Home Builders Say Oregon Floodplain Plan is a Federal Overreach

WASHINGTON (CN) – Home builders and property owners in Oregon  claim in court that federal regulators exceeded their authority when they imposed new land-use restrictions under the guise of a federal floodplain insurance program.

In a federal complaint filed June 15 in Washington, plaintiffs Oregonians for Floodplain Protection, Oregon Home Builders Association and National Association of Home Builders say officials with the National Marine Fisheries Service erred in issuing an opinion that held the implementation of the National Flood Insurance Program in Oregon could lead to the disappearance of 16 already-threatened fish species and place killer whales living off the state’s coast at a heightened level of risk.

The plaintiffs say the regulators came to this conclusion “without adequate analysis or support,” and the opinion, and proposed changes to the flood insurance program will subject them to new development restrictions that will stymie both job creation and economic growth, and violate their property rights.

Nearly 300 Oregon communities depend on the National Flood Insurance Program to provide flood insurance.

In 2009, environmentalists sued the Federal Emergency Management Agency, which oversees the program, claiming in federal court that the agency failed to ensure the flood insurance program complies with the Endangered Species Act.

The action resulted in a settlement agreement which required FEMA to consult with the National Marine Fisheries Services on a biological opinion that took into consideration the requirements of the Endangered Species Act.

The settlement also required the federal agencies to propose any changes to the program needed to avoid risks to endangered species and protect their critical habitat.

But the plaintiffs say that effort resulted in restrictions that “will undermine that land use system, forcing urban development to expand into areas that have been recognized and preserved as a combination of rural and resource lands, including agricultural lands and forestry lands.”

“This will upset the careful system that the State of Oregon and its local jurisdictions have worked diligently to develop and maintain to balance beneficial use and preservation of Oregon’s lands,” the plaintiffs claim.

They contend the restrictions will disrupt decades-old development patterns and “threaten to force revisions to the existing boundaries between urban and rural/resource lands that are fundamental to Oregon’s land use system, reduce their tax bases, expose them to financial liability to property owners, and limit development of properties owned by the jurisdictions within the floodplain.”

They’re also worried if they refuse to comply with the rules, they’ll default on their federally-backed mortgages.

Molly Lawrence, of Van Ness Feldman in Washington, is representing the plaintiffs.

She said that not only did regulators not comply with the Endangered Species Act when they drafted their biological opinion, but they came to the wrong conclusions.

She also said the plaintiffs believe FEMA violated the National Environmental Policy Act by not allowing for more public input on the revised insurance program plan before rolling it out.

“The basis of our lawsuit is that they did a haphazard job of the analyzing the effects of the floodplain program in Oregon, particularly that they misconstrued what FEMA’s role is,” Lawrence said. “They attribute all floodplain development to the Flood Insurance Program and they don’t look at the current conditions of the floodplain. They assume the flood plain is in a natural, untouched condition.”

“A biological opinion needs to look at what the current state is of the subject and what are the negative effects,” Lawrence added.

She said the case has national implications because the agencies intend to enact the measures crafted in Oregon coast-to-coast.

“I think this is NMFS trying to dictate the terms and regulations of local governments for what our otherwise purely local floodplain development permits,” Lawrence said.

Jennie Lyons, a spokeswoman for the National Marine Fisheries Services said the agency does not comment on ongoing litigation.

The other defendants, FEMA and the U.S. Commerce Department, did not respond to a request for comment.

Plaintiffs seek a declaration that the biological opinion violates the Endangered Species Act and the Administrative Procedure Act and is therefore unlawful.

Oregonians for Floodplain Protection is a D.C.-based non-profit whose purpose is “to support and advocate for sustainable floodplain development policies,” according to the complaint.

The non-profit is comprised of national and local industry trade associations, Oregon property owners, and NFIP-participating jurisdictions in Oregon. The group says its members have been adversely affected by the Biological Opinion and FEMA’s RPA implementation.

The National Association of Home Builders “is a federation of more than 700 state and local associations, including those in Oregon, and represents more than 140,000 members, including homebuilders and remodelers, as well as industry members working in sales and marketing, housing finance, and manufacturing and supplying building materials. NAHB’s members construct about 80 percent of the new homes built in the United States, both single-family and multifamily.”

The Oregon Home Builders Association serves the home building industry in Oregon.

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