The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
OWW GSA MEMORANDUM DECISION RE FEDERAL DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. 121)
This case is before the Court on the Federal Defendant's Motion for Partial Summary Judgment. This case involves a challenge to the Federal Emergency Management Agency's ("FEMA") administration of the National Flood Insurance Program ("NFIP") in the Sacramento-San Joaquin Delta ("Delta").*fn1 Plaintiffs, the Coalition for a Sustainable Delta and Kern County Water Agency,allege in their first claim for relief that FEMA's ongoing implementation of the NFIP, by, among other things, certifying community eligibility for the NFIP, monitoring community compliance and enforcement with FEMA's criteria for eligibility, and revising flood maps, provides incentives for development within the Delta that might otherwise not occur and therefore requires consultation under Section 7 of the ESA. Third Amended Complaint ("TAC"), Doc. 118, at ¶¶ 82-83.*fn2
Plaintiffs claim that residential, commercial, and agricultural development in the Delta adversely affects four listed species: Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, the Central Valley Steelhead, and the Delta smelt. Plaintiffs assert that FEMA's actions under the NFIP cause "more development in the flood-prone areas of the Delta," which harms listed species. Plaintiffs' challenges to FEMA actions under the NFIP include: (1) issuance, administration, and enforcement of minimum flood plain management criteria; (2) issuance of Letters of Map Changes ("LOMCs"); and (3) providing flood insurance to property owners within participating communities. Plaintiffs specifically identify 74 LOMCs and two LOMC "Validations" allegedly issued in violation of section 7(a)(2). McArdle Decl., Doc. 123-1, Ex. 1 at 18-26; Norton Decl., Doc. 124, at ¶ 9 & Ex. C.Plaintiffs complain that FEMA's floodplain management criteria: "Are designed to reduce threats to lives and to minimize damages to structures and water systems, and are not designed to protect aquatic habitat, threatened or endangered species, or other environmental values." TAC at ¶ 73. This includes FEMA-conducted "community visits" and "technical assistance to local officials" to ensure participating communities adopt and enforce land management ordinances, all of which entails FEMA "discretion" in developing and administering the criteria, requiring section 7(a)(2) consultation.
Plaintiffs assert this process encourages third parties to use fill to elevate properties, or build levees to provide flood protection to induce FEMA to remove the property from the SFHA, relieving property owners of the statutory obligation to purchase flood insurance. TAC at ¶¶ 70-72. These floodplain mapping activities are said to "encourage" these harmful actions, requiring section 7(a)(2) consultation. Id .
Plaintiffs further complain "FEMA has issued hundreds of new individual flood insurance policies for the new structures within floodplains utilized by and relied upon by the Listed Species without the benefit of consultation in violation of section 7(a)(2).
FEMA and its director Janet Napolitano (collectively, "Federal Defendants" or "FEMA") move for partial summary judgment on the specific grounds that: (1) Plaintiffs' Challenge to FEMA's Minimum Floodplain Management Criteria is barred by the statute of limitations; (2) FEMA's alleged authority to amend the NFIP regulations does not trigger a duty to consult under the ESA; (3) FEMA's procedure of issuing LOMCs does not trigger a duty to consult because that process has no effect on listed species; (4) Plaintiff's challenge to certain LOMCs is precluded because Title 42 U.S.C. § 4104 sets forth the exclusive mechanism for challenging LOMCs; and (5) FEMA's issuance of flood insurance is a non-discretionary act that is not subject to Section 7(a)(2) under National Association of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 669 (2007). Doc. 122. Plaintiffs oppose. Doc. 129. FEMA replied. Doc. 138. The matter came on for hearing in Courtroom 3 on April 7, 2011.
Plaintiffs have filed several requests for judicial notice in connection with their opposition. Docs. 131, 142, 144. All but one is a public record downloaded from a public agency's official website. These documents are subject to judicial notice under Federal Rule of Evidence 201. See Cachil Dehe Band of Wintun Indians of the Colusa Indian Comm'ty v. California , 547 F.3d 962, 968-69 n.4 (9th Cir. 2008) (taking judicial notice of gaming compacts located on official California Gambling Control Commission website); Santa Monica Food Not Bombs v. City of Santa Monica , 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (taking judicial notice of "public records" that "can be accessed at Santa Monica's official website"). However, judicially noticed documents may be considered only for limited purposes. Public records "are subject to judicial notice under [Rule] 201 to prove their existence and content, but not for the truth of the matters asserted therein. This means that factual information asserted in these document[s] or the meeting cannot be used to create or resolve disputed issues of material fact." Coalition for a Sustainable Delta v. McCamman , 725 F. Supp. 2d 1162, 1183-84 (E.D. Cal. 2010) (emphasis added).
FEMA asserts that Plaintiffs are attempting to use the documents for improper purposes. FEMA also raises relevance objections to some of the documents.*fn3
1. Documents A, B, L, N, Q & R.
Exhibit A - Excerpts from FEMA, Region 10, Floodplain Habitat Assessment and Mitigation, Regional Guidance (Jan. 2010), http://www.fema.gov/pdf/about/regions/regionx/draft_mitigation_ guide.pdf.Exhibit B - Excerpts from the Nat'l Marine Fisheries Serv.,Northwest Region, Endangered Species Act Section 7 Formal Consultation and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the ongoing National Flood Insurance Program carried out in the Puget Sound area in Washington State (Sept. 22, 2008) ("Puget Sound BiOp"), https://pcts.nmfs.noaa.gov/pls/pctspub/sxn7.pcts_upload.download?p_file=F3181/200600472. Exhibit L - Excerpts from FEMA Region 10, Floodplain Management Guidebook (5th ed. Mar. 2009), http://www.fema.gov/library/viewRecord.do?fromSearch=fromsearch &id=3574.
Exhibit N - Excerpts from FEMA Region 10, Community Checklist for the National Flood Insurance Program and the Endangered Species Act (July 2010), http://www.fema.gov/pdf/about/regions/regionx/Biological_Opinio n_Checklist8_12._10.pdf.Exhibit Q -- FEMA & NMFS, Frequently Asked Questions, Demystifying National Flood Insurance Program Alignment with the Endangered Species Act, Edmonds, WA March 1 & 2, 2011. Exhibit R -- FEMA, Overview of Compliance Options, ESA and the NFIP, Implementing a Salmon-Friendly Program -- FEMA Region 10 Regional Workshop.
FEMA argues that these documents, which pertain to FEMA Region 10's implementation of the NFIP in and around Puget Sound are not relevant to FEMA Region 9's implementation of the NFIP in the Sacramento San Joaquin Delta. Rule 401 defines "relevant evidence" liberally to include "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." (Emphasis added). Plaintiffs offer these documents to demonstrate that NMFS has determined that implementation of the NFIP in the Puget Sound region jeopardizes the continued existence of listed salmonid species in that region. This satisfies the relevance standard, as any differences in indigenous conditions in Puget Sound go to weight not the admissibility of the information. FEMA's relevance objections are OVERRULED.
Plaintiffs offer these documents for the truth of the matters asserted therein, to prove that a dispute exists over whether FEMA's administration of the NFIP may affect listed species. This is an impermissible use of judicially noticed documents and the objections on this ground are SUSTAINED.
Documents A, L, N, Q, & R, all of which were authored by FEMA, are admissible under Federal Rule of Evidence 801(d)(2)(D), which permits the admission of statements offered against a party that are the statement of the party or the party's agent or servant, "concerning a matter within the scope of the agency or employment, made during the existence of the relationship." See United States v. Bonds , 608 F. 3d 495, 503 (9th Cir. 2010). Each of these documents is an official FEMA publication concerning matters within FEMA's scope of operations.
Exhibit B, a biological opinion prepared by NMFS, is admissible under Federal Rule of Evidence 803(8), which provides an exception to the hearsay rule:(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report .....NMFS prepares biological opinions under a duty imposed by ESA § 7(a)(2).
Federal Defendants' objections to the admission of Documents A, B, L, N, Q & R for their truth are OVERRULED.*fn4
Exhibit F - Excerpts from FEMA, FEMA-1628-DR, California Federal Disaster Assistance Biological Assessment (May 2006), http://www.fema.gov/library/viewRecord.do?id=1966.
This document contains excerpts of a draft biological assessment for ESA consultation with NMFS over the potential effects of "typical projects that are funded by FEMA in response to, or in preparation for, disasters" in California. FEMA argues that this document is not relevant because its actions responding to and/or preparing for disasters are not challenged in the Complaint. This relevancy objection is OVERRULED, because the document, which concludes that activities like removal of vegetation, grading, fill, bank stabilization, and others taken under the NFIP "may affect" listed species, and has some tendency to show these activities make it more likely that implementation of the NFIP may affect listed salmonids in the Delta.
This document is a party admission and separately admissible on that ground under Federal Rule of Evidence 801(d)(2). Alternatively, this document is also admissible as a public record under Rule 803(8), as the ESA mandates the preparation of biological assessments when certain conditions exist.
FEMA's objections to the admission of Exhibit F for its truth are OVERRULED.
3. Documents C, C1, D, E, E1, E2, & P.
Exhibit C - Settlement Agreement and [Proposed] Order in Audubon Soc'y of Portland v. FEMA , No. 3:09-cv-00729-HA (D. Or. filed June 25, 2009), ECF No. 20 (filed July 9, 2010), obtained by accessing the official PACER web page for the U.S. District Court for the District of Oregon athttps://ecf.ord.uscourts.gov/cgi-bin/login.pl. Exhibit C1 - Order in Audubon Soc'y of Portland v. FEMA, No. 3:09-cv-00729-HA (D. Or. filed June 25, 2009), ECF No. 21 (filed July 12, 2010), obtained by accessing the official PACER web page for the U.S. District Court for the District of Oregon at https://ecf.ord.uscourts.gov/cgi-bin/login.pl. Exhibit D - Settlement Agreement and Stipulation of Dismissal in Nat'l Wildlife Fed'n v. Fugate , No. 1:10-cv-22300-KKM (S.D. Fla. filed July 13, 2010), ECF No. 20 (filed Jan. 20, 2011), obtained by accessing the official CM/ECF web page for the U.S. District Court for the Southern District of Florida at https://ecf.flsd.uscourts.gov/cgi-bin/login.pl. Exhibit E - Sixth Joint Motion for Stay in WildEarth Guardians v. FEMA , No. 09-0882- RB/WDS (D.N.M. filed Sept. 14, 2009), ECF No. 34 (filed Jan. 28, 2011), obtained by accessing the official PACER web page for the U.S. District Court for the District of New Mexico at https://ecf.nmd.uscourts.gov/cgibin/login.pl. Exhibit E1 - First Amended Complaint in WildEarth Guardians v. FEMA , No. 09-0882-RB/WDS (D.N.M. filed Sept. 14, 2009), ECF No. 1 (filed Sept. 14, 2009), obtained by accessing the official PACER web page for the U.S. District Court for the District of New Mexico at https://ecf.nmd.uscourts.gov/cgibin/login.pl. Exhibit E2 -- Settlement Agreement and Stipulation of Dismissal in Forest Guardians v. FEMA , No. 1:01-cv-00079-MCA-RLP (D.N.M. filed Jan. 22, 2001), ECF No. 12 (filed Feb. 25, 2002), obtained by accessing the official PACER web page for the U.S. District Court for the District of New Mexico at https://ecf.nmd.uscourts.gov/cgi-bin/login.pl. Exhibit P - Settlement Agreement and Order of Dismissal in WildEarth Guardians v. FEMA , No. 09-0882-RB/WDS (D.N.M. filedSept. 14, 2009), ECF No. 37 (filed Feb. 11, 2011, entered Feb. 15, 2011)These documents are court filings and settlements of other litigation. FEMA objects that under Federal Rule of Evidence 408, these exhibits are inadmissible as evidence of liability. See also Green v. Baca , 226 F.R.D. 624, 640 (C.D. Cal. 2005) (noting that Rule 408 bars the use of evidence of settlement negotiations or completed settlements in other cases to prove liability). Rule 408 "does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution...." Fed. R. Evid. 408(b). Plaintiffs claim these documents are offered simply to demonstrate "that FEMA has either voluntarily settled claims that it has failed to consult with respect to [in] its ongoing implementation of the [NFIP]." Doc. 131. This is to show consciousness of liability. Plaintiffs actually use these documents in their Opposition to the Motion for Partial Summary Judgment to argue "it would be curious for FEMA to voluntarily consult if, as the agency claims, it has no legal basis to do so." Doc. 129 at 9. These are impermissible uses of the settlements to establish liability. For this purpose, the objection is SUSTAINED.
Plaintiffs alternatively contend that the settlements demonstrate FEMA has discretion to take actions that benefit the species, because if they had no such discretion it could not enter into the settlements as a matter of law. Doc. 141 at 4. FEMA rejoins that, for example, Exhibit P, a settlement agreement pertaining to FEMA's administration of the NFIP in New Mexico, does not state or imply that FEMA retains discretionary authority with respect to any of the three components of FEMA's administration of the NFIP in the Delta. But, that settlement calls for initiation of consultation over, among other things, FEMA's floodplain mapping activities within New Mexico. That FEMA could lawfully enter into consultation on that activity (which would violate Home Builders if FEMA did not have discretion to modify its mapping activities for the benefit of listed species) is relevant to whether FEMA retains similar discretion in its mapping activities in the Delta. These settlement documents are admissible for the limited purpose of demonstrating that FEMA does retain discretion to take actions to benefit the species under the NFIP, not for the truth or to demonstrate liability. FEMA's objections as to Exhibits C, C1, D, E, E1, E2, and P are OVERRULED solely on that ground.
Exhibit G - Excerpts from California Resources Agency, Governor's Delta Vision Blue Ribbon Task Force, Delta Vision Strategic Plan (Oct. 2008),http://deltavision.ca.gov/StrategicPlanningProcess/StaffDraft/D elta_Vision_Strategic_Plan_standard_resolution.pdf. Exhibit G consists of excerpts of the Delta Vision Strategic Plan, prepared by Governor Arnold Schwarzenegger's Delta Vision Blue Ribbon Task Force. Its discussion of the impacts of development on Delta species is arguably relevant, but it is subject to judicial notice solely for the limited purposes discussed above.
Federal Rule of Evidence 803(8) exempts from the hearsay rule public reports concerning "matters observed pursuant to duty imposed by law as to which matters there was a duty to report." The Delta Vision Strategic Plan was the result of California Executive Order S-17-06, requiring a Blue Ribbon Task Force to develop a strategic plan for the Delta.
FEMA's objections to Exhibit G are OVERRULED. The document is admissible as a public record, but its contents and the opinions expressed are subject to dispute.
Exhibit H - Excerpts from Public Policy Institute of California, Envisioning Futures for the Sacramento-San Joaquin Delta (2007), http://www.ppic.org/content/pubs/report/R_207JLR.pdf. Exhibit H contains excerpts of a document prepared by the Public Policy Institute of California ("PPIC"). Assuming, arguendo , this document is relevant, it is not subject to judicial notice, as PPIC is a non-governmental organization. Even if it were judicially noticeable, it is not admissible for the truth of its contents. Nor is it admissible under either Rule 801(d)(2) because it is not a FEMA publication or Rule 803(8) because it was not prepared by a government agencypursuant to a legal duty.
At oral argument, counsel for Plaintiffs argued that this and all other documents for which judicial notice is sought would be admissible at trial through their retained expert witness. However, any documents offered on summary judgment must be authenticated by an appropriate affidavit or declaration providing a foundation for their admissibility. See Orr v. Bank of Am. , 285 F.3d 764, 773 (9th Cir. 2002) ("[U]nauthenticated documents cannot be considered in a motion for summary judgment."). Plaintiffs must submit an appropriate affidavit demonstrating the admissibility of these documents through their expert. See In Re Homestore.com Inc. Securities Litig ., 347 F. Supp. 2d 769, 780 (C.D. Cal. 2004) (plaintiff's assertion that a document is an expert report and presentation of purported expert's background and the source of the data insufficient to authenticate or provide the required foundation for the document). Federal Defendants must be afforded the opportunity to challenge the expert's qualifications and the admissibility of any opinion testimony based on the documents in question.
Alternatively, Plaintiffs invoke Federal Rule of Civil Procedure 56(d), which permits a court to defer considering a motion, deny it, allow time to obtain additional affidavits or discovery, or issue any other appropriate order if the non-moving party demonstrates by affidavit or declaration that it cannot present facts essential to justify its opposition. Plaintiffs'offer of proof during oral argument that they have retained an expert who will provide foundations for Exhibit H does not explain why they did not earlier address the issue. There is no need to defer a decision on issues for which Exhibit H "may create" a material dispute of fact. The merits of the pending motion can be resolved without reference to this document. It is unnecessary to resolve Plaintiffs' request for a rule 56(d) continuance to secure expert evidence that would render Exhibit H admissible.
Exhibit I - Excerpts from Am. Insts. for Research, The Evaluation of the National Flood Insurance Program -- Final Report (Oct. 2006) ("NFIP Evaluation Final Report"), http://www.fema.gov/library/viewRecord.do?id=2573.
Exhibit J - Excerpts from Am. Insts. for Research, The Development and Envtl. Impact of the Nat'l Flood Ins. Program: A Summary Research Report (Oct. 2006) ("The Developmental and Envtl. Impact of the NFIP"), http://www.fema.gov/library/viewRecord.do?id=2597.
Exhibit K - Excerpts from Am. Insts. for Research, Assessing the Adequacy of the Nat'l Flood Ins. Program's 1 Percent Flood Standard (Oct. 2006), http://www.fema.gov/library/viewRecord.do?id=2595.
Exhibits I through K consist of excerpts of documents prepared by the American Institutes for Research, a private entity. Although the documents were prepared with funds provided by FEMA, the documents explicitly provide that their content "does not necessarily reflect the views or policies of [FEMA]." Norton Decl., Ex. I at 120, Ex. J at 133, Ex. K at 148. These documents are not admissions by FEMA.
The documents are arguably subject to judicial notice, as they are made available for public inspection on the FEMA website. See Victoria v. JPMorgan Chase Bank , 2009 WL 5218040 *2 (E.D.C.A. Dec. 29, 2009). The statements contained in the documents are not subject to judicial notice for their truth, nor are they admissions of a party opponent or government reports.
As with Exhibit H, these documents have not been properly authenticated for admission through an expert witness for the truth. Plaintiffs again offer to provide such authentication at a later stage of discovery. Again, as with Exhibit H, because Exhibits I through K are unnecessary to the merits ruling on the pending motions, it is unnecessary to resolve Plaintiffs' request for a Rule 56(d) continuance to secure expert evidence that would render Exhibits I through K admissible.
Exhibit M - Excerpts from Office of Flood Ins., Fed. Ins. Admin., U.S. Dept. of Housing and Urban Dev., Revised Floodplain Management Regulations of the National Flood Insurance Program, Final Environmental Impact Statement (Sept. 1976), http://www.fema.gov/library/viewRecord.do?id=3271.
FEMA does not object to judicial notice of Exhibit M, which is a public record. Plaintiffs' request for judicial notice of Exhibit M is GRANTED. It will be considered for the truth under both Federal Rule of Evidence 801(d)(2)(D) and 803(8).
The Declaration of Robert C. Horton in support of Plaintiffs' request for judicial notice lists two additional documents, Exhibits O and O1, that were not addressed in any of Plaintiffs' requests for judicial notice. See Doc. 131 (requesting judicial notice of Exhibits A-N; Doc. 142 (same as to Exhibit P); Doc. 144 (same as to Exhibits Q-R). Exhibits O and O1 are referenced by Plaintiffs in support of their alternative request to deny Federal Defendants' motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(d). Specifically, Exhibit O is a copy of FEMA's October 19, 2010 letter responding to Plaintiffs' request for documents under the Freedom of Information Act ("FOIA"). Exhibit O1 is a copy of a complaint filed by Plaintiffs on September 8, 2010 against FEMA alleging FOIA violations. Both of these documents are judicially noticeable court records, admissible to demonstrate their existence and content, not the truth of or any disputed parts of their contents.
A.The Endangered Species Act.
The ESA provides for the listing of species as threatened or endangered. 16 U.S.C. § 1533. The Secretaries of Commerce and Interior share responsibility for implementing the ESA. The Secretary of Commerce has responsibility for listed marine species (including anadromous salmonids) and administers the ESA through the National Marine Fisheries Service ("NMFS"). The Secretary of Interior is responsible for listed terrestrial and inland fish species (including the delta smelt) and administers the ESA through the United States Fish and Wildlife Service ("FWS"). See id . § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b).
ESA Section 9 prohibits "any person subject to the jurisdiction of the United States" from "tak[ing] any such species within the United States." 16 U.S.C. § 1538(1)(B). "Take" is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id . § 1532(19). The ESA's citizen suit provision allows a private plaintiff to bring an action to enjoin private activities alleged to be in violation of the ESA. Id . § 1540(g).
Section 7(a)(2) directs each federal agency to insure, in consultation with FWS or NMFS (the "consulting agency"), that "any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of" any listed species or destroy or adversely modify designated critical habitat. Id . § 1536(a)(2). The term "action" is defined as: all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to:
(a) actions intended to conserve listed species or their habitat;
(b) the promulgation of regulations;
(c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or
(d) actions directly or indirectly causing modifications to the land, water, or air.50 C.F.R. § 402.02.
If the agency proposing the action ("action agency") determines that the action "may affect" listed species or critical habitat, it must pursue either informal or formal consultation. 50 C.F.R. §§ 402.13-402.14. Formal consultation is required unless the action agency determines, with the consulting agency's written concurrence, that the proposed action is "not likely to adversely affect" a listed species or its critical habitat. Id . §§ 402.14(b)(1), 402.13(a). If formal consultation is required, the consulting agency must prepare a biological opinion stating whether the proposed action is likely to jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
The ESA's implementing regulations provide that "Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control." 50 C.F.R. § 402.03. Section 7 does not apply where an agency "simply lacks the power to ‗insure' that [its] action will not jeopardize endangered species." See Home Builders , 551 U.S. at 667.
B.The National Flood Insurance Act and Program.
A 2004 decision in a section 7 challenge to FEMA's implementation of the NFIP in Puget Sound summarizes the NFIP: The three basic components of the NFIP are: (1) the identification and mapping of flood-prone communities, (2) the requirement that communities adopt and enforce floodplain management regulations that meet certain minimum eligibility criteria in order to qualify for flood insurance, and (3) the provision of flood insurance. As part of the NFIP, FEMA also implements a Community Rating System ("CRS"), which provides discounts on flood insurance premiums in those communities that establish floodplain management programs that go beyond NFIP's minimum eligibility criteria.
Nat'l Wildlife Fed'n v. FEMA , 345 F. Supp. 2d 1151, 1155 (W.D. Wash. 2004) ("NWF v. FEMA ").
1. FEMA's Floodplain Management Criteria.
Congress created the NFIP to, among other things, "provid[e] appropriate protection against the perils of flood losses" and to "minimiz[e] exposure of property to flood losses." 42 U.S.C. § 4001(c). The program seeks to "encourage State and local governments to make appropriate land adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses." Id . § 4001(e). To accomplish these objectives, Congress mandated that FEMA "shall make flood insurance available" in communities that have (1) evidenced interest in securing flood insurance through the NFIP and (2) adopted adequate floodplain management regulations consistent with criteria developed by FEMA. See 42 U.S.C. § 4012(c); see id . § 4022(a); 44 C.F.R. § 60.1(a). The criteria must be designed to encourage state and local governments to adopt flood plain regulations that will:
(1) constrict the development of land which is exposed to flood damage where appropriate,
(2) guide the development of proposed construction away from locations which are threatened by flood hazards,
(3) assist in reducing damage caused by floods, and
(4) otherwise improve the long-range land management and use of flood-prone areas.42 U.S.C. § 4102(c).
In 1976, after notice and opportunity for public comment, FEMA promulgated regulations setting forth the minimum floodplain management criteria required by the NFIA. See 41 Fed. Reg. 46,975 (Oct. 26, 1976); 44 C.F.R. §§ 60.3 (criteria for flood-prone areas), 60.4 (criteria for mudslide-prone areas), 60.5 (criteria for flood-related erosion-prone areas). The regulations have not been amended in any substantive fashion since 1997. See 62 Fed. Reg. 55,706, 55,716 (Oct. 27, 1997). In order to qualify for flood insurance under the NFIP, a community must adopt and enforce a floodplain management ordinance that meets or exceeds the regulatory criteria. See 44 C.F.R. §§59.2(b), 59.22(a)(3), 60.1.
The land management criteria for flood-prone areas require participating communities to adopt land use ordinances that restrict development of land susceptible to flooding. See 44 C.F.R. §§ 60.3, 60.1(d). In relevant part, the ordinances must require new or substantially improved structures to be built with the lowest floor at or above the "base flood elevation." Id. §60.3(c)(2)-(3). The base flood is the flood that has a one percent chance of being equaled or exceeded in any given year (referred to as the "100-year flood"). Id . § 59.1. The ordinances also must include effective enforcement provisions. Id . § 59.2(b). A community that fails to adequately enforce its floodplain management ordinance may be put on probation or suspended from the NFIP. See 44 C.F.R. § 59.24(b)-(c)
2. FEMA's Floodplain Mapping Activities.
Under the NFIA, Congress directed FEMA to identify and publish information for floodplain areas nationwide that have special flood hazards (referred to as "Special Flood Hazard Areas" or "SFHAs") and to establish flood-risk zone data. 42 U.S.C. § 4101. This data is then transferred onto Flood Insurance Rate Maps ("FIRMs"). 44 C.F.R. § 59.1. The SFHA is the "land within a community subject to a 1 percent or greater chance of flooding in any given year," also referred to as the base flood. Id.
The NFIA requires FEMA to assess the need to revise and update FIRMs and flood-risk zones "based on an analysis of all natural hazards affecting flood risks." 42 U.S.C. § 4101(e)-(f). State or local governments may request FIRM revisions, provided they submit sufficient technical data to justify the request.
See 42 U.S.C. § 4101(f)(2). Individual landowners may also request that a FIRM be revised by requesting a LOMC. See 44 C.F.R. §§ 65.4-65.8; 44 C.F.R. pt. 72; 42 U.S.C. § 4104; Norton Decl., Doc. 124, at ¶ 6.
FEMA periodically revises FIRMs by either publishing a new FIRM or by
making minor changes or corrections through Letters of Map Revisions
("LOMRs") or Letters of Map Amendments ("LOMAs"), collectively LOMCs.
44 C.F.R. pts. 70, 72; Norton Decl., Doc. 124, at ¶ 6. A
LOMR is a modification of the effective FIRM "based on the
implementation of physical measures that affect the hydrologic or
hydraulic characteristics of a flooding source and thus result in a
modification of the existing regulatory floodway, the effective
[BFEs] or the SFHA." 44 C.F.R. § 72.2. A LOMR may also be issued as a
result of updated flood hazard data that requires a modification of
the FIRM. See 44 C.F.R. §§65.4-65.6; Norton Decl., Doc. 124, ¶ 6.b. Any LOMR affecting flood
elevation levels is subject to the administrative and judicial review
procedures set forth in Section 4104 of the NFIA. See 44
C.F.R. pt. 67; Great Rivers Habitat Alliance v. FEMA , 615
F.3d 985, 989 (8th Cir. 2010).
FEMA may issue a LOMR based on fill activities ("LOMR-F"), which is a "modification of the SFHA shown on the FIRM based on the placement of fill outside the existing regulatory floodway." 44 C.F.R. § 72.2. If issued, a LOMR-F revises the SFHA boundary by letter to exclude the elevated property from the coverage under the SFHA. Norton Decl., Doc. 124, at ¶ 6.c.
By the time any LOMR, including an LOMR-F, is requested, the project (in the case of an LOMR-F, the placement of fill) will have already been completed. An individual LOMR itself does not authorize, permit, fund, license, zone or otherwise approve construction of any projects in the floodplain. Norton Decl., ¶¶6.b, 6.c & Ex. B at 2, 6.
A Letter of Map Amendment ("LOMA") is an official determination by FEMA that a property has been inadvertently included in the SFHA or regulatory floodway, and the LOMA amends the FIRM to correct the error. 44 C.F.R. § 70.5; Norton Decl., ¶ 6.a. A property owner who believes his property has been inadvertently included in the floodplain may ...