Flood Insurance Program Sued in Arizona to Protect Species

By | September 9, 2009

An environmental group is trying to slow development near ecologically fragile dry washes and desert riverbeds in Arizona by targeting the federal agency that provides the flood insurance essential to building there.

WildEarth Guardians’ novel approach in its lawsuit against the Federal Emergency Management Agency says FEMA has the same responsibility to protect endangered species as any other agency. Issuing insurance without checking to see if development will harm plants and animals violates the Endangered Species Act, the lawsuit says.

WildEarth said it filed the lawsuit in Tucson federal court. The group alleges that FEMA’s National Flood Insurance Program encourages new development in flood plains where most of the state’s endangered species live.

Officials with FEMA weren’t immediately available for comment.

WildEarth is seeking an injunction that would require FEMA to consult with the U.S. Fish and Wildlife Service on the effects of its flood insurance program. The group also wants FEMA to stop issuing new policies for flood plain areas where construction would harm endangered species or their habitats.

The lawsuit cites numerous state and federal agencies that agree the areas in and around washes and riverbeds support most of the state’s endangered and threatened species. Yet flood insurance policies are issued without determining if the development they’re covering will hurt them.

“Every agency out there that has concerns about resources … has determined that it’s really important to maintain these intact riparian ecosystems,” said Steven Sugarman, WildEarth’s attorney. “But at the same time, FEMA is out there authorizing construction and development in these areas.”

Of special concern are areas along the San Pedro, Verde, Gila and Colorado rivers, which are especially rich in endangered species according to the suit.

Lenders generally require property owners and developers to obtain flood insurance in areas FEMA determines are at risk. As of April, nearly 36,000 policies covered structures worth about $7.7 billion in Arizona.

“Absent the guarantee of insurance I think builders wouldn’t be taking this financial risk,” said John Horning, WildEarth’s executive director. “That’s the irony of the program. It had and has good intentions, but I think it’s turned into a program that subsidizes and promotes development in ways that put people in harm’s way and increases environmental damage.”
Sugarman said the suit is the first to challenge flood insurance policies in the Southwest under the Endangered Species Act. FEMA has consulted with other agencies about its program’s effect on endangered species only twice before, in Puget Sound, Wash., and in the Florida Keys.

In New Mexico, Sugarman said, FEMA is talking with Fish and Wildlife about how the flood insurance program may affect endangered species, but it hasn’t opened a formal consultation.

Horning said the goal is ultimately to have FEMA consider the effect of its flood insurance programs on habitat and species not only in Arizona, but across the West and the nation.

“The National Flood Insurance Program promotes development that clogs Arizona’s arteries of life,” Horning said. “In the short term, sure, people just want to be able to do whatever they want. But we’ve learned a lot on the coast and along the Mississippi River that flood plain development doesn’t make much sense.”

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