NMFS has sued FEMA, regarding fish habitat protection in floodplains

Local planning directors currently face the potential for new regulations regarding fish habitat that could affect developers or homeowners, depending on the scope of the rules.

About a month ago, planning directors from throughout the state met in Prineville for a monthly training in which they learned about a lawsuit pitting one federal agency against another.

“What you have is this situation where the National Marine Fisheries Service sued the Federal Emergency Management Agency,” said City of Prineville Planning Director Phil Stenbeck. “You have a change in federal regulations going on that we have to understand how to apply at the local level.”

So far, what changes the lawsuit will prompt remains unclear to local planners, but Stenbeck said what will likely happen is the floodplain regulations governed by FEMA will soon incorporate some Endangered Species Act rules regarding fish habitat.

Stenbeck noted planning directors encounter situations like these from time to time. Sometimes the Legislature imposes new rules and other times a lawsuit or court case will determine how regulations will be applied.

“The directors are, of course, trying to minimize the burden to citizens,” he said.

In this case, Stenbeck and other planning directors throughout Oregon are trying to ensure that the regulations, whatever they may be, are limited to a reasonable area.

“What you have is one agency (FEMA) that says in this area of your land, you need to do X, Y, or Z in terms of regulations. The other agency (NMFS) has basically said we kind of have jurisdiction everywhere,” he explained, “and we are trying to narrow them back. The whole focus is to contain their interest to the floodplain area or corridor for protection of species, similar to the floodplain regulations.”

If they do not contain the area that NMFS hopes to impose its fish habitat regulations, Stenbeck believes the city and county could encounter requirements for biological assessments anywhere for any project.

“We are trying to keep it contained to what’s reasonable,” he said. “It’s figuring out where the habitat is that needs to be protected to keep the species continuing.”

As planners labor to understand what regulations are coming and minimize their impact, they have no ideas at this point whether the rules would affect developers, homeowners, or both.

“There is no clear-cut answer,” Stenbeck said.

He offered the example of someone who owns a house on a quarter-acre of property that is next to a waterway.

“You need some kind of exemption,” he said on how that situation might relate to new regulations. “They aren’t necessarily saying you have an exemption, so we are trying to force the issue.”

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