Humboldt Baykeeper & EcoRights Settle FEMA lawsuit over National Flood Insurance Program

Jennifer Kalt, Director

In January, Humboldt Baykeeper and the Ecological Rights Foundation finalized a settlement with the Federal Emergency Management Agency (FEMA) that blocks adoption of the 2017 National Flood Insurance Maps in Humboldt, Santa Cruz, and Monterey Counties until impacts to endangered species are addressed.

The National Flood Insurance Program (NFIP) subsidizes federal flood insurance in flood-prone areas for private property owners to whom private insurance is not available for obvious reasons. Under the program, local communities are eligible for federal flood insurance when they adopt “adequate land use and control measures” dictated by FEMA. The program encourages new, private development in wetlands and riparian areas across the U.S. at the expense of taxpayers and the environment.

Currently, Humboldt County uses decades-old FEMA guidance for development in flood zones. New development is routinely recommended for approval, so long as the ground floor is built one foot above the base flood elevation. Provisions for hazardous chemicals used in industrial operations are similarly weak. Recent examples include cannabis extraction facilities along major rivers and an asphalt batch plant at Big Lagoon (although most of these projects have been blocked on appeal). Sea level rise has not yet been incorporated into the federal flood insurance equation, so new development in coastal areas will become increasingly  costly to taxpayers, putting people, property, and endangered species in harm’s way.

In January 2018, the County Planning Commission approved an industrial cannabis development in the FEMA 100-year flood zone next to the Mad River. The permit was appealed by the Humboldt Bay Municipal Water District, which operates nearby drinking water intake wells that serve 88,000 residents. The project was eventually withdrawn.

Developing floodplains is poor planning for a variety of reasons. Paving floodplains constrain flood waters, leading to more severe flooding and erosion downstream. Reducing natural floodplains jeopardizes salmon, steelhead, and other protected species by restricting access to critical spawning and rearing habitat. And the potential for accidental volatile chemical spills and other damage during floods is of great concern for the river and fish as well as our primary public drinking water supply.

In 2017, FEMA completed Countywide Map Revisions without Section 7 consultation under the Endangered Species Act, which requires the assessment of impacts to salmon and steelhead, green sturgeon, tidewater goby, and other species. Consultation with the wildlife agencies will ensure that the program does not jeopardize listed species or adversely modify critical habitat (habitat designated as critical to these species’ survival and recovery).

Flood Insurance Rate Maps identify various categories of flood hazard areas in which land use and building criteria apply. The maps are required to be reviewed at least once every five years. If a community chooses not to participate in the NFIP, various types of federal assistance, such as mortgages from a federally insured or regulated bank and Veterans Administration loans, are prohibited if the building used to secure the assistance is in the 100-year floodplain.

Despite losing or settling at least seven nearly identical lawsuits, FEMA elected to ignore the clear requirements with regard to listed salmonids and other affected species in Northern California. Since FEMA’s ongoing implementation of the NFIP is a federal agency action that may affect listed species, FEMA must now remedy its continuing failure by requesting consultation from federal wildlife agencies.

FEMA agreed to consult for the entire range of the protected species, since fish don’t stop at county lines. This means that impacts to Southern Oregon-Northern California Coho and the Central Coast Coho will be assessed throughout California, not just in the three counties.

NOAA-Fisheries has repeatedly implored FEMA that the National Flood Insurance Program is adversely impacting endangered species and that FEMA must consult under the Endangered Species Act to receive advice on how the program should be altered to protect these species. FEMA in turn has repeatedly refused, continuing to drag its heels concerning fundamental changes to the National Flood Insurance Program to benefit endangered species. 

In other parts of its West Coast Region, NOAA-Fisheries has requested that FEMA:

  • improve floodplain-mapping techniques to more accurately identify the high-risk areas.
  • limit new development in the most hazardous, flood-prone areas, often the most beneficial habitat for endangered fish.
  • mitigate development that does proceed in the floodplain by restoring floodplain elsewhere, so recovering native salmon don’t face a net loss of habitat.

 

For more info, visit FEMA v. Wildlife at https://www.ecorights.org/fema_v_wildlife

FEMA Flood Maps are available online at https://msc.fema.gov/.

 

Coho Salmon (Oncorhynchus kisutch) are protected by the Endangered Species Act. Major threats to the species include habitat impediments (dams), habitat degradation, habitat loss, commercial and recreational fishing, and climate change.

Salmon are managed as Evolutionarily Significant Units, which are considered distinct populations because they are reproductively isolated from other populations of the same species.

  • The Southern Oregon-Northern California Coho ranges from the Mattole River in Southern Humboldt to the Rogue River in Southern Oregon. They were listed as Threatened in 1997.
  • The Central Coast Coho ranges from Mendocino to Santa Cruz Counties, including parts of the San Francisco Bay watershed. They were listed as Threatened in 1996, and reclassified as Endangered in 2005.