Lawsuit: Flood insurance rules subvert Oregon farmland protections

A group of local governments in Oregon are seeking a preliminary injunction against new national flood insurance restrictions, alleging they'll subvert the state's farmland protections.

The Federal Emergency Management Agency's new flood insurance directives exceed its authority and constitutional limits, according to the Oregonians for Floodplain Protection nonprofit.

The organization represents Clatsop, Columbia and Tillamook counties as well as other communities and individuals who want to protect "the environment and the land use system developed in Oregon over the last 40 years."

The flood insurance restrictions "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," the group's complaint said.

The nonprofit is asking a federal judge in Washington, D.C., to issue a court order blocking FEMA from enforcing the regulations, claiming local communities will suffer "irreparable harm" because they can't comply with both the federal directives and state land use rules - potentially causing their residents to lose flood insurance.

Representatives of FEMA and the U.S. Department of Commerce, which is also named as a defendant in the lawsuit, did not respond to requests for comment.

FEMA settlement

The controversy stems from a legal settlement that environmental advocates struck with FEMA 15 years ago, requiring the agency to examine the national flood insurance program's effects on salmon, steelhead and killer whales protected under the Endangered Species Act.

To discourage housing construction and other development that degrades stream habitat and water quality, federal biologists recommended the insurance program incorporate measures to protect floodplains in 2016.

The plaintiff alleges this "biological opinion" suffers from serious deficiencies by attributing all floodplain development to the national flood insurance program, or NFIP, even though some has occurred without such assistance.

"The biological opinion fails to take into consideration the existing conditions in Oregon's floodplains, including existing developed and degraded conditions; fails to differentiate between the effects of development of unaltered areas as compared to the effects of redevelopment of previously developed areas; and fails to identify areas of development that occurred prior to the implementation of the NFIP and prior to the initiation of the subject ESA consultation," the complaint said.

The lawsuit claims that FEMA began implementing floodplain restrictions last year without properly analyzing their impacts as required by the National Environmental Policy Act.

The federal law governing the insurance program doesn't authorize FEMA to adopt measures intended to help threatened and endangered species, as it's limited to flood damage prevention, according to the complaint.

Under the agency's new regulations, communities that participate in the insurance program must prohibit development within "riparian buffer zones." In other cases, they must require mitigation to ensure "no net loss" occurs to floodplains.

Plaintiffs' case

The plaintiff alleges these and other measures will effectively dictate how Oregon communities can develop, disrupting the state's land use system.

"Limitations on development within floodplains may redirect development to other areas, namely on lands outside of the mapped floodplain," the lawsuit said. "Both the restrictions on development within the floodplain and potential inducement to development outside the floodplain will have impacts on the natural and human environment."

Aside from endangering the ability of landowners to obtain flood insurance, these and other restrictions will render the development of their properties "cost-prohibitive or infeasible" despite the state's housing shortages, the plaintiff claims.

By limiting floodplain development within cities, the regulations will impair its agricultural preservation policies, according to the preliminary injunction motion.

In Tillamook County, for example, the floodplain regulations will "effectively decrease the county's usable farmland," the motion said. "Over the long term, this will erode the character of Tillamook County, reducing tourism as well as its tax base."