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Following disastrous flooding on the Mississippi River in the 1920s and 1930s, Congress passed the Flood Control Act of 1936, giving the federal government the power to take on flood control projects that are too big or complex for state or local governments to handle. The U.S. Army Corps of Engineers was given authority for such projects across the country. Once in place, those projects are generally given over to state and local governments for maintenance. In the Chehalis River Basin, the Corps has undertaken several flood management projects, including studies, construction of dams, dredging of navigational channels and the addition of recreational facilities. (U.S. Army Corps of Engineers, 1993) Historically, the Corps' work on flood management projects around the nation have supported the growth agenda by opening more land for development.
In their classic work on floods and flood plain management, Hoyt, et. al. (1955: 138) warn that the term "flood control" implies that humans can achieve complete control over a flooding problem; that by constructing a dike or dam or by dredging a riverbed, a mercurial river can be forever subdued, and that once the river is brought under human control, it is safe to develop the flood plain. However, human efforts to force a river to behave itself have historically failed. Engineering efforts that succeed for a time will eventually encounter a flood large enough to overpower even the most carefully designed dams, dikes and drainage plans. It is, however, useful to examine the various approaches to reducing the risk of flood damage, including both engineering projects and land use regulation.
They include efforts to:
Renshaw writes that the ideal way to make decisions about flood plain management is to have access to the most complete information possible about the problem at hand; but given limitations of time and money, and the urgency of action required to address flooding problems, decisions must often be based on current and incomplete - information. (Renshaw, 1961: 37) Government agencies generally make decisions about expensive engineering projects based on the value of existing development. Such policy, however, rewards those who develop flood plains. (White, 1961: 1) When flood damage risk is high enough, government agencies step in to build dams and levees to protect public and private investment. Landowners therefore have a strong incentive to continue to build and pave. To head off financial losses on undeveloped land, landowners, developers and real estate agents may downplay the flood risk to lure buyers and investors. In addition, the sense of security generated by the construction of a dam or levee also encourages development, which exacerbates flooding and increases the cost of damage during the next flood. (Hoyt, et. al., 1955: 97)
Roder notes that once urban settlement is established on a flood plain, it's almost impossible to remove it. In the case of the Centralia/Chehalis urban area as well as that of other, smaller towns along the river, the community has already made a significant investment in buildings, streets and utilities. After a flood, such communities generally prefer to rebuild rather than relocate. (Roder, 1961: 74) Local government often prefers large engineering solutions over small, local projects because the funding is not likely to be drawn from the local budget. (U.S. Commission on the Organization of the Executive Branch of Government, 1955: 753) After all, taxing people who live beyond the boundaries of a flood plain allows those who directly benefit from the project to overlook or underestimate the actual cost, an then shift or spread the cost burden. (Renshaw, 1961: 40)
Relying on engineering solutions to address flooding is not only expensive-, it also allows communities to overlook the importance of good land use planning. But Renshaw argues that it makes more sense to tie expensive engineering projects to an area's potential for wise economic development, such as using floodprone lowlands for agriculture and other businesses that can withstand periodic inundation and do not displace large amounts of water with paved land or large buildings. (Renshaw, 1961: 37) While building and maintaining dikes, levees, dams and other
engineering measures may be necessary to reduce the cost of flood damage, Renshaw notes that the benefits of flood control should outweigh the costs. Spending too much money to reduce flood losses indicates an overvaluation of land; building a dike that costs a million dollars to protect property that is only worth half that amount doesn't make sense. (Renshaw, 1961: 25) In addition, such engineering projects are expensive to maintain. And in the end, there is no guarantee that the dike will forever prevent flood damage. As Renshaw writes, one bad investment in flood plain management should not be used to justify another. (Renshaw, 1961: 37)
A regulatory approach to improving flood plain management through changes in land use practices generally requires less public investment than initiating and maintaining major construction projects. Land use controls may include zoning laws; subdivision regulations that control the division and sale of land; building and housing codes that include elevation requirements; safety codes; and setback or encroachment regulations. According to a Federal Emergency Management Agency handbook on reducing flood losses, flood plain regulations are the most effective way to reduce the impact - and cost - of flooding. (FEMA, 1997: B-1) FEMA argues that public policy reflects the level of government commitment to reducing flood damage and provides the authority and guidance for mapping, regulations and other approaches.
To have a positive impact on flood risk, land use practices must be based on the following considerations
While the Chehalis River watershed as a whole is sparsely populated, most of the development and housing in the valley is in the flood plain, rather than in the area's rugged, forested foothills. A regulatory approach alone is probably inadequate to protect existing structures such as the homes, farms, businesses, roads and factories that have been built throughout the valley. Many new land use controls such as zoning or setbacks would likely affect only future development. More commonly, a combination of regulations or both regulations and physical projects are used to prevent flood damage and loss.
While many citizens want Lewis County government to find ways to cut flood losses, many of the same people value highly the protection of private property rights. However, when one person's land use choices - such as filling in the flood plain - causes another's property to flood, the property rights of the person whose property is damaged or destroyed have been infringed upon.
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Located about halfway between Seattle, Wash. and Portland, Ore. on Interstate 5, the main north-south interstate highway serving the West Coast, Lewis County is a land of contrasts. To the east, the rugged foothills of the Cascade Range reach to within the boundaries of Mount Rainier National Park. Small communities that are dependent largely on the declining timber industry dot the remote, forested landscape. To the southwest, the more diminutive Willapa Hills rise above the headwaters of the Chehalis River, whose broad, flat valley is characterized by quiet farmland and a few small towns. The county's two largest cities - Centralia and Chehalis - are located just east of Interstate 5, which divides the more populated western third of the county from the thickly forested eastern portion. One third of the county's 2,449 square miles is federally-owned national forest land. Approximately 60,000 lowland acres are in use as cultivated farmland. (Lewis County, 1999: 4-67)
From 1990 to 1996, the population of Lewis County grew from 59,358 to 66,700 an average growth rate of 2 percent, which is more than three times the county's average annual growth rate during the 1980s. Centralia (1998 pop. 13,340) and Chehalis (pop. 6,965) are the largest communities; the next largest town is Morton in the east part of the county, with 1,265 residents. (Lewis County 1999: 3-7) The median age of county residents has risen over the past decade, reflecting an aging population, out-migration of younger residents and in-migration of retirees. (Lewis County 1999: 3-5)
The Lewis County economy has historically been dependent on natural resources. Despite a continued downturn in the timber industry, logging and related activities still provide employment for many county residents. In recent years, the twin cities' location midway between Seattle and Portland has led to an expansion of commercial warehousing and distribution activities. A weak economy and an unemployment rate higher than the state average has resulted in Lewis County's designation as a "distressed county," eligible for special economic development assistance from state and federal government. Unemployment in Lewis County was 8.6 percent of the labor force in 1995, compared to a statewide average of 6.4 percent. The county's average annual wage declined sharply in the 1980s, from $27,617 in 1978 to a low point of $21,363 in 1991, a figure that was $5,000 less than the statewide average. The average wage in Lewis County rebounded in the mid- 1990s to more than $ 1,000 higher than its 1991 average. (Lewis County, 1999: 3-11) Still, 1993 figures indicated that 10,203, or 15.8 percent, of county residents were living in poverty. (Lewis County, 1999: 3-12)
Educational attainment in Lewis County is also below the state average. In 1990, state figures reported that 16 percent of residents age 25 and older had not graduated from high school, compared with 11 percent statewide. The percentage of Lewis County residents who have attained a bachelor's degree is half the statewide average of 16 percent.
Lewis County's rugged land is home to a rugged people. In the early years of European westward migration, this remote region located far from the meddlesome reach of government drew settlers with a strong sense of independence, individualism, patriotism and self-reliance; traits that are still borne with pride by many modern-day Lewis County residents. The county's longtime geographic and cultural isolation has bred a fundamental distrust of government, as well as resentment toward any rules or regulations that might limit how private property owners can use their land. As a result, the county has earned a reputation as a hotbed of ultraconservatism in the John Birch Society tradition. In a "statement of need" included in its 1999 Draft Comprehensive Plan, Lewis County government describes its people as follows:
"The people of Lewis County have always been known for their independence. Limited economic opportunities through government regulations forces families to rely on government programs. This creates a fundamental schism between the cultural beliefs of the citizens and the political, regulatory scheme that has been foisted upon them. Sociological research shows that this type of displacement frequently leads to higher incidents of domestic violence, youth crime, substance abuse and other social problems." (Lewis County, 1999: Appendix B, page 1)
The remainder of the "statement of need" document makes frequent reference to the need for continued protection of private property rights, the encouragement of private enterprise and the preservation of free market conditions. The county document also points to increasing government regulation as the reason for the decline of the timber, dairy and agricultural industries and the perceived decay of the social fabric of Lewis County, and advocates local control over land use decisions:
"The cultural and economic stability of Lewis County has been seriously affected by federal and state agency decisions. The ripple effect through the economy hurt all sectors of the business community. The peoples' faith was shaken, too. A natural wariness about government intervention grew to distrust." (Lewis County, 1999: Appendix B, page 17)
Public resistance toward government regulation is reflected in the 1996 statewide election, when Lewis was the only county in Western Washington with majority voter support of Referendum 48, a ballot measure designed to protect private property rights by requiring government to compensate landowners when government regulation reduces the value of their land. According to Washington Secretary of State records, the measure failed statewide by 59 percent. In conservative Lewis County, more than 65 percent of votes were cast in favor of the proposal.
In an interview during the course of our research, Lewis County Board of Commissioners Chairman Richard Graham stated that the county's approach to land use regulation is to approve only the minimum necessary. County residents have a strong interest in protecting private property rights, he said, and county government is very reluctant to approve any regulation that might infringe on those rights. Some Lewis County residents have had a rather intimidating way of showing their opposition to proposed county regulation of land use. Until recently, when the commissioners' meetings were moved to a secure hearing room, it was not uncommon for a citizen testifying against proposed land use laws to casually reveal a gun tucked in a waistband. Citizens still commonly bring their guns into the county building; however, they are now required to check them at the entrance. (Richard Graham, interview, April 17, 1999)
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The fifth amendment of the U.S. Constitution provides protection against government seizure of private property, stating "nor shall private property be taken for public use without just compensation." Property rights advocates argue that government regulation can result in a "taking" by reducing the economic value of their land. But adopting regulations aimed at reducing flooding by restricting land use is a benefit to all those who own property or live within the flood plain. In recent years, most courts have assessed the economic impact of land use regulation by determining whether the owner is left with reasonable economic use of the property Simply denying the "highest and best use" of a property does not give rise to a "taking". Many courts have upheld strict flood plain and wetlands regulations because a property owner can still use the land for farming or recreation that can produce a reasonable economic return. (Duerksen, 1995)
In evaluating a regulation under the takings clause of the U.S. Constitution, government must balance public benefit against private loss by assessing not only the economic impact on the owner but also the public purposes served by the regulation. But while taxpayers should not be forced to pay the price of unwise development due to minimalist land use regulation, it is reasonable to consider market approaches that provide incentives for property owners to pursue land use activities that minimize impact on flooding.
Aikin and McDougal argue that regulations must respond to a public need and must have public acceptance in order to be effective. Education and access to information is a key element of developing public acceptance of new land use regulations. However, enforcement authorities must also have adequate staff to handle permit applications and check for violations. (Aikin and McDougal, 1961: 172)
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To understand the development of flood management policy, it is critical to understand the role of flooding in maintaining a healthy river environment.
While floods can result in considerable damage to man-made development, they nonetheless play an important role in keeping a river system healthy. Periodic scouring of river banks and flooding of lowlands regulate plant growth and the amount of nutrients in the water. Swift currents turn over rocks in the riverbed and reconfigure the stream, "resetting" the ecosystem by allowing various species to recolonize the river environment. Wetlands fed by floods and a high water table create an important habitat for water birds, juvenile fish and other species that depend on them for food and shelter. Floods also serve as a spawning cue for some fish species. (Gordon, et. al, 1992: 19) The depth of water in a river regulates water temperature and affects light penetration, which along with turbidity influences the growth of aquatic plants. (Gordon, et. al, 1992: 2 1 ) Free-flowing rivers that circulate oxygen and carry away waste also ensure the health of fish stocks, allowing for free movement and migration as well as incubation of eggs and survival of fingerlings. Excessive siltation in slow-moving or dammed rivers can suffocate fish eggs and aquatic insect larvae and prevent aquatic plants from growing, disrupting the river's ecosystem and adversely affecting larger species such as mollusks, crabs and adult fish. (Gordon, et. al, 1992: 22)
Floods also help maintain the health of the surrounding flood plain by replenishing topsoil and nutrients; providing water to seedlings and tree species that need periodic inundation; flushing out anoxic or saline waters or fine sediments that can disrupt the river ecosystem; and helping aquatic animals move to calmer, nutrient rich shallows. (Gordon, et. al, 1992: 304)
The quality of the riparian zone alongside a river plays an important role in keeping it healthy by regulating water temperature, slowing the current, providing habitat for a variety of species and anchoring the river bank during high flow. (Gordon, et. al, 1992: 25) Fallen trees also provide shelter for aquatic species and restrict the drifting of sediments that clog fish gills and suffocate fish eggs and aquatic invertebrates. (Gordon, et. al, 1992: 26)
Urban development can have a negative effect on the hydrology of a river. The construction of roads, parking lots and buildings reduce the amount of land that can absorb water. Development therefore increases the amount of precipitation that runs off into a river, worsening flood conditions. (Gordon, et. al, 1992: 92)
The recent "threatened species" listing of Chehalis River cutthroat trout under the federal Endangered Species Act introduces greater urgency for government protection of the health of the river through sound land use regulation. Section 7 of the Endangered Species Act prohibits the federal government from any activity that may harm an endangered species. Those actions include providing federally backed loans, approving land use decisions on federal land or providing grants to local governments for public works projects. Salmon runs in the Chehalis River area may likely be added to the list of endangered species. Section 9, which prohibits the "taking" of endangered species, has provided the basis for litigation in which local governments were successfully sued for violating the Endangered Species Act by permitting or otherwise authorizing actions by third parties that result in a taking. (Strahan v. Coxe, 127 F.3d 155) (1st Cir. 1997); Loggerhead Turtle v. Volusia County Council, 896 F.Supp. 1170 (M.D. Fla. 1995) )
Due to increasing concern about the health of Northwest rivers and the fish runs they support, state and federal agencies have a strong interest in protecting the river environment. That includes allowing natural systems such as periodic inundation to continue, while still protecting the economic value of the land. If Lewis County fails to address the issue of protecting endangered species through regulatory protection of the Chehalis River watershed, the county can expect state and federal agencies to impose their own regulations.
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