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Environmentalists Sue Government to Safeguard Salmon by Robert McClure Seattle Post-Intelligencer, September 17, 2003

Suit seek to restrict building on many Northwest waterways

In a move that could have far-reaching effects on development in the Puget Sound region, environmentalists sued the federal government yesterday to force it to restrict construction that harms salmon protected under the Endangered Species Act.

The suit seeks to compel the Federal Emergency Management Agency to check with federal fisheries officials on what sort of restraints should be placed on FEMA-backed flood insurance in areas around streams expected to flood at least once every hundred years.

Although a precise accounting of how much land could be affected was unavailable yesterday, the scope clearly would be staggering, running into the tens of thousands of acres at least.

The suit could set a precedent affecting development across a wide swath of the West, from California to Washington and east across Idaho into the western reaches of Montana.

The Puget Sound-area communities affected include just about all the towns in this region -- more than 100, from Algona to Yelm. But the effects would be felt most strongly in outlying, rapidly developing towns such as Monroe, Gold Bar and Orting.

The Puget Sound chinook was listed as "threatened" and protected under the Endangered Species Act in 1999.

"The listing of chinook populations in the Sound under the Endangered Species Act was supposed to change the way we do business, but it hasn't," said Jan Hasselman, an attorney representing the National Wildlife Federation and Public Employees for Environmental Responsibility. "If we're going to build healthy communities and save salmon from extinction, we're going to need to grow smart -- and so far, we're failing that test."

Mike Wright, a FEMA spokesman in Bothell, referred inquiries to the agency's Washington, D.C., headquarters, where officials preparing for the arrival of Hurricane Isabel were unavailable for comment.

However, FEMA officials in the past have argued that issuing flood insurance has such a limited effect on development that they aren't required to consult with the National Marine Fisheries Service on its effect on protected fish.

That contradicts a NMFS official's assertion in a 1998 letter to FEMA that providing flood insurance in flood plains "could result in increased development in flood-prone areas with consequent impairment of flood-plain functions of salmon bearing waters."

Development in areas around salmon-bearing streams hurts the fish in a variety of ways. For one thing, it tends to create more water running off the land after rainstorms, because surfaces that used to soak up water have been paved.

That runoff tends to collect oil, grease, pesticides and other pollutants, which scientists have shown can severely affect a salmon's ability to find food, attract mates and locate its home stream for spawning, among other affects. Research earlier this year suggested that dirty storm water was killing salmon in Seattle-area streams.

Development also tends to concentrate water into fewer channels, and pour more water in faster, eliminating slow-flowing side channels where young salmon like to hang out while they grow up.

In some cases, this means the fish end up getting swept away by fast-moving currents straight into salt water long before they would under natural circumstances, which can affect their body chemistry, leave them vulnerable to predators and cause other ill effects.

Mike Crouse, NMFS assistant regional administrator for habitat, said NMFS had so much work to do after the salmon were protected that it has never followed up on the flood-plain insurance question.

"It's fair to say we haven't pressed the issue," he said.

Crouse said the agency has been extremely busy consulting with a variety of governments on what actions can be taken to help the salmon.

"It's a huge workload issue," he said. "We're just now getting our arms around the workload. We've tackled a lot of the easy things."

But the kind of issues brought up by the suit filed yesterday in U.S. District Court in Seattle would be anything but easy.

"You'd force us to think about some territory that neither agency has delved into," Crouse said.

Hasselman said the requirement for the agencies to consider the effect of the flood insurance program on salmon is "fairly straightforward." It was litigated once before, when the National Wildlife Federation sued over FEMA's flood insurance program in the Florida Keys, where development was encroaching on the habitat of the Key Deer.

In that case, a judge ordered FEMA to consult with the U.S. Fish and Wildlife Service about the program's effect on the deer.

In Puget Sound, "Maybe we need to stay out of the most sensitive habitat. Maybe we need to find ways to deal with storm water. But right now those questions aren't being asked," Hasselman said. "There are a few places left in Puget Sound that still have good habitat left for fish. We need to stop degrading those last best places.

"We don't have the handbook on what it's all going to look like, but the law is set up so the experts ask and answer those questions."