A reluctant Auburn City Council on Monday put a six-month stop on all construction in flood plains within the city’s boundaries.

Councilmembers say they had no choice but to take the action to prevent a lawsuit the federal government had threatened over the Federal Emergency Management Agency’s National Flood Plain Insurance program or NFIP.

Local governments like Auburn administer the NFIP, but the National Marine Fisheries Service (NMFS) now says it violates the 1973 Endangered Species Act, and cities could be on the hook for it.

The NMFS determined that the program violates the ESA because its construction standards are too weak to protect endangered or potentially endangered Chinook salmon, chum salmon, steelhead and killer whales and can actually be read to authorize the taking of threatened species.

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

“That is a direct threat,” said Auburn City Attorney Dan Heid.

Hunsiger wrote that local governments could avoid impacts to endangered species by temporarily stopping flood plain development until FEMA and NMFS finish 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.

“What this really means is that unless (builders) can satisfy both FEMA and National Marine Fisheries Service that what they’re building or developing means no taking of fish, then they can’t build, period,” Lewis said. “NMFS and FEMA have not established the rules under which they would consider development not creating a take. In other words, you are guilty until you can find a way of proving yourself innocent under a set of rules that have not yet been devised.

“Hundreds of people will be affected,” Lewis added. “One big problem is we don’t know what the new FEMA flood plain map is going to be. But the one we saw said pretty much everything north of about 10th to 272nd and from the Green River to West Valley Highway is in their floodplain. And we’re the tip of the iceberg.

“Poor Kent and Tukwila. The original maps said Auburn is like four feet under water and Kent is like 8 to 12 feet. Kent has a higher flood plain than we do, and it’s all the concentrated development area they have left.”

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.

Most homeowners’ policies don’t cover flood damage, but 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 could profoundly affect development in the flood plains of dozens of Western Washington rivers, including the Green.

King County has filed 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 have submitted letters of support. The appeal claims that the FEMA floodplain map does not accurately reflect the control measures that have been implemented to minimize flooding, including the Howard Hansen Dam and the Mud Mountain Dam.

“Flood control capacity was not referenced in the analysis of the initial FEMA map,” said Sam Pace, a housing specialist with the Seattle King County Association of Realtors. “They overstated the areas subject to flooding beyond what more accurate analysis would have supported.

“… This is a very, very big issue,” Pace concluded. “It not only places the future of housing for workers in jeopardy, it has the potential to compromise the ability of cities to secure the economic development that they need to ensure the economic vitality that will produce the tax revenue they need to make investments in quality of life. If much of the valley floor is off limits to new development, it has the potential to seriously comprise the economic health and well being of the south end cities, particularly those on the valley floor.”

The city is required by state law to hold a hearing following the imposition of a moratorium. The hearing is set for 7:30 p.m., Jan. 5, at the regular council meeting. After the six months are up, the city could decide to extend the moratorium.

Calls to the cities of Kent and Renton were not returned.