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Real Property & Development Review

Development Buffers under the Endangered Species Act?

Posted in Environmental

A consultation under the federal Endangered Species Act (ESA) could potentially impact development on property near shorelines in Washington State. In response to a consultation by the Federal Emergency Management Agency (FEMA), the National Marine Fisheries Service (NMFS) issued a biological opinion concluding that FEMA’s administration of the National Flood Insurance Program (NFIP) in the Puget Sound area violates the ESA because it jeopardizes a number of protected aquatic species. Specifically, NMFS concluded that FEMA’s decision to insure certain floodplain developments under the NFIP threatens the habitat of certain protected salmon, steelhead, and whales.

FEMA should now take steps to mitigate the effects of the NFIP on protected species. In administering the NFIP, FEMA already promulgates minimum land use controls, and municipalities must implement land use controls that are at least as restrictive in order to qualify for flood insurance. In its biological opinion, NMFS suggested FEMA promulgate a specific set of development standards in floodplain areas—including, notably, a 150-foot development buffer from certain shorelines. FEMA has not yet acted on the suggestions set forth in the biological opinion, but it may choose to require municipalities to impose these, or other, stricter development standards in floodplain areas.

The biological opinion (238 pages total), is available on NOAA’s webpage


Development Buffers under the Endangered Species Act?