WASHINGTON — A ruling that development along dozens of rivers flowing from the Cascade Mountains to Washington state's Puget Sound jeopardizes endangered salmon, steelhead and killer whales could shape future construction in floodplains nationwide.
At the heart of the issue is the National Flood Insurance Program, which for 40 years has regulated river corridor development but paid scant attention to endangered species. That could change.
The "jeopardy opinion" from the National Marine Fisheries Service in Seattle, coupled with an injunction blocking development in Florida that threatens the habitat of the endangered Key Deer, may force major changes in the federal flood insurance program.
The fisheries service has suggested a temporary moratorium on building in floodplains surrounding Puget Sound. The timeout would allow the Federal Emergency Management Agency, which administers the flood insurance program, along with state and local jurisdictions, to sort out what, if any, new building restrictions may be required.
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"It takes the National Flood Insurance Program in a whole new direction," said Rollin Harper, a city planner for Everson in northwest Washington, where half the town of 2,200 is within the floodplain of the Nooksack River.
Nationwide, 5 million people in 20,200 communities have flood insurance policies. Since 1978, the policies have paid out $31.6 billion in claims.
Most homeowners' policies don't cover flood damage, yet mortgage lenders require flood insurance when loaning for purchases of house in floodplains. The national program underwrites the policies offered by private insurers.
FEMA requires local communities to adopt floodplain construction standards before it will underwrite flood policies.
In its opinion, the National Marine Fisheries Service said that those standards are too weak. It said continued development in the floodplains "jeopardized the continued existence" of the salmon, steelhead and killer whales, or orcas.
The opinion involved Puget Sound Chinook salmon, Puget Sound steelhead, Hood Canal chum salmon and the population of 100 or so orcas that roam the inland waters. Salmon are a staple source of food for killer whales.
The river floodplains provide not just critical spawning habitat but also natural shade, cover and forage for juvenile salmon before they head downstream to the ocean.
In addition to suggesting a temporary construction moratorium, the opinion also recommended a series of "reasonable and prudent" alternatives, including buffer zones, naturalizing levees and mitigating the effects of development by restoring other habitats.
The opinion also called for FEMA to take into account the endangered salmon and killer whales in mapping the state's floodplains. The maps are critical in deciding which areas require flood insurance and which don't.
The fisheries service admitted in its opinion that after adopting the new standards "the rate of floodplain development is expected to slow in all National Flood Insurance Program jurisdictions."
National and local builders and real estate interests are worried.
"This opinion essentially makes FEMA a super land-use zoning board," said Duane Desiderio, a vice president for the National Association of Homebuilders.
Bill Riley, the vice president of government affairs for the Washington Association of Realtors, warned that not only might FEMA further restrict growth in floodplains, it also could become more difficult to sell an existing home in these areas because purchasers may find flood insurance hard to obtain or expensive.
"This will cause a lot of uncertainties, and counties and cities could be risking lawsuits," Riley said.
Environmentalists forced the issue by successfully asking a judge to order a review of the flood insurance program. But they say they hope to avoid further litigation.
"We hope this doesn't end up back in court," said John Kostyack of the National Wildlife Federation. "FEMA has now been told the only way to avoid jeopardizing endangered species is by rewriting the regulations. We can't pave over the last remaining habitat and shouldn't be using federal dollars to do it."
FEMA officials declined to comment. During the next 30 days, FEMA officials will work with local communities to determine an implementation plan.
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