Major Legal Victory On Flood Insurance

There is great news for King County REALTORS® from the Federal District Courthouse in Seattle. The federal court has refused to shut down the National Flood Insurance Program that provides the insurance which lenders require for new construction of homes and condos on the valley floor in Tukwila, Renton, SeaTac, Kent, Auburn, Pacific, Fife, Puyallup and Sumner.

 

Judge Ricardo S Martinez On October 24th Judge Ricardo S. Martinez issued his final order (verdict) favoring REALTORS® and rejecting the claims of The National Wildlife Federation (NWF) which was seeking an junction that would have effectively eviscerated the National Flood Insurance Program (NFIP), not only here in King County and its 39 cities, but also in 82 other cities and counties in Northwest Washington.

The National Flood Insurance Program (NFIP) administered by FEMA is the primary source of property insurance for homes and businesses in the floodplains which are present on much of the valley floor properties along Hwy 167 between Renton/Tukwila on the north, and Puyallup/Sumner on the south. Without the NFIP it would be impossible to get a mortgage or primary property insurance for properties in a flood plain, especially new construction. That makes this legal victory even more important for REALTORS® because valley cities have planned to accommodate much of their new housing and employment growth on the valley floor.

The REALTORS® were active participants in the litigation as members of the coalition named POSFR – Property Owners for Sensible Flood Plain Regulations. The Association of REALTORS® had helped to create and fund the Coalition which intervened in the litigation. Jeanette McKague was the REALTORS® primary point of contact for the Coalition in connection with the case that was heard by Judge Martinez in the Seattle courthouse of the United States District Court for the Western District of Washington.

Seattle attorney Molly Lawrence with the Van Ness Feldman law firm – who has been independently rated as a “Super Lawyer” and who is arguably the most highly skilled and knowledgeable private sector attorney in the Northwest on floodplain related issues – represented POSFR as successful intervenors in the litigation. The case had been pending in federal court in Seattle since 2011.

In reporting on the victory attorney Molly Lawrence stated, in part:

Judge Martinez granted the Federal Emergency Management Agency’s Motion for Summary Judgment affirming FEMA’s approach to implementing the 2008 Biological Opinion issued by the National Marine Fisheries Service (NMFS) regarding the effects of the National Flood Insurance Program on threatened and endangered species and critical habitat in the Puget Sound region (NFIP BiOp).

This litigation dates back to 2004 when The National Wildlife Federation first sued FEMA for failing to consult in Washington State regarding the effects of the NFIP on threatened and endangered species and their habitat. Judge Zilly (Western District of Washington) agreed and ordered FEMA to initiate consultation under Section 7 of the Endangered Species Act (ESA) with the National Marine Fisheries Service regarding several components of the NFIP, namely its mapping program, minimum development standards, and Community Rating System.

That consultation resulted in NMFS’s issuance of the NFIP Biological Opinion in September 2008, which concluded that FEMA’s then-current approach to implementing the NFIP was jeopardizing the continued existence of several endangered salmon species and killer whales. As part of that NFIP BiOp, NMFS proposed a seven element “Reasonable and Prudent Alternative” (RPA) outlining how FEMA could change its implementation of the NFIP to avoid its impacts on threatened and endangered species and their critical habitat.

Current Litigation

After three years of negotiations between NMFS and FEMA regarding the meaning of those Reasonable and Prudent Alternatives, NWF again sued FEMA in the fall of 2011, this time asserting that FEMA had failed to implement the Reasonable and Prudent Alternatives as written and consequently was continuing to jeopardize threatened and endangered species and their habitat. In the spring of 2012, NWF sought an order enjoining FEMA from selling flood insurance in the Puget Sound region until FEMA had more fully implemented the Reasonable and Prudent Alternatives. Judge Martinez denied that request on the grounds that NWF had failed to demonstrate any irreparable harm to the threatened and endangered species or habitat.

Thereafter, NWF and FEMA (supported by the intervenors) filed cross motions for summary judgment. On Friday, (October 24th), Judge Martinez affirmed FEMA’s approach and rejected NWF’s challenge.

It remains to be seen whether any party will appeal Judge Martinez’s decision to the 9th Circuit Court of Appeals, or equally important, whether this decision will change how either FEMA or the 122 NFIP participating jurisdictions in the Puget Sound region enforce or apply the Biological Opinion and Reasonable and Prudent Alternative to development in the region.

The full summary by attorney Molly Lawrence regarding this important legal victory is available at //www.vnf.com/3330