Batten down the outhouse! Here comes a flood of regulation.

Author: Brian T. Hodges

Why are the feds trying to convince Washington’s cities and counties to adopt new development regulations that could limit a landowner’s right to have an outhouse, trailer, or even mow his lawn? 

It’s because 6 years ago, in National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151 (W. Dist. Wash. 2004), environmentalists convinced a federal district court judge that by providing flood insurance to homes and businesses located in floodplains, FEMA was essentially “subsidizing” new development in sensitive areas.  The judge ordered FEMA to go back and consider the impact that insured homes and businesses could have on species listed under the ESA, such as salmon and whales. 

FEMA responded by expanding its Puget Sound area flood maps and developing an onerous “model” building code that it is now shopping to all 122 local communities impacted by the new maps.  The model regulations came as quite a shock to local communities and have received quite a bit of attention.  See these recent stories from the newspaper and T.V. news.  For example, the revised FEMA maps expanded the 100 year floodplain to include much of the historic Skagit County towns of Mt. Vernon and La Conner, subjecting century-old homes and businesses to ESA-inspired land use regulation (via the eligibility requirements for the federal insurance program). 

The model code threatens to withhold or increase the cost of flood insurance unless local communities, business, and homeowners change their ways.  Want to park that RV on your property?  You’d better have a full tank of gas and keep the machine in tip top shape; otherwise, you’ll have to find somewhere else for your street pachyderm.  You say you have an outhouse?  Well, you’d better lash it down because goodness knows what a pod of orca would do if they encountered a floating privy.

While portions of the model code are amusingly absurd, many of FEMA’s proposals threaten Puget Sound homeowners, farmers, and businesses.  According to the feds, levees and other forms of bank protection are bad for fish and should be removed.  Just imagine Washington’s Skagit Valley without levees: approximately 30,000 acres of prime land would be inundated in a normal year.  Thinking about elevating your home above the projected flood level?  No can do.  If the fill is swept away in a flood, the feds think it could damage fish habitat.  So you want to mow that lawn?  Not any more.  FEMA wants you to dedicate 65% of your land as a natural vegetation zone.  FEMA’s model code is replete is similar examples.

How local governments will respond to FEMA’s foray into micro-management is unknown.  Several local communities were caught off guard and are pushing back.  But with the threat of withholding federal money, it is not hard to imagine that many local communities will fold to this massive expansion of federal power.