The Clash of the Acts: FEMA'sImplementation of the National FloodInsurance Program and its Collision with theEndangered Species Act and the NationalEnvironmental Policy Act01 January 2019
The Federal Emergency Management Agency (FEMA) administers the National Flood Insurance Program (NFIP), a federal flood insurance program that also aims to prevent flooding in flood-prone areas. However, the structure and implementation of the NFIP has created mixed results. FEMA's implementation of the NFIP has been found to inadvertently incentivize unsustainable floodplain development, which in turn threatens species and their habitats protected by the Endangered Species Act (ESA). Over the years, FEMA has engaged in lawsuits and settlements regarding its implementation of the NFIP. As a result of these lawsuits, the National Marine Fisheries Service (NMFS) conducted scientific studies, known as biological opinions (BiOp), which found that three particular components of FEMA's implementation of the NFIP are at the root of FEMA's ESA-noncompliance issues. Additionally, one of these lawsuits resulted in a settlement which required FEMA to conduct a Nationwide Programmatic Environmental Impact Statement (NPEIS), a tool that comes from the National Environmental Policy Act (NEPA), evaluating the environmental impacts of the NFIP. The NPEIS was published in November 2017. In the NPEIS, FEMA asserts that its implementation of the NFIP does not impact floodplain development, and that the agency is compliant with the ESA. Accordingly, in the NPEIS, FEMA suggests four alternatives to the way the NFIP is currently implemented. Then, in May 2018, FEMA issued the Record of Decision (ROD), which finalizes FEMA's decision to implement the NPEIS's Preferred Alternative. The Preferred Alternative requires NFIP communities, meaning state and local governments, to "obtain and maintain documentation" of ESA compliance as a condition to issue floodplain development permits. This Comment provides an overview of the NFIP, the ESA, the litigation and consultation history, the NPEIS, the ROD, and makes three conclusions: (1) FEMA's imposition of ESA requirements on state and local governments is an impermissible shift of its own ESAresponsibilities onto parties who have no legal obligation to comply with the ESA; (2) FEMA lacks the authority to enforce its preferred alternative under the existing regulation; and (3) the ESA compliance requirement of the alternatives is a significant burden on NFIP communities. Based on these conclusions, FEMA's implementation of its Preferred Alternative is unwise.