Judge dismisses lawsuit over flood plain rules

A coalition that fought new flood plain rules suffered a setback in federal court.

A federal judge has dismissed a lawsuit brought by developers against the federal government over proposed flood plain rules.

Oregonians for Floodplain Protection, a development coalition including building trade groups, Realtors, farmers, landowners and local governments, sued the U.S. Department of Commerce, National Marine Fisheries Service and Federal Emergency Management Agency last year. Warrenton, which is contending with flood-control issues, joined the lawsuit.

Lawyers for the coalition argued that flood plain rules proposed by the agencies are based on inadequate analysis, would restrict development and have bypassed the public rule-making process.

Federal officials argued the lawsuit was premature, lacking jurisdiction and should be dismissed because they have not implemented the rules.

U.S. District Judge Richard Leon sided with the federal agencies’ argument that no agency action had been taken regarding the alternative flood plain rules aside from sending notice letters to communities served by the flood insurance program.

“The bottom line is thus clear: plaintiffs have not alleged to date any ongoing, concrete injury arising from FEMA’s implementation of the” alternative flood plain rules, Leon wrote in his ruling.

A report finding no significant impact from the alternatives would need to be issued to constitute final action by FEMA and is not expected until next year, Leon wrote.

“I know that we are very disappointed by the court’s ruling and believe that the court misunderstood key components of our arguments,” said Molly Lawrence, a lawyer for the coalition. “That said, we were relieved by the court’s conclusion that FEMA has not yet taken any action to implement any of the substantive provisions” of the flood plain rules.

No decision has been made yet on whether the coalition will appeal the judge’s ruling, she said.

The coalition’s lawsuit arose from another filed against FEMA by environmental groups in 2009 over the National Flood Insurance Program, which provides coverage to more than 250 cities and counties in exchange for their adopting flood plain regulations. The groups claimed the flood insurance program damaged the habitat of federally endangered salmon, steelhead and southern resident killer whales.

A settlement required FEMA to consult with the fisheries service and create alternative practices for the flood insurance program to better protect endangered species. In a 2016 biological opinion, the fisheries service proposed alternatives to 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 to track flood plain development and enhance enforcement.

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