November 20, 2017

Feds turn flood insurance into a tool for land grabs in Oregon

By Damien M. Schiff Senior Attorney

When zoning and planning decisions are made for your community, which level of government should make the call?

Traditionally, land use is a local and regional responsibility—for good reason. We want a meaningful say in policies that will shape our communities, and that means vesting them with officials closest to the people—city, county and state governments.

Not insignificantly, this tradition is consistent with the Constitution, which grants the federal government only limited powers and excludes it from intruding on concerns that are primarily local.

However, local control is under attack right now in Oregon—by a federal environmental bureaucracy engaged in aggressive empire building. The National Marine Fisheries Service—known as NMFS—is tasked with regulating for federally protected migrating fish. But it is moving beyond that mission and turning itself into a super zoning board for much of the state.

NMFS has assumed power over a program far outside its proper area of oversight—the federal flood insurance program—and is manipulating this program as a tool for a federal takeover of land use.

By law, federal flood insurance is available to communities that are located in floodplains if they develop their own land use policies to limit harms from flooding. Scores of Oregon communities depend on the insurance to help foster responsible economic development.

But access to the program in Oregon now comes with a big asterisk. NMFS is insisting that communities adopt federally dictated land use restrictions in order to be eligible for coverage.

NMFS says the restrictions are meant to help endangered species like salmon and steelhead—and, indeed, it issued them after environmental groups won a lawsuit calling for a review of how flood insurance affects those species.

Here’s the problem with that rationale: As a matter of law, neither the flood insurance program nor FEMA, which administers it, has any impact on species whatsoever, because neither has power over land use.

As Oregon Rep. Peter DeFazio put it in a letter protesting the new federal land use regime: “FEMA is not a land use regulatory agency and has no authority over privately funded development on private lands by private developers.”

What NMFS has done is unilaterally transform the very essence of the flood insurance program—from an insurance provider for one type of natural disaster into an instrument for federal zoning in the name of species protection. As an unelected bureaucracy, NMFS has no authority to change the program’s congressionally enacted mission, or use it as a means of issuing land use commands to local governments.

The restrictions that NMFS is imposing can be severe—creating a potential chilling effect on new economic activity in targeted areas. Some of these areas are precisely where new economic activity is needed most. Nearly all of downtown Coos Bay, for example, is covered. This has imperiled one of the most promising redevelopment projects in years—the refurbishing of an old mill facility that was intended to provide a site for 16 businesses.

In an editorial last year, the Eugene Register-Guard noted that the restrictions had the potential to “place floodplains in 271 communities off-limits to development, agriculture and forestry.” Affected regions, the paper wrote, would include not just significant municipal areas, but “swaths of farm and forest land.”

Oregon communities have already enacted some of the most demanding land use regulations in the country, designed to protect the environment while allowing responsible economic development. The heavy-handed intrusion by NMFS puts those carefully considered policies at risk.

The federal bureaucrats’ aim is “to prohibit redevelopment in large areas of Oregon, overriding our own land use laws,” as Rep. DeFazio complained last year in a meeting with planners from Coos Bay and Springfield. “They can’t do that.”

So they can’t. Because NMFS’ usurpation is not just destructive but clearly unlawful, the City of Coos Bay recently challenged it with a federal lawsuit. Represented free of charge by Pacific Legal Foundation, the city is fighting to reclaim its own decision-making and to protect communities throughout the state from this unjustified federal assault. Success in this lawsuit will also reverberate nationwide, by deterring NMFS from trying the same scheme elsewhere, in other areas where the flood insurance program operates. The courts must make it clear to all federal bureaucracies that they may not coerce local communities into surrendering their rightful powers of self-government.

Published by Capital Press

learn more about

Town of Coos Bay, Oregon v. National Marine Fisheries Service

Federal bureaucrats are twisting environmental and emergency management law to control zoning across Oregon, including its treasured coastal regions. At issue is a National Marine Fisheries Service opinion that governs FEMA’s national flood insurance program. Under the rule, local communities wanting federal flood insurance must abstain from economic development—purportedly to protect endangered species. PLF has stepped in on behalf of Coos Bay, a town that won’t stand for this blatant abuse of the law.

Read more

What to read next