NMFS issued the biological opinion pursuant to a federal court decision in 2004. In National Wildlife Federation v. National Marine Fisheries Service, Judge Thomas Zilly of the federal district court in Seattle found that FEMA's flood insurance program encouraged floodplain development and harmed salmon already threatened with extinction. He ordered FEMA to consult with NMFS to ensure compliance with the Endangered Species Act, and the document issued today is the result of that process.
"We have always known that building homes and businesses in the floodplain was dangerous and economically senseless," said John Kostyack, Excecutive Director of Wildlife Conservation and Global Warming at the National Wildlife Federation. "With global warming causing sea level rise and intensified storms, the risks of such development are now higher than ever. With this decision, we now have a tool for reducing risks to both wildlife and people."
The 240-page analysis documents the various ways in which FEMA's flood program actually encourages development within the sensitive floodplain area. Because most private insurers refuse to insure floodplain homes, FEMA's insurance program allows development to occur where it otherwise would not. FEMA also sets minimum development standards for all floodplain construction that currently fail to include environmental standards. By inducing development in high-risk floodplains, FEMA has created a deficit of $17 billion -- one that Congress will soon be forced to bail out.
NMFS found that the program was jeopardizing the survival of Puget Sound chinook, Puget Sound steelhead, and Hood Canal chum salmon, and adversely modifying their designated critical habitat in violation of the Endangered Species Act. It also found that by reducing the prey base for Southern Resident Killer whales, it jeopardized them as well. In fact, it found that implementation of the FEMA program in Puget Sound could result in a 30 percent reduction of chinook salmon in Puget Sound -- the orcas' favored food source -- in the years ahead.
As required by the Endangered Species Act, NMFS also laid out an alternative approach for FEMA that would not result in jeopardy to salmon and orcas. That alternative includes new requirements that development within the floodplain and riparian buffer area be either prohibited or that its impacts to the stream be completely mitigated. One notable element is that any development in these sensitive areas be required to use "low impact development," i.e., protection of native vegetation, pervious concretes, narrow footprints, and raingardens to eliminate storm water runoff. Just last month, the Washington Pollution Control Hearings Board declared that low impact development was both more effective than traditional stormwater controls like detention ponds, and cheaper to implement.
"Americans are getting tired of paying to rebuild flooded homes in places that should be left alone," said Jan Hasselman, an Earthjustice attorney who argued the 2004 lawsuit against FEMA. "The good news today is the federal agency scientists have stepped in on behalf of both American taxpayers and its wildlife and said no to building in flood-prone areas. We think this is just plain old common sense."