River Dance

When Dan Rohlf ushered his Lewis Clark law students to the penthouse of a South Waterfront condo tower last week, he wasn't trying to sell them on the million-dollar view.

Rohlf, an associate professor at Lewis Clark Law School and also the director of the Pacific Environmental Advocacy Center, instead wanted to show them how a federal insurance program is destroying salmon habitat in river flood plains.

And the connection he's making between flood insurance and salmon could play a big role in two huge proposed Portland developments.

One of those is in South Waterfront—where Oregon Health Science University plans to develop its 20-acre Schnitzer campus and where others hope to erect more housing, parts of which would stand within a Frisbee toss of the river shore. The second is on the city's largest undeveloped parcel of river-front land, 831-acre West Hayden Island, which the Port of Portland wants to turn into a massive marine terminal.

Last month, on behalf of the Audubon Society of Portland and other environmental groups, Rohlf filed a federal lawsuit in Portland, asking the court to declare that the Federal Emergency Management Agency has violated the Endangered Species Act and to "issue an injunction curtailing FEMA's issuance and/or authorization of insurance."

None of the media reports about that lawsuit focused on its potential implications: It could lead to the delay, alteration or even cancellation of projects all along Oregon's rivers, including the lower Willamette and Columbia in Portland.

When developers want to build riverfront projects now, they typically buy subsidized flood insurance through FEMA, which already insures 33,000 Oregon properties worth nearly $7 billion.

Rohlf's lawsuit argues FEMA is violating federal law by failing to "consult" with the National Marine Fisheries Service about whether the development enabled by the FEMA insurance endangers any of the 15 Oregon salmon and steelhead species listed as threatened or endangered under the Endangered Species Act.

"It could have effects on South Waterfront because much of the land there is in a defined flood plain, and so is West Hayden Island," Rohlf says of the lawsuit. "Near-shore habitat is the key thing the lower Willamette lacks. What we have done is armored the banks of the river with cement, seawalls and riprap instead of sandy beaches and natural banks."

The Portland lawsuit, filed June 25, is modeled closely on a successful lawsuit the National Wildlife Federation won against FEMA in Washington in 2004.

Dan Siemann, a senior environmental policy specialist with the National Wildlife Federation in Seattle, says the 2004 decision is already shaping a new approach to flood-plain development. While the decision is still working its way through affected federal agencies, Siemann says at least three projects in the Puget Sound area have been affected because they're proposed in flood plains.

"Until the rules are clarified, it will cause major uncertainty for development projects," Siemann says.

Last September, in response to the 2004 lawsuit, federal fisheries officials issued a biological opinion stating, "FEMA's [flood insurance] activities do lead to flood-plain development in Washington state, some of which affects the habitat of listed species."

That's a big no-no, Rohlf says, because it puts FEMA in the position of jeopardizing the habitat of endangered species. Up until now, FEMA has skirted that problem by simply not consulting with federal fisheries officials about whether flood insurance is contributing to the decline of salmon: a kind of "don't ask, don't tell" policy.

Since nobody can develop riverfront land without flood insurance and FEMA backs the majority of such insurance, that seemingly innocuous opinion gave Rohlf and his environmental allies ammunition to file a similar action in Oregon (other groups have filed similar suits in California and New Mexico).

FEMA has not yet responded to the Oregon lawsuit.

In an October 2008 memo analyzing the Washington biological opinion, Portland's Bureau of Environmental Services predicted a similar outcome to litigation in Oregon: that "FEMA flood insurance jeopardizes the continued existence and adversely modifies the critical habitat of listed species."

Port spokesman Josh Thomas says the Port will monitor the lawsuit, although officials don't believe it affects West Hayden Island.

"OHSU has not yet reviewed this lawsuit," says OHSU spokeswoman Lora Cuykendall. "As is our policy, we don't speculate about future legal decisions."

Based on initial negotiations from Puget Sound, it may take more than an economic recovery for more penthouses to be built in South Waterfront, Rohlf says.

"The 'reasonable and prudent' alternatives they are talking about up there," Rohlf says, "include no development within 50 feet of a flood plain unless the local jurisdiction can demonstrate such development won't impact habitat negatively."

WWeek 2015