Endangered Species Law & Policy

On July 13, 2010, the National Wildlife Federation and Florida Wildlife Federation filed a complaint in the United States District Court for the Southern District of Florida alleging that the Federal Emergency Management Agency's ("FEMA") failure to consult with federal wildlife agencies on the potential impacts of implementing the National Flood Insurance Program ("NFIP") in Florida is a violation of the Endangered Species Act.  Specifically, the complaint alleges that implementation of the NFIP "promotes, encourages, and influences residential and commercial development along Florida's beaches," which "impairs essential habitat functions of five species of threatened or endangered sea turtles."  The plaintiffs seek an order compelling FEMA to, among other things, consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to insure that the implementation of the NFIP does not jeopardize the threatened and endangered sea turtles.

Similar actions have been filed throughout the United States, some of which have resulted in published decisions ordering FEMA to consult with federal wildlife agencies.  For example, on April 1, 2008, the U.S. Court of Appeals for the Eleventh Circuit held that FEMA was required to consult with federal wildlife agencies regarding its administration of the NFIP because of potential impacts to various endangered and threatened species located in the Florida Keys.  Similarly, in 2004 the United States District Court for the Western District of Washington held that FEMA was required to consult with the National Marine Fisheries Service regarding its administration of the NFIP because of potential impacts to the Puget Sound chinook salmon.

In addition to the latest lawsuit filed by the National Wildlife Federation and Florida Wildlife Federation, in 2009 WildEarth Guardians filed two similar lawsuits against FEMA in the United States District Court for the District of Arizona and the United States District Court for the District of New Mexico.  That same year, a similar lawsuit against FEMA was also filed in the United States District Court for the District of Oregon, and the Coalition for a Sustainable Delta and Kern County Water Agency filed a similar lawsuit against FEMA in the the United States District Court for the Eastern District of California.  Except for the litigation filed in the District of Oregon, all of these matters are currently pending resolution; the Oregon matter is now resolved as the result of a stipulated settlement.