If flood protection measures about to get under way on the dikes and levees along the Green River don’t jibe with provisions of the Endangered Species Act to protect endangered steelhead and salmon, the City of Auburn could be sued.

That’s the zero-hour warning the National Marine Fisheries Service (NMFS) issued to the City last week, barely 10 days before the official onset of flood season and with preparations in full swing to respond to the threat of flooding posed by the compromised holding capacity of the Howard Hanson Dam.

Temporary measures to increase levee protection include super size sandbags called super sacks that are moved with a forklift and container units that are sandbags structurally reinforced with collapsible wire mesh. Levees will be strengthened and raised to allow the river to move 13,900 cubic feet of water per second compared to the 12,000 CFS capacity before the changes.

Steve Landino, NMFS’ Washington state director for habitat conservation, informed Auburn’s Emergency Preparedness Manager, Sarah Miller, in a letter last week that given NMFS concern to protect the habitat of endangered salmon and steelhead, it will direct the Federal Emergency Management Agency (FEMA) to carry out its obligations to protect habitat as it enforces the National Flood Insurance Program.

Protective rock that might be placed along the Green River by the City, either before or during a flood, Landino wrote, would be considered either long term or temporary fill in the floodplain. And because FEMA admits that the rock would be considered fill under NFIP floodplain management minimum criteria, it is covered by the ESA Section 7 consultation that took place last year, according to Landino.

That consultation, Landino wrote, resulted in a Jeopardy Biological Opinion that included a Reasonable and Prudent Alternative (RPA).

“… Failure to comply with the RPA could be a trigger for third parties or for NMFS to take legal action for protection of the ESA-listed fish,” Landino wrote.

And you’re telling us this now, fumed Auburn Mayor Pete Lewis?

“They’re telling us to cease,” Lewis said. “This is saying we will put you in a position to put human life at risk. What they really said is they didn’t want us to go further, not just with work on the levees but the work atop the levees … This sets up a situation from our perspective that says they are willing to put people’s lives at risk in order to fulfill these requirements. They’re concerned about their obligations for fish. Our first and foremost concern is the lives and safety of our residents, and we will move forward to protect the people of this community.”

Lewis also wondered why the letter was dated Oct. 2 yet landed on Miller’s desk Oct. 20. Letters also were sent to King County – which owns the dikes and levees along the river – FEMA, the State Department of Ecology, the Muckleshoot Tribe and the U.S. Army Corps of Engineers.

Calls to those agencies were not returned. Those officials who were contacted were not yet aware of the letter.

“The National Marine Fisheries Service and the Army Corps of Engineers don’t work together,” said Auburn City Councilman Gene Cerino. “The Corps says you are probably going to have a flood, and therefore you need to do these things. The cities have applied to NMFS, and [NMFS] said we haven’t quite written our program, and they put it off and put it off and put it off, and all of a sudden wham, here it comes.”

Bad timing

Lewis found the timing especially galling.

If something was going to happen that required the City to work in cooperation with NMFS, Lewis said, it should have happened last March, not 10 days before the first possible floods.

“After all these months, all these [flood] meetings? This is a shock that they would do something at this date, and in what looks like an almost secretive manner — a letter dated Oct. 2, delivered on Oct. 20, coming in separately to different cities and not addressed to elected officials,” Lewis said.

Lewis said that the City is not the primary functionary in connection with work being conducted on any levees within the city. The City, in fact, is operating as King County’s contractor, as the county is responsible for flood protection and diking. He said that from this point on, however, the City will invite FEMA representatives to every regional meeting on the flooding emergency so the City can take full advantage of any guidance it may offer.

“I think at this point, we can’t recognize any authority that they think they have right now,” said Auburn City Councilwoman Sue Singer, adding that she had contacted U.S. Sen. Marie Cantwell’s office about the letter.

“What (the letter) doesn’t say is you can’t do anything; what it does say is that whatever you do better be in conformity with what they see as their responsibility under the ESA,” said Auburn City Attorney Dan Heid. “But more than that, they have also thrown in language that says if we don’t do what they’re saying we should do, that could subject us to legal action by them or third parties.”