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Other Views: FEMA floodplain overreach must be stopped

The Federal Emergency Management Agency is supposed to help communities recover from disasters. But now the agency is creating a disaster of its own in Oregon by using its insurance program to place floodplains in 271 communities off-limits to development, agriculture and forestry. If FEMA and the agency it claims is forcing its hand won't back off, Congress will have to intervene.

The areas affected by a de facto moratorium on human activity in floodplains would include Glenwood, the Eugene Water & Electric Board's riverfront property, much of the Coast, chunks of Portland's waterfront and swaths of farm and forest land. It's not just Oregon's problem — the rest of the country could soon be under the same restrictions, with Oregon providing a template.

The disaster has its genesis in a lawsuit seven years ago that forced FEMA to consult with the National Marine Fisheries Service to ensure that its flood insurance program is compliant with the Endangered Species Act. Like a hurricane gathering force as it approaches landfall, the consultations worked their way through the bureaucratic process, resulting in the final draft of a plan last April that would alter the flood insurance program beyond recognition.

In the course of this process, FEMA has on occasion complained that it is being asked to exceed its legal authority. On other occasions, however, the agency insists that it has no choice but to comply with the directives of NMFS. The fisheries service, for its part, insists that floodplain restrictions are needed to protect endangered salmon and minimize future flood damage.

On Tuesday, the Democratic members of Oregon's congressional delegation sent a letter to FEMA's administrator, noting that the agency "will exceed its congressionally authorized authorities by requiring communities to prohibit private development in order to participate" in the flood insurance program. The letter described FEMA as forcing communities to choose between imposing a floodplain development moratorium, or implementing as-yet unspecified floodplain protection measures. Communities that fail to either stop development or adopt the non-existent measures would be subject to enforcement actions.

Rep. Peter DeFazio has taken the lead on this issue, and he sent a letter of his own Tuesday to the regional head of NMFS, recognizing that the fisheries service is the force behind the draft plan. The entire exercise, DeFazio wrote, is based on a fundamental misunderstanding of the purpose of the National Flood Insurance Program. "Nothing in the NFIP grants FEMA regulatory authority over land use, and NMFS cannot use the guise of the Endangered Species Act to expand FEMA's jurisdiction under the NFIP into federal land use regulation," the letter said.

One reason this issue has attracted so little attention can be divined from DeFazio's letter: Any discussion of it leads into a briar patch of jargon and acronyms. But it boils down to this: A voluntary program that was designed to insure against flooding and to discourage development in flood-prone areas is on the verge of becoming a federal instrument for tight control over local land-use decisions. The result, as DeFazio wrote, would be "severe detrimental economic effects" for Oregon's cities, forests and farms.

The history of litigation over the flood insurance program placed Oregon first in line for the new regulations — ironically so, because Oregon's statewide land-use planning system provides stronger floodplain protections than can be found in most other states. But the rest of the nation will be affected before long, making it even more important for FEMA, in consultation with NMFS, to ensure that any changes in the flood insurance program are sensible and workable. If FEMA can't or won't do that, Congress will have to act.