Fed Ruling Could Affect 32,000 Acres in Linn County

By: ALEX PAUL | Albany Democrat-Herald

Original article

July 6, 2016


Construction projects on more than 32,000 acres of land in Linn County could be significantly restricted unless the Federal Emergency Management Agency and the National Marine Fisheries Services can come to terms with issues surrounding implementation of the Endangered Species Act.

At this point, communities are being advised to stop all development in areas that are at risk of flooding once every 100 years, beginning in 2018. In Linn County, that could affect more than 5,300 tax lots.

“This could be a $3 billion problem,” Linn County Commissioner Roger Nyquist said. “In coming years, buildable property could be worth $100,000 per acre. If we put 32,000 acres off limits to construction, that’s more than $3 billion.”

In 2009, FEMA was sued in U.S. District Court for failing to ensure that the National Flood Insurance Program — on which more than 271 Oregon communities rely — complies with the Endangered Species Act.

In a settlement agreement, FEMA is required to consult with the National Marine Fisheries Services and propose changes to the program through Reasonable and Prudent Alternatives (RPA).

Nyquist said the proposal is so new, federal agencies are “making stuff up as they go along.”

At this time, FEMA is saying that the non-buildable area is 170 feet from the normal high water line if the property lies within the 100-year floodplain.

“And to our knowledge, there isn’t anything being done in terms of mitigation for harm caused by this ruling,” Nyquist said.

Linn County and FEMA have had a contentious relationship for several years, in part because the Board of Commissioners believe FEMA does not use the most accurate methods to determine flood plains.

Linn County uses an advanced laser-based system that can calculate elevations within inches and believes that is the standard by which FEMA should work.

“To say the least, we are very concerned about the financial consequences to many Linn County residents,” Nyquist said.

Last week, Oregon’s congressional delegation sent a letter to FEMA administrator Craig Fugate, urging him to implement changes to the National Flood Insurance Program.

Drafted by Rep. Peter DeFazio, it was signed by Senators Ron Wyden and Jeff Merkley and Representatives Earl Blumenauer, Kurt Schrader and Suzanne Bonamici.

The letter states, “In Oregon, 271 communities depend on the National Flood Insurance Program to provide flood insurance. The many waterways that contribute to Oregon’s natural beauty and robust economy also make our state prone to flooding.

“Given the reach and importance of the NFIP in Oregon, it is essential that it is administered with the utmost transparency and clarity. With some of the strongest land use laws in the country, Oregonians deserve a collaborative process with FEMA on National Flood Insurance Program Reasonable and Prudent Alternatives implementation — one that addresses protection of salmon and steelhead habitat, but is also economically and socially feasible.”

The letter also points out that the Reasonable and Prudent Alternatives would force FEMA to regulate land use, “which is beyond FEMA’s legal authority related to floodplain management.”

According to the letter, communities are to be given two options: Voluntarily impose a temporary moratorium on all floodplain development that adversely impacts Endangered Species Act listed species or their habitat; or voluntarily implement the interim measures found in RPA element.

“Communities cannot be expected to implement these or any other measures without thorough guidance and consultation with FEMA,” the letter continued.

Oregon is not the only state affected by the court ruling. Other lawsuits have been filed in regions throughout the country.

The Oregon Department of Land Conservation and Development has notified communities that it will hold a series of workshops and presentations that focus on the issue.

It also will offer guidance, model local ordinances, grants and technical assistance.

Contact Linn County reporter Alex Paul at 541-812-6114.