FEMA's Administration of the National Flood Insurance Program Not Exempt from Section 7 Consultation
Posted in Litigation

On August 19, 2011, the U.S. District Court for the Eastern District of California denied in part and granted in part FEMA's motion for partial summary judgment (PDF) in the latest in a series of lawsuits filed against FEMA for failing to consult under Section 7 of the Endangered Species Act (ESA) regarding the impacts of its administration of the National Flood Insurance Program (NFIP) on listed species that depend upon floodplains.

In their first claim for relief in Coalition for a Sustainable Delta v. Federal Emergency Management Agency, No. 09-2024 (E.D. Cal.), the plaintiffs allege that FEMA's administration of the NFIP in participating communities in and upstream of the Sacramento-San Joaquin Delta (Delta) may affect three listed salmonid species and the delta smelt.  According to plaintiffs, FEMA's administration of the NFIP encourages development in and adjacent to the 100-year floodplain -- an area that includes designated critical habitat for listed salmonids, and that provides water quality benefits that may affect the salmon and smelt.  In addition, plaintiffs allege that FEMA has the discretion to modify its ongoing implementation of the NFIP in the Delta communities to benefit the listed species.  Thus, FEMA is required to enter consultation with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (Services).

Among other things, FEMA argued that it does not retain discretion to modify its implementation of its floodplain mapping under the NFIP, and that issuing Letters of Map Revision based on placement of fill (LOMR-Fs) cannot have any impact on listed species.

The court rejected these arguments, holding that FEMA's own alteration of how it implements the NFIP in the Puget Sound region in Washington State for the benefit of listed salmonids demonstrates FEMA's ongoing discretionary involvement and control, and holding that other evidence in the record shows there is a question of material fact whether issuing LOMR-Fs may affect listed species or their critical habitat in the Delta by encouraging development that alters the regulatory, 100-year floodplain.  Thus, the court denied, in part, FEMA's motion for partial summary judgment.

The court, however, found the reasoning in National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004) persuasive on the question whether FEMA has the discretion to withhold or condition issuance of flood insurance policies to applicants in participating communities that have already met certain minimum eligibility requirements.  Thus, the court granted FEMA's motion in this limited respect, holding that by statute, FEMA must issue flood insurance to persons in eligible participating communities.

Nevertheless, the court's rejection of FEMA's other legal arguments leaves open the possibility that FEMA will be required to consult with the Services with respect to its implementation of the NFIP in the Delta communities.

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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