Channelkeeper and five other environmental groups recently reached a settlement agreement with the Federal Emergency Management Agency (FEMA) under which FEMA has agreed to expedite environmental reviews of the impacts of its National Flood Insurance Program (NFIP) on all endangered species in California.
In February 2020, a coalition of six organizations—the Ecological Rights Foundation, Our Children’s Earth Foundation, San Diego Coastkeeper, Orange County Coastkeeper, San Luis Obispo Coastkeeper, and Santa Barbara Channelkeeper—filed a lawsuit against FEMA. The lawsuit alleged that FEMA had violated the requirements of the federal Endangered Species Act (ESA) by failing to consult with wildlife agencies to ensure that the implementation of the NFIP in six counties – San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange, and San Diego Counties – does not jeopardize or destroy endangered species habitat.
Previously, FEMA’s policies incentivized infilling of critical endangered species habitat. Landowners seeking to construct buildings in flood plains (i.e., low-lying areas near waterways) are required to purchase flood insurance. To exempt themselves from flood insurance requirements, landowners were able to petition FEMA for revisions of the official flood plain maps. To move a property out of the floodplain, landowners could propose adding layers of fill to the land to artificially raise the elevation of the property. In doing so, critical endangered species habitat was sometimes destroyed. Until now, FEMA has not been required to consider the impacts that its Flood Insurance Program has on endangered species. In Santa Barbara County alone, FEMA has implemented at least 528 revisions to the 100-year floodplain maps.
Given the substantial overlap between the 100-year floodplain and designated critical habitat for endangered species, the six organizations alleged in their lawsuit that a substantial number of map revisions has occurred within areas throughout California that are designated as critical habitat for ESA-listed species and therefore, have adversely impacted those species or critical habitats. The coalition of environmental organizations requested that FEMA conduct a Biological Evaluation with the U.S. Fish and Wildlife Service to develop a new process that accounts for endangered species.
Under the settlement agreement, FEMA will expedite its endangered species review of the NFIP’s effect on all endangered species in California. In particular:
- Within 36 months, FEMA will complete its Biological Evaluation of the potential effects of FEMA’s administration of the NFIP on two species of anadromous fish within the Six Counties: South-Central California Coast steelhead (Oncorhynchus mykiss) and Southern California Coast steelhead (Oncorhynchus mykiss).
- Within 30 days of the completion of this Biological Evaluation, FEMA will submit a written request to the National Marine Fisheries Service (“NMFS”) for initiation of informal or formal ESA consultation as necessary.
- In addition, within 60 months, FEMA will complete a Biological Evaluation of the potential effects of FEMA’s administration of the NFIP on all remaining ESA-listed species throughout California that may be affected by those activities.
- Within 30 days of the completion of this additional Biological Evaluation, FEMA will submit a written request to NMFS and the U.S. Fish and Wildlife Service (USFWS) for initiation of informal or formal ESA consultation as necessary.
This review effort should lead NMFS and USFWS to impose new species protective measures on the NFIP, a program which has had the federal government essentially subsidizing the destruction of endangered species habitat with little oversight or review.
To provide interim protections for endangered species while these activities are taking place, FEMA has further agreed that it will not issue any Letters of Map Revision based on Fill (“LOMR-F”) or Conditional Letters of Map Revision based on Fill (“CLOMR-F”) in the Six Counties until the earlier of the initiation of the ESA section 7 consultations has occurred (and FEMA has developed interim protective measures under ESA section 7(d)), or five years has elapsed. Notably, LOMR-Fs and CLOMR-Fs are two of the biggest NFIP-related actions that are likely to adversely impact endangered species.
The settlement agreement also requires FEMA to provide informational updates to facilitate their oversight of FEMA’s compliance with this agreement.