In a victory for your association, United States District Court Judge Ricardo Martinez denied a National Wildlife Federation (NWF) request for a Preliminary Injunction against the Federal Emergency Management Agency (FEMA) from issuing flood insurance policies.
Your association, with backing from the National Association of Home Builders, supported a coalition that participated as an intervenor in the case, known as Property Owners for Sensible Floodplain Regulations. Several Puget Sound area cities also intervened in the case.
In denying the request, Judge Martinez wrote "Plaintiff has not provided any specific evidence that jeopardy to listed species will result from FEMA's updated National Flood Insurance Program."
NWF charged that FEMA had failed to implement critical aspects of its reasonable and prudent alternative related to the National Flood Insurance Program (NFIP) and was therefore violating the Endangered Species Act. NWF was attempting to prevent FEMA from providing flood insurance for any new development and from processing certain floodplain map changes until new rules are implemented to NWF's liking. Had the request been granted, approximately 75 local jurisdictions throughout Western Washington would have been affected.
REALTORS Go To Federal Court To Protect Local Flood Insurance (April 13, 2012)
The Association of REALTORS® has gone to federal court to fight a request from the National Wildlife Federation that FEMA be prohibited from selling flood insurance for the next 10 years in approximately 70 river-valley cities in the Puget Sound region, including many King County cities!
Environmentalists say they want the federal courts to issue an injunction in order to protect species that have been listed under the Endangered Species Act. United States District Judge Ricardo Martinez heard argument on the National Wildlife Federation’s motion for a preliminary injunction on Tuesday, March 27th.
The flood insurance in question is sold as part of the National Flood Insurance Programwhich FEMA administers. FEMA is the major seller of flood insurance in the region with about 42,000 policies in-place, and provides coverage that is generally not available from private insurance carriers.
Halting the sale of flood insurance (as the National Wildlife Federation has requested) would harm both new home construction, and the region’s economic recovery. Significant portions of King County’s future housing and job growth is anticipated to occur on the valley floor along Hwy 167. Cities such as Tukwila, Renton, Kent and Auburn have planned for growth in those locations in their local comprehensive plans, shoreline master programs and development regulations. If that housing doesn't get built as the economy improves, it will affect cities throughout King County and the region.
The REALTORS® filed an amicus (Friend of The Court) brief in the U.S. District Court for Western Washington as part of a coalition called Property Owners for Sensible Flood Plain Regulations (POSFR). The coalition also includes BOMA, Masterbuilders and property owners.
Seattle attorney Molly Lawrence, who represents Washington REALTORS® and the other members of POSFR, advised the federal court the National Wildlife Federation was not entitled to an injunction because it had failed to prove a likelihood of irreparable harm to ESA-listed species. In addition, said Lawrence, the Federation’s motion requesting the injunction was devoid of information examining the effects of how FEMA is currently implementing the flood insurance program.
FEMA noted it has made numerous changes regarding the insurance program, and drafted new rules for 122 municipalities in King, Pierce, Snohomish, Skagit, Kitsap, Whatcom, Jefferson, Thurston and Clallam counties.
The REALTORS® attorney also argued the National Wildlife Federation had failed to account for the numerous state and local regulations which ensure development activity in the floodplain will not harm listed species.
Moreover, said the REALTORS®, the federal court should reject the request for an injunction because the National Wildlife Federation had failed to ask for narrowly tailored relief as required by federal law, and then only in areas where it can actually demonstrate irreparable harm.
If granted, the preliminary injunction could halt new development in floodplain areas in dozens of Puget Sound Region communities. A group of 16 cities has intervened in the case to also oppose the National Wildlife Federation, including Tukwila, Renton, Kent, Auburn, Lake Forest Park, Federal Way, Arlington, Burlington, Everett, Mount Vernon, North Bend, Orting, Port Angeles, Puyallup, Snoqualmie and Sultan.
The response the cities filed with the federal court regarding the claims of the National Wildlife Federation was blunt and direct:
"At its core, this case is about proof - or, more specifically, the lack of it. Plaintiff National Wildlife Federation ("NWF") seeks a preliminary injunction that, it admits, is aimed at stopping allnew development in the floodplain, irrespective of the development's actual impact upon listed salmonids species or their critical habitat...NWF has not supplied evidence of any concrete harm or jeopardy to fish or fish habitat arising from any particular development, or even any evidence of concrete harm or jeopardy arising cumulatively from the approved and insured developments. NWF's failure to supply proof is fatal to every aspect of its motion."
So, why did the REALTORS® have to go to court at this time to try to protect homeowners and ensure the continued availability of flood insurance under the National Flood Insurance Program (NFIP) that is administered by FEMA?
In 2003 the National Wildlife Federation sued FEMA. The environmental group wanted the National Flood Insurance Program operated by FEMA to be covered by the federal Endangered Species Act (ESA).
The Federation claimed the flood insurance program allowed construction in floodplain areas that could jeopardize species which have been listed for protection under the ESA, including Puget Sound salmon and steelhead, Hood Canal summer-run chum salmon, Lake Ozette sockeye salmon and Southern Resident killer whales. Surprisingly, the federal court agreed to require review of the program under the ESA. As a result, FEMA was required to do an environmental assessment under the “consultation” requirements of the Endangered Species Act.
FEMA’s environmental assessment concluded that even though the flood insurance program may have some affect on floodplain activities, the program was not placing threatened or endangered species in “jeopardy.” The National Marine Fisheries Service disagreed with FEMA’s conclusion and in 2008 issued its own Biological Opinion, or “BiOp.” The BiOp claimed the National Flood Insurance Programplaces threatened or endangered species in jeopardy. That, in-turn, triggered a requirement in the Endangered Species Act that within two years FEMA must address the concerns identified in the BiOp.
Unsatisfied with FEMA’s response, the National Wildlife Federation filed this second lawsuit, together with a motion for a preliminary injunction asking the federal courts to (1) prevent FEMA from selling flood insurance in portions of the Puget Sound region, and (2) stop processing certain revisions to floodplain maps.
A decision on the environmentalists' motion for an injunction is expected from U.S. District Judge Ricardo Martinez in about a month.
For More Information: National Wildlife Federation v. FEMA, United States District Court for the Western District of Washington (2:11-cv-02044-RSM). Click Here