(CN) - The Federal Emergency Management Agency on Monday prevailed in a lawsuit brought by environmental advocates who claim the agency's operation of the National Flood Insurance Program in Oregon encourages development in floodplains that degrades the habitat of endangered species.
U.S. District Judge Michael Simon in Portland dismissed the complaint brought by the Northwest Environmental Defense Center and three other groups because their claims were premature given that FEMA has until September 2027 to implement the "reasonably prudent alternatives" provided by the National Fish and Wildlife Service and is still finalizing its Environmental Impact Statement for the program.
The judge, a Barack Obama appointee, found FEMA's purported failure to meet the interim deadlines proposed by the 2016 Fish and Wildlife report - to minimize the harm to 16 Endangered Species Act-listed species of anadromous fish and orca whales - had little relevant because a departure from the suggestions in Fish and Wildlife's Biological Opinion wasn't in itself a violation of the Endangered Species Act.
"Even if FEMA fails perfectly to implement the [reasonably prudent alternatives], the court cannot yet evaluate whether that action violates the ESA," Simon wrote. "The court cannot know whether FEMA's program implementation is unlawful - i.e., whether it took alternative, reasonably adequate steps to ensure the continued existence of the species at issue in the Biological Opinion-without knowing how FEMA will implement the program."
The four nonprofits sued in 2023, arguing that the National Flood Insurance Program, which allows homeowners to purchase affordable flood insurance from the government, had not lived up to its mission in Oregon of encouraging "sensible land use that minimizes the exposure of built structures to flood damage."
In reality, the groups claim, the program has "encouraged floodplain development in high-hazard areas by providing insurance policies that obscure risk to property owners and provide taxpayer-subsidized, discounted coverage."
The groups also say the program destroys ecosystems while significantly harming some of the state's most iconic species.
According to the conservationists, FEMA's program encourages floodplain development that affects the quantity and quality of fish habitat used for migration, spawning and rearing, thus causing further mortality and risking species extinction.
The accusation is backed, they say, by how FEMA failed to consult with the National Marine Fisheries Service until 2009 following a lawsuit. This prompted the marine agency to release a biological opinion in 2016, which determined the insurance program's Oregon operations are jeopardizing 15 salmonid species, the distinct population segment of the Pacific eulachon and salmon-dependent Southern Resident orcas.
"We are disappointed in today's ruling," Mary Stites, an attorney with the Northwest Environmental Defense Center, said in an email. "We are also disappointed that FEMA is not being held accountable for its persistent delay and the impacts that delay has on our region's imperiled species. We are now discussing options with clients."
Source: Courthouse News Service
