Endangered Species Law & Policy

On January 20, 2011, the Federal Emergency Management Agency ("FEMA") proposed (pdf) to settle another lawsuit challenging its implementation of the National Flood Insurance Program ("Program"), agreeing to consult with the U.S. Fish & Wildlife Service and National Marine Fisheries Service (the "Wildlife Agencies") regarding the Program's potential impacts on five species of sea turtles listed under the federal Endangered Species Act. 

The Program, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized rate.  See FEMA's Program Description (pdf).  Plaintiffs, the National Wildlife Federation and Florida Wildlife Federation, filed a complaint in July of last year alleging that FEMA violated Section 7 of the Endangered Species Act by failing to consult with the Wildlife Agencies regarding the Program's potential impacts on the loggerhead sea turtle, green sea turtle, hawksbill sea turtle, leatherback sea turtle, and Kemp's ridley sea turtle.  Section 7 requires federal agencies to, among other things, consult with the Wildlife Agencies to ensure that any action "authorized, funded, or carried out" by the agency is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical habitat]." 

Under the terms of the settlement agreement, FEMA has 15 days from the entry of a court order approving the proposed settlement to send the Wildlife Agencies a written request to initiate informal consultation.  Further, within 11 months of the entry of a court order, FEMA is required to prepare and submit a biological assessment to the Wildlife Agencies, along with a written request  to initiate formal consultation.

As noted in our post of July 14, 2010, similar lawsuits are currently pending in the the District of New Mexico, the Eastern District of California, and the District of Arizona.