Fighting FEMA in the Delta

For years, the Federal Emergency Management Agency (FEMA) has faced lawsuits for violating the Endangered Species Act (ESA) by failing to consult with federal wildlife agencies regarding its National Flood Insurance Program.

The agency has lost or settled seven nearly identical lawsuits related to this program, including a case involving Coalition for a Sustainable Delta and Kern County Water Agency.  We represented both in a case heard before the U.S. District Court for the Eastern District of California. 

The case centered on claims by our clients that FEMA violated the ESA through its administration of the National Flood Insurance Program.  The complaint claimed that FEMA failed to consult with the National Marine Fisheries Service and U.S. Fish and Wildlife Service over the effects of the program on four listed endangered and threatened species in the Sacramento-San Joaquin River Delta.  FEMA's flood insurance program had been criticized for encouraging development in the floodplain of the Delta, eliminating valuable habitat and affecting federally protected fish species. 

We conducted both formal and informal discovery, successfully opposed a motion to dismiss and a motion for summary judgment.  Ultimately, we negotiated a favorable settlement under which FEMA agreed to pay the plaintiffs' attorneys' fees and perform an assessment of possible effects on protected species under Section 7 of the ESA. 

The settlement potentially provides further protection to a number of species that are presently facing the possibility of extinction.  In addition, it could also result in changes to FEMA's administration of the National Flood Insurance Program throughout California, as well as the introduction of new environmental restrictions on development in the Delta floodplain.