COOS BAY — The city of Coos Bay filed a lawsuit in federal court Thursday against the National Marine Fisheries Service over its recommendation for more restrictive floodplain regulations to the Federal Emergency Management Agency’s flood insurance program, which would restrict development in most of downtown.
Damien Schiff, an attorney with the Pacific Legal Foundation which is representing the city in the lawsuit, said NMFS’s biological opinion is an improper expansion of both FEMA and NMFS’s authority.
“The heart of the lawsuit is that this is something that belongs in either local government’s jurisdiction or the states jurisdiction,” Schiff said, “This is not something the service (NMFS) should be requiring FEMA to do in regards to its flood insurance.”
NMFS is asking FEMA to put high-risk floodplains off-limits to development, because it says it will better protect endangered species like salmon and steelhead.
Floodplains are areas along rivers, stream and shorelines that are regularly inundated with water. That distinction applies to chunks of downtown Coos Bay and Hwy 101. The National Flood Insurance Program identified 251 communities in Oregon as flood-prone, commonly known as the 100-year flood area.
“The issue really centers around the fact that Oregon is one of the most highly-regulated land use states in the nation,” Coos Bay City Manager Rodger Craddock said, “Only further complicated by the fact that majority of our city falls within 100- year floodplain and tsunami inundation zone.”
Craddock said the city doesn’t believe FEMA has the legislative authority to implement rules that are attached to the Endangered Species Act. Under the proposed changes, local communities would have to abstain from economic development — which would hinder projects like the old mill facility or the future construction of wastewater treatment plant no. 1 — to be eligible for federal flood insurance.
“Currently, if the city doesn’t abide by the rules of the flood insurance program and we don’t pass their rules on through ordinances we jeopardize the ability to get flood insurance,” Craddock said.
FEMA’s insurance program provides low-cost federally subsidized flood insurance to cover risks incurred in flood-prone areas. Without the insurance plan, many banks and lenders wouldn’t finance home building or development.
“Any new development in the mapped floodplain areas will be substantially more difficult to finance,” attorney Schiff said.
The entire issue stems from a previous lawsuit eight years ago.
In April of 2016, NMFS told FEMA that it needed to change its implementation of its flood insurance program in order to better protect endangered species and issued recommendations to restrict development in the 100-year floodplain.
The recommendation was borne out of a 2009 lawsuit in which FEMA was sued by several Oregon environmental groups over violations of the Endangered Species Act. The suit argued that FEMA failed to consider its floodplain insurance plan’s effect on protected salmon and steelhead by fostering development in high-risk flood areas.
As part of the settlement, FEMA agreed to collaborate with NMFS. The fisheries service is responsible for protecting migrating fish under the Endangered Species Act.
While Coos Bay’s lawsuit is over restrictive floodplain regulations, Schiff said it points to a much larger issue of exceeding authority.
“The larger point that although this is a controversy that arises out of flood insurance it really goes beyond it,” Schiff said, “As an upshot you’ll have NMFS and Fish and Wildlife having significantly expanded authority under the Endangered Species Act.”
Schiff isn’t the only one who’s called it a case of government overreach.
During a roundtable last year, Fourth District Rep. Peter DeFazio said if FEMA implements NMFS’s recommendations, its setting itself up for lawsuits.
“They’re going to absolutely absurd lengths,” DeFazio said in a November interview with The World, “It’s hard to believe that the downtown area of Coos Bay is somehow defined as critical salmon habitat and prohibited from future development.”