FEMA Settles Citizen Suit; Agrees to Consult on Floodplain Program's Impacts on Listed Fish in the Delta

On March 8, 2012, the U.S. District Court for the Eastern District of California entered judgment in Coalition for a Sustainable Delta and Kern County Water Agency v. Federal Emergency Management Agency, et al., No 1:09-cv-02024 (E.D. Cal.) based on a settlement agreement in which FEMA agreed to request consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered Species Act regarding the impacts of its implementation of the National Flood Insurance Program (NFIP) on threatened and endangered species in the Sacramento-San Joaquin River Delta (Delta).

Under the NFIP, FEMA makes subsidized flood insurance available to property owners in communities that elect to participate in the NFIP by adopting floodplain management plans intended to reduce future flood risks. The citizen suit was premised on the claim that FEMA's implementation of certain discretionary aspects of the NFIP encourages placement of fill in the floodplain and construction and maintenance of levees to remove land from the floodplain, thus destroying habitat and impairing ecosystem services that listed salmon (Oncorhynchus tshawytscha), steelhead (Oncorhynchus mykiss), and delta smelt (Hypomesus transpacificus) rely upon in the Delta.

Floodplains provide side channel habitat for listed salmon and other ecosystem services, such as contributing to the productivity of various components of the food web, including phytoplankton, copepods, and other organisms.  Destruction of this habitat has been particularly harmful to the federally listed Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and delta smelt.

In the Delta, the flood zone also encompasses seasonal and perennial tidal wetlands.  According to the United States Geological Survey, more than 95 percent of those Delta wetlands have been destroyed and new development threatens the remaining tidal wetlands.  Indeed, one of the major focuses of the Bay Delta Conservation Plan (BDCP) is the restoration of tens of thousands of acres of tidal wetlands that have previously been removed from the flood zone via fill and levee construction.

The settlement comes on the heals of FEMA's largely unsuccessful motion for partial summary judgment, previously blogged about here.  It also represents the latest in a string of court orders and settlements in similar lawsuits that have been filed against FEMA in Florida, Washington, Oregon, and New Mexico in the past several years.  In each instance, FEMA either lost the lawsuit and was instructed to consult by a federal court or settled the lawsuit prior to a decision and agreed to engage in consultation.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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