Flood insurance suit reaches court [Skagit Valley Herald, Mount Vernon, Wash.]

March 22--A judge will hear arguments next week on whether to prevent the federal government from issuing flood insurance policies for new construction in flood-prone areas, including urban areas in Skagit County.

The lawsuit, filed in U.S. District Court last year by the National Wildlife Federation against the Federal Emergency Management Agency, asks the court for a preliminary injunction on issuing flood insurance to new developments. Oral arguments on the motion for a preliminary injunction will be heard Tuesday morning by Seattle Judge Ricardo Martinez.

If FEMA cannot insure new developments, that would effectively halt growth in some areas, such as most of the city of Burlington and parts of Mount Vernon.

The National Wildlife Federation contends that FEMA has failed to properly implement a 2008 National Marine Fisheries Service directive to change development standards in flood plains, called the biological opinion. The standards change was designed to help endangered species, including orca whales and the salmon they feed on. The National Wildlife Federation, represented by Earthjustice, says FEMA's implementation of the biological opinion falls short.

Rogerson said the wildlife federation's evidence fails to recognize "existing conditions" in the flood plains throughout the state.

"The fact of the matter is, much of the areas that are currently existing in the flood plains are already urban and already developed," Rogerson said. "They fail to provide any example of one development that occurred that had a jeopardy effect on endangered species."

Burlington City Attorney Scott Thomas said the biological opinion standard assumed a pristine flood plain condition that typically doesn't exist.

"Seventy percent of the flood plains are in urban areas or heavily modified agricultural areas," he said earlier this month. "They don't operate in a pristine environment. Burlington is a perfect example of that."

But Jan Hasselman, attorney with Earthjustice, said the biological opinion says that most habitat is already degraded, and it's why salmon are "at risk of extinction."

"We are quite confident that the science is on our side," Hasselman said, adding that the lawsuit is intended to enforce the biological opinion.

About 120 cities throughout Puget Sound have been asked by FEMA to file plans with the agency to show how they would comply with the opinion. But Hasselman called the procedure an "undefined and voluntary directive."

Rogerson said that cities already have the tools, through various state mandates like the Growth Management Act, to comply with the biological opinion.

"If (the judge) grants a preliminary injunction, it could preclude any more flood insurance policies from being issued," Thomas said.

Other cities in the Puget Sound region that have joined the lawsuit in addition to Burlington and Mount Vernon are: Arlington, Auburn, Everett, Federal Way, Kent, Lake Forest Park, North Bend, Orting, Port Angeles, Puyallup, Renton, Snoqualmie, Sultan and Tukwila. A group of property developers has also joined the case to defend FEMA.

Kate Martin can be reached at 360-416-2145 or [email protected]. Follow her on Twitter at www.twitter.com/gov_svh.

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