Oregon Counties Pause Litigation Over National Flood Insurance Regulations

Several local governments in Oregon are pausing their lawsuit against new national flood insurance restrictions while negotiating with federal officials to end the dispute.

Earlier this year, the Oregonians for Floodplain Protection nonprofit filed a complaint against the Federal Emergency Management Agency, alleging its new rules undermine Oregon's farmland protections.

The organization represents Clatsop, Columbia and Tillamook counties, as well as other communities and individuals who believe new flood insurance regulations will alter development patterns contrary to the statewide land use planning system.

By effectively prohibiting construction around streams, the new FEMA rules will force "urban development to expand into areas that have been recognized and preserved as a combination of rural and resource lands," which are needed to support farming and forestry, the lawsuit said.

However, it now appears the organization expects a legal battle may not be necessary to remedy its concerns.

In a recent joint court filing, representatives of FEMA and other federal agencies joined the plaintiff in asking a judge to suspend the court proceedings.

Staying the lawsuit will allow "the parties to discuss options which may resolve the matter without further litigation," the document said.

If any additional proceedings are needed, pausing the lawsuit will still "promote the efficient and orderly disposition" of the case by ensuring the federal government's legal arguments reflect the views of the current presidential administration, the document said.

However, several environmental groups that have intervened in the case — Northwest Environmental Defense Center, Center for Biological Diversity, Willamette Riverkeeper and Conservation Angler — oppose suspending the litigation.

The organizations object to the pause because resolving the legal issues involved "facilitates FEMA's ability to comply with the ESA," referring to the Endangered Species Act, according to the document.

The Endangered Species Act is relevant because it serves as the basis for the federal government's new flood insurance regulations, but the Trump administration is changing its approach to enforcing that law.To resolve another dispute with environmental groups 15 years ago, the federal government agreed to examine the national flood insurance program's effect on salmon, steelhead and killer whales, which are protected under ESA.

As a result of that "biological opinion," the federal government recommended shielding floodplains from development, eventually leading to the new flood insurance program regulations.

Those rules required communities that participate in the national flood insurance program to restrict construction in "riparian buffer zones" or in other cases, to take steps to ensure floodplains experience "no net loss."

Opponents of the new regulations, such as the local governments who formed Oregonians for Floodplain Protection, claim that such restrictions will necessarily reduce the amount of buildable land within Oregon's urban growth boundaries, creating pressure to develop agricultural zones.

"Limitations on development within floodplains may redirect development to other areas, namely on lands outside of the mapped floodplain," the complaint said.

Since coming into office, though, the Trump administration has announced it's altering its enforcement of the ESA to reduce the statute's regulatory burden, which environmentalists fear will dismantle habitat safeguards for species.

It's not yet clear what that means for the national flood insurance program, though the settlement negotiations raise the possibility that the federal government may take a more flexible approach to floodplain regulations.

For example, in another lawsuit involving ESA, the Trump administration recently said it agrees with Klamath farmers that the federal government lacks authority to curtail irrigation in a way that would deprive growers of water under contracts that predate the law.

In that case, the U.S. Bureau of Reclamation and Klamath irrigators recently filed documents stating "there is no longer a concrete dispute" between them, which they say will likely moot a legal dispute currently being reviewed by the 9th U.S. Circuit Court of Appeals.

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