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Delta Watch

Settlement Stops Government from Promoting Habitat Destruction in the Delta

FRESNO, CA – A long-running government program that promotes development in floodplains without considering the impacts on threatened and endangered species and their habitat in the Sacramento-San Joaquin Delta will now be forced to comply with the federal Endangered Species Act (ESA) under a settlement agreement in a case filed by the Coalition for a Sustainable Delta and Kern County Water Agency against the Federal Emergency Management Agency (FEMA).

The lawsuit concerns FEMA’s implementation of the National Flood Insurance Program (NFIP), which makes subsidized flood insurance available for developments in the flood plain and also encourages the construction and maintenance of levees to remove land from the floodplain. The lawsuit alleged that FEMA had continually violated the ESA by encouraging development in floodplains, which provide habitat for a number of threatened and endangered species, without consulting with the National Marine Fisheries Service and the United States Fish and Wildlife Service with regard to impacts of the NFIP on those species, as mandated under the law.

“As several federal courts have concluded, the law clearly requires FEMA to consult with the federal wildlife agencies to ensure that FEMA’s flood insurance program complies with the Endangered Species Act,” said Coalition for a Sustainable Delta spokesperson Michael Boccadoro. “FEMA has been operating its flood insurance program in a way that encourages growth in floodplains and adversely impacts threatened and endangered species in violation of the Endangered Species Act.”

Under the flood insurance program, FEMA designates certain areas as “special hazard flood zones,” which can continue to be developed and obtain the necessary insurance to secure loans from federally regulated banks.

Specifically, the settlement requires FEMA to comply with the ESA by consulting with the National Marine Fisheries Service and the United States Fish and Wildlife Service regarding the administration of the NFIP within the legal Sacramento-San Joaquin Delta.

Many of the affected areas provide habitat for listed species and other ecosystem services, including contributing to the productivity of various components of the foodweb for phytoplankton, copepods and other organisms. The lawsuit was premised on the fact that destruction of this habitat has been particularly harmful to Sacramento River winter-run chinook salmon, Central Valley spring-run chinook salmon, Central Valley steelhead, and delta smelt.

In the Delta, the flood zone encompasses seasonal and perennial tidal wetlands. According to the United States Geological Survey, more than 95 percent of those Delta wetlands have been destroyed and new development threatens the remaining tidal wetlands. One of the major focuses of the Bay Delta Conservation Plan (BDCP) is the restoration of tens of thousands of acres of tidal wetlands that have previously been removed from the flood zone via fill and levee construction.

Similar lawsuits have been filed against FEMA in Florida, Washington, Oregon and New Mexico in the past several years. In each instance, FEMA either lost the lawsuit and was instructed to consult by a federal court or settled the lawsuit prior to a decision and agreed to engage in consultation.

“At a time when federal and state agencies are collaborating with public water agencies throughout California to restore thousands of acres of flood plains, it is shocking that FEMA was unwilling to acknowledge the harmful effects of the NFIP on listed species until forced to do so through litigation. But we are pleased that FEMA saw the writing on the wall and agreed to consult when it was clear that it would fail in court,” said Boccadoro. “Taking endangered species into account before allowing new levee construction and development in these areas will benefit the listed species and contribute to the broader effort to address the myriad stressors on those species.”

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