Endangered Species Law & Policy

On October 23^rd the Federal District Court for the Western District of Washington upheld the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program’s (NFIP) compliance with a 2008 reasonable and prudent alternative (RPA) stemming from previous litigation.  The National Wildlife Federation initially challenged the program for its impacts on endangered Pacific Northwest Chinook salmon, Puget Sound steelhead, Hood Canal chum salmon, and Southern Resident killer whales in National Wildlife Federation v. Federal Emergency Management Agency, 345 F. Supp. 2d 1151 (W.D. Wash. 2004).  In the 2004 decision, the court held that FEMA was required to engage in Endangered Species Act (ESA) consultation with the National Marine Fisheries Service (NMFS).  In 2008, NMFS released a biological opinion finding that the NFIP was likely to jeopardize these endangered and threatened species, and would destroy or adversely modify critical habitat for both species of salmon and the Southern Resident killer whales.  The 2008 biological opinion also provided an RPA, consisting of seven elements.

The basis of this lawsuit was FEMA’s alleged failure to comply with the RPA.  In its 2011 complaint, the National Wildlife Federation claimed that FEMA failed to ensure against jeopardy for protected salmon and orcas through its implementation of RPA elements.  After hearing arguments on cross motions for summary judgment, the District Court granted FEMA’s cross-motion for summary judgment and denied the National Wildlife Federation’s motion for summary judgment.

Plaintiffs challenged FEMA’s implementation of the RPA on five separate grounds, alleging that FEMA’s implementation was inadequate to prevent or minimize degradation of channel and floodplain habitat and that FEMA had altogether failed to implement certain RPA elements.  FEMA asserted that it either had complied fully with the RPA or lacked the statutory authority to do so.  Plaintiffs argued that FEMA failed to ensure that each project it permitted under the NFIP complied with the ESA and failed to assess the cumulative impacts of those projects.  Plaintiffs also alleged that FEMA failed to modify its mapping methods, failed to address levee vegetation and construction elements of the RPA, and failed to adequately address floodplain mitigation activities and adaptive management of the program.  The court analyzed each claim separately under the Administrative Procedures Act's "arbitrary and capricious" standard.

Upholding FEMA’s implementation, the court made a number of findings and ultimately declined to find FEMA’s actions arbitrary and capricious.  The Court found that FEMA was given wide authority and little guidance on how to address project permitting and had adopted proper guidelines for minimum criteria to allow a project-by-project permitting scheme.  This scheme requires that permit applicants demonstrate ESA compliance in order to participate in the NFIP.  The court found that revision requests for NFIP maps did not need to again address ESA compliance when the permit application had done so.  Modification of FEMA’s mapping procedures was found to be outside of FEMA’s authority and subject to the Biggert-Waters Act.  The Biggert-Waters Act created a technical mapping advisory committee specifically to address NFIP mapping reform, removing FEMA’s ability to initiate independent reforms.  As to the remaining claims, the court found that FEMA complied with obligations to advise, assist, and encourage local communities to satisfy ESA requirements, but that FEMA could not implement part of the RPA which dealt with an Army Corps of Engineers program.  On each of these bases, the court upheld FEMA’s implementation as consistent with the RPA.