Federal Emergency Management Agency –
The National Flood Insurance Program and Endangered Species
As the U.S. Supreme Court pointed out in 1989, Congress enacted FOIA to "permit access to official information long shielded unnecessarily from public view and … to create a judicially enforceable public right to secure such information from possibly unwilling official hands.’" John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). EcoRights’ FOIA campaign to obtain information from the Federal Emergency Management Agency (FEMA) concerning the agency's National Flood Insurance Program underscores how wise Congress was to create this right, and how important it is to fight for this right in court to preserve transparency in our democracy, especially now.
FEMA’s National Flood Insurance Program allows developers to obtain flood insurance for buildings built within floodplains across United States. Under current law, it is illegal for a federally insured bank to lend a mortgage for properties located within floodplains without flood insurance. Moreover, flood insurance is generally unavailable from private companies (for understandable reasons) for properties located within floodplains. Thus, the National Flood Insurance Program is essential for continued development of floodplains. Much of the nation’s wetlands and riparian habitat are located within floodplains. These ecologically rich zones are also home to many of the country's endangered species. Thus, the National Flood Insurance Program, by providing insurance (at discounted rates from the true market value of the insurance) for development that would otherwise be uninsurable, amounts to federal subsidy of destruction of endangered species habitat nationwide.
The Endangered Species Act offers potential recourse to have FEMA modify its implementation of the National Flood Insurance Program so that the program does not jeopardize the survival and recovery of endangered species. The Endangered Species Act (section 7) requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service and receive their written advice on such measures (in the form of what are known as "biological opinions") before taking actions which may adversely affect endangered species. FEMA would then generally be obligated to follow this advice. Except where it has been sued by environmental organizations, FEMA has refused to consult with the USFWS or NMFS under the Endangered Species Act concerning how the National Flood Insurance Program is adversely impacting endangered species.
As EcoRights discovered via its FOIA requests, NMFS has repeatedly implored FEMA that the National Flood Insurance Program is adversely impacting endangered species and that FEMA must consult with NMFS under the Endangered Species Act to receive NMFS advice on how the National Flood Insurance Program should be altered to protect these species. FEMA in turn has repeatedly rebuffed NMFS’s request for such consultation while continuing to drag its heels concerning fundamental changes to the National Flood Insurance Program to benefit endangered species. EcoRights obtained some documents from NMFS documenting this internal interagency struggle between FEMA and NMFS, but likely pressured by FEMA, NMFS then sought to get these documents back from EcoRights. EcoRights won an important victory in court that repudiated NMFS’s attempts to get these apparently embarrassing documents back. Ecological Rights Foundation v. Federal Emergency Management Agency, No. 15-cv-04068-DMR, 2017 U.S. Dist. LEXIS 1054 (N.D. Cal., Jan. 3, 2017). EcoRights further pressed its attempt to get to the bottom of the matter with FOIA requests to FEMA as well concerning the agency's implementation of the National Flood Insurance Program and its communications back and forth with NMFS. FEMA also fought these FOIA requests, seeking to redact thousands of pages of pertinent documents including those that addressed the internal fight between NMFS and FEMA over whether FEMA has Endangered Species Act obligations with respect to its implementation of the National Flood Insurance Program. EcoRights prevailed in court over FEMA’s attempt to shield from public view its decisions to thwart NMFS demands for Endangered Species Act consultation. A federal judge in EcoRights’ citizen suit ordered FEMA to release all of the documents that the agency had attempted to hide concerning its implementation of the National Flood Insurance Program and its effect on endangered species. Ecological Rights Foundation v. Fed. Emergency Mgmt. Agency, No. 16-05254, 2017 U.S. Dist. LEXIS 197451 (N.D. Cal. Nov. 30, 2017).
EcoRights has learned a great deal concerning the National Flood Insurance Program and what can be done to improve it in its review of the thousands of pages of documents it has obtained from FEMA and NMFS via FOIA. EcoRights has shared these documents and lessons learned with other environmental organizations, including the Natural Resources Defense Council, Our Children's Earth Foundation, and Humboldt Baykeeper. EcoRights is continuing to work with other environmental organizations on attempts to improve FEMA’s implementation of the National Flood Insurance Program in a manner protective of endangered species. It will require efforts from many concerned groups and citizens to corral the program so that it does not continue to be a vehicle for promoting the destruction of endangered species habitat. Efforts in court by various citizen groups have led to good court decisions that FEMA’s National Flood Insurance Program does adversely impact endangered species and that FEMA must consult with NMFS and/or the USFWS before continuing to proceed with the program in certain parts of the country. See National Wildlife Federation v. Federal Emergency Management Agency, 345 F. Supp. 2d 1151 (W.D. Wash. 2004); Coalition for Sustainable Delta v. Federal Emergency Management Agency, 812 F. Supp. 2d 1089 (E.D. Cal. 2011); Florida Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008).
Any persons or organization interested in learning more about the National Flood Insurance Program and what can be done to ensure that it does not become a vehicle for the extinction of endangered species nationwide can contact Ecorights’ counsel Christopher Sproul at: [email protected].
Copies of the documents EcoRights has obtained from NMFS and FEMA via FOIA are available HERE:
