Battle over building in Puget Sound flood plains

SEATTLE — A national environmental group asked a federal judge on Tuesday to temporarily stop the federal government from issuing flood insurance policies for new development in certain flood-prone areas around Puget Sound.

The National Wildlife Federation alleges that the Federal Emergency Management Agency hasn’t made changes to its flood insurance program in Puget Sound, as federal fisheries experts had called for three years ago, and that the program continues to harm endangered salmon and orcas.

Attorney Jan Hasselman asked U.S. District Judge Ricardo Martinez to issue a preliminary injunction that would effectively block new development in important habitat areas in about 70 river valley communities in Puget Sound, where building harms imperiled salmon and orcas.

In 2008, government fisheries experts with the National Marine Fisheries Service concluded that FEMA’s flood insurance program encourages destructive construction in floodplains and harms critical salmon habitat. The agency outlined a series of reforms that FEMA should undertake to avoid violating the Endangered Species Act.

“The evidence in this case shows they (FEMA) haven’t made those changes,” said Hasselman, an attorney with the public-interest law firm Earthjustice representing the federation. “It’s time to take a time-out on new insurance policies,” he added.

FEMA is the major underwriter of flood policies in the U.S., with about 42,000 policies in Puget Sound. It provides flood insurance generally not available on the private market.

An attorney for FEMA said the agency has made numerous changes to its program in Puget Sound and has complied with the reforms fisheries experts outlined in 2008.

“To suggest FEMA is sitting on its heels … I couldn’t disagree more,” said Ethan Eddy, a U.S. Department of Justice attorney.

The federation hasn’t shown that the flood insurance program in its current form is causing irreparable harm to endangered Puget Sound fish and other species, Eddy added.

A group of 16 local cities, including Port Angeles, Everett, Burlington, Puyallup and Renton, have intervened in the case, as well as the group Property Owners for Sensible Floodplain Regulation.

Attorney Bob Sterbank, representing the cities, said cities are ensuring that building does not harm endangered species and gave examples of some that have adopted it into local codes.

Construction in floodplain reduces the landscape’s ability to absorb and store water, filter stormwater runoff, and provide wildlife habitat, fisheries experts said. Placing fill to elevate homes from danger, for example, destroys habitat for young fish, while dredging channels increases water flow that makes it hard for fish to swim.

In 2003, the wildlife federation sued FEMA in Seattle over its failure to determine how the flood program affected endangered species. A federal judge agreed that the agency had allowed thousands of buildings without considering how they would hurt federally-protected fish and other species.

That led the fisheries service to conclude in 2008 that FEMA’s activities lead to floodplain development, some of which harms salmon habitat.

In response, FEMA drafted new rules for about 122 communities in Puget Sound, including the counties of Whatcom, Skagit, King, Kitsap, Pierce, Snohomish, Jefferson, Clallam and Thurston as well as large and small cities in those counties. The environmental group sought an injunction that would apply to the most critical habitat, affecting about 70 communities.

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