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FEMA's Endangered Species Act Program Survives ‎Legal Challenge

October 29, 2014


In the latest round of litigation filed by the National Wildlife Federation (NWF) against the Federal Emergency Management Agency (FEMA), FEMA emerges victorious. NWF brought a federal lawsuit against FEMA for alleged violations of the Endangered Species Act (ESA) in the implementation of the National Flood Insurance Program (NFIP). The suit alleged a number of challenges asserting that FEMA's efforts to address endangered species in the Puget Sound area of Washington State were insufficient. The focus of the suit was primarily on the case-by-case approach FEMA took on resolving habitat issues for individual development projects, although NWF raised a variety of other issues as well, including concerns about the process for floodplain map revisions, regulation of levees, floodplain mitigation, and management. The court had previously denied a preliminary injunction requested by NWF. In the decision issued on October 23, 2014, the court entered a summary judgment in favor of FEMA on all issues.

This case stems back to an earlier litigation NWF filed against FEMA in 2003. There, the court ruled that the NFIP could have impacts on the Puget Sound Chinook salmon, a threatened species, and therefore, the court ordered FEMA to consult with the National Marine Fishery Service (NMFS) on the impacts of the flood insurance program to the listed species. A biological opinion was issued in 2008, and FEMA responded by implementing a "three door" approach to address the reasonable and prudent alternatives in the biological opinion. Under the "three door" approach, local jurisdictions could (1) adopt the model ordinance FEMA prepared; (2) follow the "checklist" approach to demonstrate that the local jurisdictions' ordinances complied with NMFS's reasonable and prudent alternatives; or (3) address new development in floodplains on a case-by-case basis that analyzed habitat impacts for each individual application. This latest federal court decision confirms that FEMA's efforts in the Puget Sound area complied with the Endangered Species Act, resolving uncertainty in the wake of the suit about whether FEMA was going to expand the scope of regulations further than the "three door" approach taken in Puget Sound. The court's ruling preserves FEMA's rules, which while difficult on developers and property owners, does allow more flexibility than the rigid analysis proposed by NWF.

Because the program that FEMA rolled out in Puget Sound withstood court scrutiny, it will likely form the blueprint for similar regulations in Oregon and the rest of Washington State, as well as other states. A 2010 lawsuit in Oregon patterned after the earlier successful NWF 2003 lawsuit was settled, and a draft biological opinion is currently in the process of being finalized to provide federal ESA regulation of floodplains in Oregon. NMFS has not committed to a date the revised Oregon BiOp will be published, but says it will happen "soon," so stay tuned.