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Conservation groups step into flood plain lawsuit

Claim industry would reverse gains
By Edward Stratton

The Daily Astorian

Published on February 6, 2018 8:26AM

Last changed on February 6, 2018 9:29AM

Warrenton is part of a lawsuit challenging federal flood plain rules.

Alex Pajunas/The Daily Astorian

Warrenton is part of a lawsuit challenging federal flood plain rules.

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Several conservation groups are intervening in a lawsuit brought by a coalition of construction interests, property owners and local governments against the federal government over flood plain development rules.

The Oregon Home Builders Association, the National Association of Home Builders and Washington, D.C.-based nonprofit Oregonians for Floodplain Protection filed suit last year against the U.S. Department of Commerce, National Marine Fisheries Service and Federal Emergency Management Agency. Oregonians for Floodplain Protection includes property owners, homebuilders, business organizations and local governments covered by the National Flood Insurance Program, including Warrenton and Tillamook County.

The plaintiffs claim a biological opinion from 2016 and proposed flood plain rules are based on inadequate analysis, would restrict development and have bypassed the public rule-making process. They seek a withdrawal of the opinion and to suspend implementation of the new flood plain rules until after a public rule-making process and a review under the National Environmental Policy Act.

The judge in the case recently approved a motion by the Audubon Society of Portland, Center for Biological Diversity and Defenders of Wildlife to participate in the case.

“If successful, the industry lawsuit … would reverse years of effort in Oregon to reform the taxpayer-subsidized National Flood Insurance Program administered by” FEMA, the conservation groups said in a joint release. “The flood insurance program places people, communities and wildlife at unnecessary risk by encouraging development in flood-prone areas by providing taxpayer subsidies for insurance coverage that private companies generally see as too risky.”

FEMA administers the National Flood Insurance Program, providing coverage in flood-prone areas to more than 250 cities and counties in exchange for their adopting flood plain development regulations. About 5 million homes in the U.S. are covered by the program.

The Audubon Society of Portland and several other conservation groups sued the agency in 2009, claiming the flood insurance program endangered the habitat of salmon, steelhead and southern resident killer whales protected under the Endangered Species Act. A settlement required FEMA to consult with the fisheries service and propose changes to better protect endangered species and their habitat.

A biological opinion issued in 2016 included several proposed changes including limiting development in flood- and erosion-prone areas, further protecting salmon-bearing surface waters from development, enhancing mapping and identification of flood- and erosion-prone areas, using local governments to help track flood plain development and enhancing enforcement.

Oregonians for Floodplain Protection contend the biological opinion violates both the Endangered Species Act and the Administrative Procedure Act, and is therefore unlawful. The agencies being sued have asked that the case be thrown out, arguing the complaints are premature because the agencies have not yet taken any action to determine whether they’ve caused the alleged harm. FEMA predicts that a final implementation plan will not be adopted until at least August.


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