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Endangered Species Law and Policy

District Court Poised to Decide Whether to Enjoin Sale of Flood Insurance in Puget Sound

Posted in Litigation

On Tuesday, March 27, the United States District Court for the Western District of Washington will hear argument in a suit filed by National Wildlife Federation against the Federal Emergency Management Agency (FEMA) for failure to fully implement the reasonable and prudent alternative (RPA) that accompanied the National Marine Fisheries Service’s (NMFS) biological opinion regarding the impacts of the FEMA’s National Flood Insurance Program (NFIP) on listed species in the Puget Sound.

In 2004, the United States District Court for the Western District of Washington ruled (pdf) that FEMA must initiate consultation with NMFS on the impacts of its implementation of the NFIP on Puget Sound Chinook salmon.  In response, FEMA prepared a biological evaluation, which concluded that the NFIP is not likely to adversely affect listed salmon or steelhead species in the state of Washington.  In a biological opinion (pdf) issued in 2008, NMFS disagreed, concluding that "the proposed action is likely to jeopardize the continued existence of Puget Sound Chinook salmon, Puget Sound steelhead, Hood Canal summer-run chum salmon, and Southern Resident killer whales, and is likely to adversely modify Puget Sound Chinook salmon, Hood Canal summer-run chum salmon, and Southern Resident killer whale critical habitat."  Together with the jeopardy and adverse modification determinations, NMFS issued a RPA that included seven separate elements.

In its motion (pdf), National Wildlife Federation alleges the FEMA failed to implement six of the seven components of the RPA that accompanied the biological opinion.  NWF argues that "seven years after this Court found FEMA in violation of the ESA, and three years after NMFS found the NFIP was causing jeopardy, FEMA continues to implement the NFIP mostly unchanged."  Numerous local jurisdictions have intervened in the lawsuit, and an advocacy group for property owners filed an amicus brief (pdf) opposing plaintiff’s motion.  At the same time that these groups are defending FEMA’s compliance with the biological opinion, they are critical of the RPA, for example, arguing that it has inherent flaws and its implementation would lead to "unnecessary over-regulation of floodplain areas."

Beyond Washington, where this case is unfolding, FEMA continues to resist the legal obligation to consult under section 7(a)(2) of the Endangered Species Act despite having lost or settled numerous lawsuits for failure to consult.  In addition, the agency has made no meaningful effort to meet its obligations under section 7(a)(1) of the Act.  Instead, even under the Obama Administration, FEMA has purposefully disregarded its obligation to comply with various federal laws, including the Endangered Species Act and Freedom of Information Act.