National Wildlife Federation v. Fema

Decision Date15 November 2004
Docket NumberNo. C03-2824Z.,C03-2824Z.
Citation345 F.Supp.2d 1151
PartiesNATIONAL WILDLIFE FEDERATION AND PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant, and National Association of Home Builders, et al., Intervenors-Defendants.
CourtU.S. District Court — Western District of Washington

Jan Erik Hasselman, National Wildlife Federation (Seattle), Seattle, WA, John F Kostyack, National Wildlife Federation, Mary Randolph Sargent, National Wildlife Federation, Washington, DC, for National Wildlife Federation, Public Employees for Environmental Responsibility, Plaintiffs.

Carter Howell, U.S. Department of Justice, Wildlife and Marine, Resources Section, Washington, DC, Brian C Kipnis, U.S. Attorney's Office (SEA), Seattle, WA, for Federal Emergency Management Agency, Defendant.

Eric S Merrifield, Perkins Coie, Galen G B Schuler, Perkins Coie, Mark W Schneider, Perkins Coie, Seattle, WA, for National Association of Home Builders, County of Mason, Intervenors Defendants.

ORDER

ZILLY, District Judge.

This matter comes before the Court on cross-motions for summary judgment. For the reasons outlined herein, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' Motion for Summary Judgment, docket no. 30, GRANTS IN PART and DENIES IN PART Federal Defendant's Cross-Motion for Summary Judgment, docket no. 36, and GRANTS IN PART and DENIES IN PART Intervenor Defendants' Motion for Summary Judgment, docket no. 37.

I. BACKGROUND
A. The Parties and the Present Action

The National Wildlife Federation ("NWF") and Public Employees for Environmental Responsibility ("PEER") (collectively "Plaintiffs") bring this Endangered Species Act ("ESA") lawsuit against the Federal Emergency Management Agency ("FEMA"), alleging that FEMA has violated Section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), by not consulting with the National Marine Fisheries Service ("NMFS") on the impacts of the National Flood Insurance Program ("NFIP") on the Puget Sound chinook salmon, a threatened species.1 Plaintiffs contend that FEMA's implementation of the NFIP constitutes an agency action that may affect the Puget Sound chinook salmon because some aspects of the NFIP encourage development in the floodplains, and the floodplains of the Puget Sound provide important habitat for the salmon. Plaintiffs seek three forms of relief: (1) a declaration that FEMA violated Section 7(a)(2) of the ESA, (2) an injunction requiring FEMA to initiate consultation with NMFS on the NFIP's impacts on the Puget Sound chinook salmon,2 and (3) the Court's retention of jurisdiction over the matter to ensure FEMA's proper implementation of the ESA and governing regulations.

The following entities have intervened as defendants in the action: the National Association of Home Builders ("NAHB"), Skagit County, Island County, the Washington Association of REALTORS, the Home Builders Association of Kitsap County, the Skagit Island Counties Builders Association, and Piazza Construction, Inc. (collectively "Intervenors").

B. The National Flood Insurance Program ("NFIP")

FEMA is the federal agency charged with administering the NFIP, a federal flood insurance program. Congress created the NFIP in 1968 by the National Flood Insurance Act ("NFIA"), 42 U.S.C. §§ 4001 et seq., later amended it by the Flood Disaster Protection Act of 1973, and again amended it in 1994 by the National Flood Insurance Reform Act. AR 116 at 2-4. The purposes of the flood insurance program are to make flood insurance "available on a nationwide basis through the cooperative efforts of the Federal Government and the private insurance industry" and to base flood insurance "on workable methods of pooling risks, minimizing costs, and distributing burdens equitably among those who will be protected by flood insurance and the general public." 42 U.S.C. § 4001(d). Congress further stated that other purposes of the federal flood insurance program are to:

(1) encourage State and local governments to make appropriate land use adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses,

(2) guide the development of proposed future construction, where practicable, away from locations which are threatened by flood hazards,

(3) encourage lending and credit institutions, as a matter of national policy, to assist in furthering the objectives of the flood insurance program,

(4) assure that any Federal assistance provided under the program will be related closely to all flood-related programs and activities of the Federal Government, and

(5) authorize continuing studies of flood hazards in order to provide for a constant reappraisal of the flood insurance program and its effect on land use requirements.

42 U.S.C. § 4001(e). The NFIA states that FEMA "shall consult with other departments and agencies of the Federal Government ... in order to assure that the programs of such agencies and the flood insurance program authorized under this chapter are mutually consistent." 42 U.S.C. § 4024.

The three basic components of the NFIP are: (1) the identification and mapping of flood-prone communities, (2) the requirement that communities adopt and enforce floodplain management regulations that meet certain minimum eligibility criteria in order to qualify for flood insurance, and (3) the provision of flood insurance. AR 116 at 4. As part of the NFIP, FEMA also implements a Community Rating System ("CRS"), which provides discounts on flood insurance premiums in those communities that establish floodplain management programs that go beyond NFIP's minimum eligibility criteria. Id. at 31.

Plaintiffs contend that the ESA requires FEMA to consult with NMFS regarding the potential impact of each of these aspects of the NFIP on the Puget Sound chinook salmon. Defendants and Intervenors contend that such consultation is not required because Plaintiffs do not have standing, FEMA does not have discretion to implement measures under the NFIP that inure to the benefit of Puget Sound chinook salmon, and there is no reason to believe that the NFIP may affect Puget Sound chinook salmon.

1. Identification and Mapping of Flood-Prone Communities

Congress authorized FEMA "to identify and publish information with respect to all flood plain areas, including coastal areas located in the United States, which have special flood hazards" and "to establish or update flood-risk zone data in all such areas, and make estimates with respect to the rates of probable flood caused loss for the various flood risk zones for each of these areas." 42 U.S.C. § 4101(a)(1), (a)(2).

FEMA assesses the flood risk within each flood-prone community3 by conducting a Flood Insurance Study (a "flood study") that typically employs the use of computer and engineering models and statistical techniques. AR 116 at 6-7. FEMA presents the results of a flood study on a map referred to as a Flood Insurance Rate Map (a "flood map") and also in a narrative format, both of which are subject to public review and an administrative appeals process for any owner or lessee of real property within the community. Id. at 7-8. The flood risk information presented on a flood map and in a flood study report forms the technical basis for the administration of the NFIP. Id. at 9. For example, a flood map's identification of a property as a Special Flood Hazard Area ("SFHA"), which is land within the floodplain of a community subject to a one percent or greater chance of flooding in any given year, triggers a Mandatory Flood Insurance Purchase Requirement under the NFIP. Id. at 3, 9.

The NFIA requires FEMA to review flood maps at least once every five years to assess the need to update all floodplain areas and flood risk zones. 42 U.S.C. § 4101(e), (f)(1). FEMA has promulgated regulations governing the development and revision of flood maps. See e.g., 44 C.F.R. §§ 65.5, 65.6; 44 C.F.R. pt. 72. The boundaries of a SFHA on a flood map can be revised, for example, following man-made alterations within the floodplain, such as the placement of fill. 44 C.F.R. §§ 72.1, 72.2.

2. Minimum Eligibility Criteria

Congress has authorized FEMA to "develop comprehensive criteria designed to encourage ... the adoption of adequate State and local measures" that will:

(1) constrict the development of land which is exposed to flood damage where appropriate,

(2) guide the development of proposed construction away from locations which are threatened by flood hazards,

(3) assist in reducing damage caused by floods, and

(4) otherwise improve the long-range land management and use of flood-prone areas.

42 U.S.C. § 4102(c) (referred to herein as the "minimum eligibility criteria"). In 1976, FEMA promulgated regulations establishing the minimum eligibility criteria for flood-prone areas, mudslide areas and flood-related erosion areas. 44 C.F.R. §§ 60.3-60.5. The criteria governing flood-prone areas are currently designed to reduce threats to lives and to minimize damages to structures and water systems during flood events, see 44 C.F.R. § 60.3; AR 116 at 2, not to protect aquatic habitat, imperiled species, or other environmental values.

Community participation in the NFIP is voluntary, and FEMA does not have any direct involvement in the administration of local floodplain management ordinances. AR 116 at 12. However, communities must adopt regulations consistent with FEMA's minimum eligibility criteria in order to be enrolled in the NFIP. 42 U.S.C. § 4012(c)(2); cf. 42 U.S.C. § 4022(a)(1) (prohibiting federal flood insurance to communities that have not complied with the criteria).

3. Provision of Flood Insurance

Congress authorized FEMA "to establish and carry out a national flood insurance program which will enable interested persons to purchase insurance against loss resulting from physical damage to or loss of real property or personal property related thereto arising...

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