Endangered Species Law & Policy

On February 11, 2011, the United States District Court for the District of New Mexico approved a stipulated settlement agreement (pdf) between the Federal Emergency Management Agency ("FEMA") and WildEarth Guardians, obligating FEMA to, among other things, request that the U.S. Fish & Wildlife Service ("Service") initiate formal consultation on the impacts of the National Flood Insurance Program (the "NFIP") in New Mexico.

The NFIP, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized rate.  In 2001, the Sierra Club, Southwest Environmental Center, and WildEarth Guardians, formerly known as Forest Guardians, filed a lawsuit (pdf) in federal court alleging that FEMA was violating section 7 of the federal Endangered Species Act ("ESA") by failing to consult on the impacts of the NFIP on ESA-listed species.  In 2002, the parties executed a stipulated settlement agreement (pdf) obligating FEMA to, among other things, prepare and submit a biological assessment to the Service on the effects of the NFIP and initiate consultation with the Service "as expeditiously as possible."  In 2009, WildEarth Guardians filed a second lawsuit (pdf) seeking to enforce the terms of the 2002 settlement agreement, and FEMA's compliance with section 7 of the ESA.  Section 7 requires a federal agency to, among other things, consult 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 2011 settlement agreement, FEMA has 365 days to send the Service a written request to initiate formal consultation. 

This is the second ESA lawsuit that FEMA has settled this year.  See our post of January 28, 2011.  Two similar lawsuits are currently pending in the District of Arizona and the Eastern District of California.  See our post of July 14, 2010.