Judge: Flood-plain policy ignores impact on salmon

By Craig Welch
Seattle Times staff reporter

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The Federal Emergency Management Agency wrongly let tens of thousands of new building developments spring up on some of the region's most flood-prone property without considering the impact to threatened Puget Sound salmon runs, a federal judge has ruled.

In the half-decade since Puget Sound chinook were listed for protection, FEMA, the agency that offers insurance to landowners who build in flood plains provided they meet baseline rules to reduce the risk of floods, never consulted with salmon experts at other agencies as required by law, U.S. District Court Judge Thomas Zilly ruled this week in Seattle.

Instead, FEMA actually encouraged the destruction of salmon habitat by letting landowners avoid regulation if they built within flood plains, Zilly wrote in the decision made public yesterday.

Zilly ordered FEMA to have its program reviewed by biologists at NOAA Fisheries and then respond to him within 60 days. Officials with the agency declined to comment.

Scientists and environmentalists have complained for years that filling or building in flood plains near rivers from the Nisqually to the Stillaguamish can destroy the stream-side channels that fish flee to when trying to escape rushing flood waters. Constructing streets and parking lots in flood-prone areas also increases the amount of pollution that drains into salmon-bearing streams after heavy rains.

Fish enhancement and flood-risk reduction often are in conflict, Zilly wrote. FEMA actually rewards through its rate structure, for example, activities detrimental to fish habitat by encouraging levees, berms and floodwalls.

While it's not clear whether flood-plain development jeopardizes the government's overall ability to bring back ailing fish runs, "all of our major river systems have places where development has been a problem for chinook," said DeeAnn Kirkpatrick, a fish-habitat biologist with NOAA Fisheries in Seattle.

And in the first three years after chinook were first protected in 1999 under the Endangered Species Act (ESA), FEMA provided 26,000 new flood-insurance policies for structures within the fish's habitat, according to court records.

"The whole point of salmon listings was that we were going to have to change the way we do business," said Jan Hasselman, an attorney with the National Wildlife Federation who sued FEMA on behalf of environmentalists. "But FEMA was AWOL; they kept authorizing more and more development."
 
Officially, counties regulate flood-plain development. But in order for landowners to get flood insurance, those regulations must meet minimum requirements established by FEMA. Most counties in Puget Sound have development rules that are even more strict. FEMA rewards them with reduced insurance rates.

The ruling won't affect landowners with existing flood insurance, and the judge did not halt the issuance of new flood insurance while the agencies review the program. But environmentalists argued it could change the way flood areas are developed in the future on waterways here and across the country.

Meanwhile, developers who intervened on the government's behalf in the case were relieved that the judge didn't go even further.

"We were concerned that there might essentially be a moratorium on any development in any flood plain where there are listed fish [under the ESA]," said Duane Desiderio, vice president for legal services with the National Association of Homebuilders.

"We fully understand that we need to build responsibly. Our concern was that they sought an out-and-outright building ban."

Desiderio said Zilly made clear that he still thinks flood plains can accommodate development. But Desiderio also said he expects another potential legal battle with environmentalists over the scope of Zilly's ruling.

Craig Welch: 206-464-2093 or cwelch@seattletimes.com