Species ruling could slow development along Nooksack

| THE BELLINGHAM HERALD FILE

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 insurance program.

The fisheries service has even 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.

"It takes the National Flood Insurance Program in a whole new direction," said Rollin Harper, city planner for Everson, where half the town of 2,200 is within the floodplain of the Nooksack River.

Washington state and local officials were dissecting the 240-page opinion, trying to figure out what might be required, and are expected to meet with FEMA officials in Olympia this week.

Planners in larger jurisdictions like Pierce, Thurston and Whatcom counties said they already had tougher environmental restrictions on the books than those required by the federal insurance program and didn't expect a huge impact on future development.

Paula Cooper, Whatcom County's flood control engineering manager, said "there is a range of ways this could play out. It will start slow. But this is the first step in making people look at this."

In Thurston County, Joe Butler, senior plans examiner, said, "This isn't a big deal for us at all. But a lot of jurisdictions across the county could be hamstrung by this."

Such state laws as the Growth Management Act have required both large and small jurisdictions to adopt the tougher floodplain regulations. But officials in the smaller towns, like Harper in Everson, were still concerned about changes in the federal rules.

"When I read this I was thinking, wow, this will be huge," said Ken Wolfe, the building official for Orting, a town of 6,000 or so in the shadow of Mount Rainier. "It gets tough for small communities to keep in compliance with all the federal and state regulations, but we have to keep up."

Orting is bordered by the Carbon and Puyallup rivers, and Wolfe estimated that between 70 percent and 80 percent of the town is in a floodplain.

POPULATION IN FLOODPLAIN UNKNOWN

To those who live along the Nooksack, Skagit, Snohomish, Cedar, Green, Carbon, White, Puyallup and other rivers flowing out of the Cascades, flooding can be a way of life.

As the warm rains of another Pineapple Express from the tropical Pacific melt early snowfall in the Cascades, the rivers turn angry, overflowing their banks, forcing evacuations, damaging homes and businesses, disrupting lives.

No one knows exactly how many Washington state residents live in the floodplains. While it is thought to be fewer than 10 percent of the state's population, that still could be hundreds of thousands of people. Nearly 300 communities in Washington state have adopted the national flood insurance program's minimum standards.

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 do not cover flood damage, yet mortgage lenders require flood insurance when loaning on a house in a floodplain. The national program underwrites the insurance offered by private insurers.

FEMA requires local communities adopt floodplain construction standards before it will underwrite flood policies.

In its opinion, the National Marine Fisheries Service said those standards were too weak. It said continued development in the floodplains "jeopardized the continued existence" of the salmon, steelhead and killer whales.

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 is a food staple for killer whales.

The river floodplains provide not just critical spawning habitat but natural shade, cover and forage for juvenile salmon before they head downstream and eventually to the ocean.

The opinion said southern Puget Sound has been especially "hard hit" by major flood plain modifications, including levees and fill. It singled out the Puyallup River as one of the most "extreme" examples in the region.

RULING RECOMMENDATIONS

In addition to suggesting a temporary construction moratorium, the opinion 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 need flood insurance and which don't. FEMA is slowly revising the maps for the state, and there have been some major changes. About 10 percent of the town of Fife was in a floodplain in FEMA's original map for the area. With the latest maps, about 80 percent of the town will be in the floodplain.

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, vice president of government affairs for the Washington Association of Realtors, warned that not only might FEMA further restrict growth in floodplains, it could become more difficult to sell an existing home in these areas because flood insurance for the purchaser may be hard to find or exorbitantly 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.

"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."

Over the next 30 days FEMA officials will work with local communities to determine an implementation plan.

Brian Gorman, a spokesman for the fisheries service in Seattle, declined to answer when asked whether the opinion would set a precedent.

"It's a question you should ask others," he said, adding he was "reasonably confident" his agency will be sued by environmentalists and builders. "The courts will likely have to sort this out."

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