit development in flood- and erosion-prone areas, further protect salmon-bearing surface waters from development, enhance mapping and identification of flood- and erosion-prone areas, use local governmental help track flood plain development and enhance enforcement.

Lawyers for Oregonians for Floodplain Protection argue the biological opinion and proposed flood plain rules are based on inadequate analysis, would restrict development and have bypassed the public rule-making process. Their lawsuit seeks an injunction against the fisheries service to withdraw the opinion and suspend implementation of the alternatives until after a public rule-making process and a review under the National Environmental Policy Act.

Lawyers for the agencies argue that the plaintiffs lack sufficient facts to determine whether the government’s actions have caused the alleged harm, and thus lack standing for a lawsuit.

“Plaintiffs’ claims against FEMA must also be dismissed based on principles of ripeness and finality as FEMA has not undertaken a final agency action nor committed to a major federal action,” the response said.



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