A reluctant Auburn City Council on Nov. 17, 2008 slapped a six-month moratorium on all construction in flood plains within the city’s boundaries, as identified by the Federal Emergency Management Agency’s 100-year floodplain.

Council members acted to prevent a lawsuit the federal government had threatened over FEMA’s National Flood Plain Insurance program or NFIP.

Though local governments like Auburn administer the NFIP, the National Marine Fisheries Service (NMFS) said it violated the 1973 Endangered Species Act, and any city that allowed development in the floodplains would risk the 800-pound gorilla of the federal government on its back.

Council members subsequently extended the six-month moratorium while the City and everybody else cooled their heels, waiting for FEMA to release a model ordinance that would lay out the rules under which development could take place.

Last week, FEMA finally released the ordinance City officials had waited for so long. In two weeks, city officials expect to adopt an ordinance that models FEMA’s. And when that happens, the moratorium will be automatically lifted, almost a year and a half after the Council first enacted it.

“This is because FEMA has come out with their model ordinance,” Auburn Mayor Pete Lewis said Monday. “So if we vote in another two weeks, we’re done for good and people can just develop their properties.”

That will come as a relief to the owners of properties within the city north of about 10th to 272nd and from the Green River to West Valley Highway, including the Robertson’s group plans for its property now occupied by the Valley 6 Drive-In Theaters.

The Robertson’s group is exploring the possibility of developing a retail center.

The City Council had expected to take action Monday but additional work was needed.

“It was only two days ago that we got the latest changes from FEMA,” said Councilman Rich Wagner. “The changes are things that make common sense, in fact they are improvements, which we haven’t seen a lot of in those things. But there wasn’t time to get it through the Public Works Committee and the Planning and Community Development Committee in time for tonight.

“It’s clarification of things like what constitutes adverse affect, and it gives one more definition of what adverse effect is,” Wagner said. “There were some things like the area where you have to write a plan if you are going to take more than 5 percent of the vegetation away. Before you had to do it for your whole piece of property, now they say you only have to do it in the flood zone. Those are the kinds of common-sense things that came through, but we still have to take it through the two committees.”

The NMFS had determined in 2008 that the NFIP violated the ESA because its construction standards were too weak to protect endangered or potentially endangered Chinook salmon, chum salmon, steelhead and killer whales and could actually be read to authorize the taking of threatened species.

FEMA’s Acting Regional Administrator, Dennis A. Hunsinger, said in a letter sent to Lewis on Oct. 21, 2008, that any jurisdiction that issued permits for buildings in flood plains could be slapped with a federal lawsuit.

Hunsinger wrote that local governments could avoid impacts to endangered species by temporarily stopping flood plain development until FEMA and NMFS finished consulting on the minimum required for a builder to prove that his or her activity does not constitute a taking. The city decided on six months to give FEMA and NMFS time to do that and to determine what local regulations should be included to properly protect endangered species.

The effect was that unless builders could satisfy both FEMA and National Marine Fisheries Service that what they’re building or developing meant no taking of fish, they couldn’t build. The problem was that NMFS and FEMA had not established the rules under which they would consider development not creating a take. In other words, builders would be guilty until they could find a way of proving themselves innocent under a set of rules that had not yet been devised.

NMFS’ finding contravened an earlier FEMA biological opinion that found no jeopardy attached to incidental taking under the flood insurance program.

In 2003, the National Wildlife Federation sued FEMA in Federal District Court in Seattle for failure to consult with NMFS under the ESA regarding its administration of the program. It claimed that FEMA’s program encouraged flood plain development and harmed salmon and other species already threatened with extinction. In 2004, Judge Thomas Zilly agreed, ordering FEMA to consult with NMFS regarding its program to ensure compliance with the ESA.

Mortgage lenders require flood insurance when loaning on a house in a flood plain. The national program underwrites the insurance offered by private insurers.

NMFS’s opinion affected development in the flood plains of dozens of Western Washington rivers, including the Green.

King Countyfiled an appeal along with the cities of Auburn, Kent, Tukwila and Renton. Local chambers of commerce and the South Sound Chamber of Commerce Legislative Coalition submitted letters of support. The appeal claimed that the FEMA floodplain map did not accurately reflect the control measures that have been implemented to minimize flooding, including the Howard Hansen Dam and the Mud Mountain Dam.