Judge Rules FEMA Must Reconsider Floodplains Plan

A vineyard along River Road is flooded on Feb. 27, 2019, near Forestville, Calif. (AP Photo/Eric Risberg)

(CN) – A federal judge in San Francisco ruled Wednesday to block the Federal Emergency Management Agency from moving forward with its plans to offer flood insurance to developers and property owners in 100-year flood zones in California, finding that the agency failed to consider effects development might have on endangered wildlife in those areas.

Conservation groups Ecological Rights Foundation and Humboldt Baykeeper filed the complaint against FEMA, claiming that the government agency ignored floodplain development issues and should have worked with the Fish and Wildlife Services and National Marine Fisheries Service to address how to protect species and habitats protected by the Endangered Species Act (ESA).

FEMA plans on offering flood insurance to developers in 100-year flood zones in Humboldt, Monterey and Santa Cruz counties.

Under the National Flood Insurance Act, FEMA offers developers affordable flood insurance in order to encourage construction in floodplains. In exchange, developers and communities agree to adopt flood-control and land-use measures in order to reduce flood risks and possible damage. More than 22,000 communities participate in the program, with over 5.6 million insurance policies providing more than $1.2 trillion in coverage.

As required by the Endangered Species Act, FEMA published a biological evaluation of the affected areas in 2016 but failed to incorporate information from the report in their plans. U.S. District Judge James Donato ruled that by doing so, the agency acted “arbitrarily and capriciously” in excluding the data.

“FEMA made the ‘no effect’ determination without any consideration of possible ESA impacts from floodplain development,” Donato wrote in the 16-page ruling. “Nothing in the [ESA] Evaluation or the administrative record provides a reasoned or reasonable basis for this decision.”

Attorneys for FEMA argued that it was not subject to the lawsuit since the agency has “no role” in issuing local permits for floodplains. Donato disagreed, finding that the agency is still required to carry out its duties, including incorporation of the ESA evaluation in its actions.

“FEMA’s effort to pigeonhole floodplain development solely as a matter of state and local permits is untenable in light of these factors,” Donato wrote. “The requirement of a permit from a local land use authority for development in a floodplain in no way detracts from or displaces FEMA’s discretion over floodplain management.”

Donato set aside the agency’s “no effect” evaluation of the California floodplains, essentially requiring FEMA to reassess the area.

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