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Oregonians for Floodplain Protection v. U.S. Department of Commerce

United States District Court, District of Columbia

September 19, 2018


          MEMORANDUM OPINION [DKTS ## 18, 27]


         Before 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.


         Plaintiffs 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.

         A. Regulatory Landscape

         FEMA has administered the National Flood Insurance Program ("NFIP") since 1968. 42 U.S.C. § 4001 et seq.[1]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.

         The 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), 1508.13 (2018).

         Where 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 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.

         B. Procedural History

         This 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. ¶ 61.

         On 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. ¶63.[2]

         The RPA 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. Id.

         NMFS 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.

         In 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. ΒΆ 75 (citing FEMA letters to NMFS), and is still in the process ...

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