United States District Court, District of Columbia
MEMORANDUM OPINION [DKTS ## 18, 27]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE.
the Court is a motion to dismiss by defendants for lack of
subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), and
plaintiffs' motion to strike defendants' notice of
supplemental facts. Defs.' Mot. to Dismiss [Dkt # 18]
("Defs.' Mot."); Pls.' Mot. to Strike [Dkt
# 27] ("Pls.' Mot."). In these motions, the
parties dispute whether or not plaintiffs have standing to
challenge the Federal Emergency Management Agency's
("FEMA") implementation of the National Marine
Fisheries Service's ("NMFS") reasonable and
prudent alternative ("RPA") to FEMA's
administration of the National Flood Insurance Program
("NFIP") in Oregon. Upon due consideration of the
parties' pleadings, the relevant law, and the entire
record herein, I find that plaintiffs lack standing to bring
this suit and, accordingly, defendants' motion to dismiss
[Dkt # 18] is GRANTED, plaintiffs' motion to strike [Dkt
# 27] is DENIED, and the case is DISMISSED.
bring this suit against the U.S. Department of Commerce
("DOC"), the National Marine Fisheries Service
("NMFS"), and the Federal Emergency Management
Agency ("FEMA"), challenging the implementation of
NMFS's reasonable and prudent alternative
("RPA") to FEMA's administration of the
National Flood Insurance Program ("NFIP") in
participating Oregon communities. Plaintiffs allege
violations of the Endangered Species Act (ESA), 16 U.S.C.
§ 1536(a)(2) (2012), 50 C.F.R. §§ 402.02,
402.14(g)-(h) (2018), the Administrative Procedure Act (APA),
5 U.S.C. §§ 701-706 (2012), and the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)
(2012), 40 C.F.R. §§ 1502.14, 1508.9(b) (2018).
See Compl. [Dkt #1] ¶¶ 92-127.
has administered the National Flood Insurance Program
("NFIP") since 1968. 42 U.S.C. § 4001 et
seq.Under the NFIP, Congress authorized the
director of FEMA to carry out a "program which will
enable interested persons to purchase insurance against loss
resulting from physical damage to or loss of real property or
personal property related thereto arising from any flood
occurring in the United States." 42 U.S.C. §
4011(a) (2012). Importantly, FEMA's authority under the
program is limited. See Defs.' Mot. at 3 (citing
42 U.S.C. § 4022(a)(1) (2012); 44 C.F.R. § 60.1(a)
(2018)). Congress provided that "[t]he Director shall
make flood insurance available in only those States
or areas" which he has determined have (1) evidenced a
"positive interest" in securing flood insurance
under the NFIP and (2) implemented adequate land use or
control measures. Id. (emphasis added). Those States
or areas are, for purposes of the statute, described as
"participating communities." Id. As such,
flood insurance is only available in communities that have
adopted floodplain management criteria consistent with
FEMA's regulations. 42 U.S.C. § 4022(a)(1); 44
C.F.R. § 60.1(a). Property owners in those
"participating communities" are able to go through
FEMA to purchase insurance protection against flooding. FEMA
itself therefore has no actual land use authority under the
statute; it is merely authorized to administer the NFIP and
to set minimum floodplain management criteria. See
44 C.F.R. § 60.1-.26.
National Environmental Policy Act imposes procedural
requirements on federal agencies to consider the
environmental impact of certain federal actions prior to
making decisions, through the generation of an Environmental
Assessment ("EA") and, if determined to be
necessary by the agency, an Environmental Impact Statement
("EIS"). 42 U.S.C. § 4321 el seq.
("NEPA"). Where the agency determines that an EIS
is not required, it must issue a "finding of no
significant impact" ("FONSI"), explaining why
its action will not have a significant impact on the human
environment. See 40 C.F.R. §§ 1501.4(e),
there is a concern that its actions may jeopardize endangered
species, FEMA -like other action agencies-may seek either an
informal or formal consultation with NMFS or FWS under
Section 7(a)(2) of the ESA. 16 U.S.C. § 1536(a)(2). A
formal ESA consultation requires the consulting agencies to
evaluate FEMA's proposed actions so as to determine
whether they are likely to "jeopardize the continued
existence of any endangered species or threatened species or
result in the destruction or adverse modification of habitat
of such species which is determined by the Secretary...to be
critical..." Id. To that effect, NMFS or F WS
will issue a Biological Opinion advising the requesting
agency whether its actions will result in any adverse
effects. Where listed species are likely to be jeopardized or
critical habitat is likely to be destroyed or adversely
modified, NMFS recommends "reasonable and prudent
alternatives"-actions that are constituent with the
intended purpose of the action, within the agency's
authority to implement, economically and technologically
feasible, and will avoid jeopardy and/or adverse modification
of critical habitat. 50 C.F.R. § 402.02. FEMA then has a
period of time to implement the NMFS's recommendations
under the RPAs.
case does not arise from FEMA's ordinary administration
of the NF1P, but from a private settlement between FEMA and
environmental groups in July 2010. See Compl. ¶
60; Defs.' Mot. Exhibit 2, Settlement Agreement,
Audubon Soc'y of Portland v. FEMA, No.
3:09-cv-729-HA (D. Or.) (hereinafter "Settlement
Agreement") ¶¶ 1, 2. Pursuant to the terms of
that settlement, on August 15, 2012, FEMA agreed to initiate
formal Section 7 consultation with NMFS regarding the
implementation of the NFIP in the State of Oregon.
See Settlement Agreement ¶ 2. Specifically,
FEMA requested review of its Program Level Biological
Assessment for the National Floodplain Insurance Program
Oregon State ("Biological Assessment"). Compl.
April 24, 2016, after four years of drafting its own
Biological Opinion pursuant to Section 7, see
Defs.' Mot. Exh. 3, Endangered Species Act (ESA)
Section 7(a)(2) Jeopardy and Destruction or Adverse
Modification of Critical Habitat Biological Opinion
("Biological Opinion"), NMFS issued findings on the
impact of the NFIP in Oregon on 17 ESA-listed anadromous fish
species and the Southern Resident killer whale, and
determined that FEMA's administration of the NFIP in
Oregon would jeopardize 16 of those species. Compl. ¶
62. Consequently, NMFS recommended that FEMA adopt a
reasonable and prudent alternative ("RPA") to its
proposed implementation of the NFIP. Id.
is broken down into six elements. Id. Element 1
directs FEMA to notify participating NFIP communities in
Oregon about NMFS's conclusions. Id. Element 2
directs it to implement "Interim Measures" in
advance of fully implementing the RPAs. Id. Element
3 directs FEMA to revise its mapping protocols under the NFIP
to account for erosion prone areas. Id. Element 4
directs FEMA to modify its floodplain management criteria to
adopt an "ESA performance standard." Id.
Element 5 directs FEMA to collect data from NFIP
participating communities and to use that data to document
the environmental impacts of floodplain development.
Id. And, finally, Element 6 directs FEMA to enforce
the new floodplain management criteria in NFIP communities.
originally suggested staggered deadlines for implementation
of the substantive elements: Elements 2 and 5 and
Sub-elements 3.A and 3.E by March 15, 2018, Element 4 by
January 1, 2019, Sub-elements 3.B, 3.D, 3.F, and 3.G by
September 15, 2019, and January 1, 2021 for any components of
the RPA that require regulatory revisions. NMFS called for
full compliance by September 1, 2024. See Compl.
¶ 64; Defs.' Mot. at 13-14; Biological Opinion
(Defs.' Mot. Ex. 3) at 277.
keeping with Element 1, FEMA issued notice letters to
participating communities on June 13, 2016. Compl. ¶ 85.
Flowever, FEMA has expressed some concerns over its legal
authority to implement certain aspects of the RPA,
id. ¶ 75 (citing FEMA letters to NMFS), and is
still in the process ...