## Facts

- FEMA administered the National Flood Insurance Program (NFIP) in the Florida Keys under the National Flood Insurance Act, conditioning insurance availability on community participation and minimum floodplain management measures.
- Environmental organizations alleged NFIP flood-insurance availability facilitated development in flood-prone areas overlapping habitat of the endangered Florida Key deer and other listed species.
- After litigation compelled consultation under ESA § 7, the U.S. Fish and Wildlife Service issued a biological opinion concluding FEMA’s NFIP activities in the Keys jeopardized the Florida Key deer and eight other listed species.
- The biological opinion identified “reasonable and prudent alternatives” (RPAs) and referenced a conservation planning approach; FEMA implemented incentives for local communities to develop conservation plans.
- Years later, the record showed no evidence that any community had adopted an adequate conservation plan, and plaintiffs contended the RPAs were ineffective and unlawfully allowed jeopardizing development to continue.
- The district court granted summary judgment to plaintiffs and enjoined FEMA from issuing new flood-insurance policies in specified endangered-species habitat areas until ESA-compliant measures were in place.
- FEMA and the Department of the Interior appealed the summary judgment and injunction.

## Issues

1. Whether FEMA’s administration of the NFIP in the Florida Keys constitutes “agency action” subject to ESA § 7(a)(2) consultation and the duty to avoid jeopardy and adverse habitat modification.
2. Whether FEMA and the Fish and Wildlife Service complied with ESA § 7(a)(2) and the APA in developing and implementing the biological opinion and RPAs.
3. Whether the district court properly granted summary judgment and entered injunctive relief restricting issuance of new flood-insurance policies.

## Decision

- The Eleventh Circuit affirmed the district court’s summary judgment and injunction.
- FEMA’s NFIP administration in the Florida Keys was “agency action” under ESA § 7(a)(2), not a purely ministerial activity.
- The agencies failed to satisfy ESA § 7 because the adopted approach relied on voluntary, unimplemented local conservation planning and did not meaningfully prevent continued jeopardy identified in the biological opinion.
- The challenged agency actions were unlawful under APA review because the RPAs and implementation lacked a rational connection to the statutory requirement to avoid jeopardy.
- Injunctive relief barring new NFIP policies in specified habitat areas was upheld given the likelihood of ongoing habitat harm from development facilitated by flood insurance.

## Legal Principles

- ESA § 7(a)(2) applies to federal program administration when the agency authorizes, funds, or carries out actions that affect listed species or critical habitat, including through program conditions and regulatory criteria influencing land use.
- An agency’s ESA § 7 duty is continuing and substantive; consultation and issuance of a biological opinion do not suffice if the program remains structured and implemented in a way that allows jeopardy to persist.
- RPAs must be reasonably certain to avoid jeopardy; reliance on speculative or purely voluntary third-party measures that are not implemented can render compliance arbitrary and capricious under the APA.
- Courts may enjoin ongoing federal program operations, including issuance of insurance, when necessary to prevent irreparable harm to listed species from ESA noncompliance.

## Conclusion

The Eleventh Circuit held that FEMA’s NFIP administration in the Florida Keys is actionable under ESA § 7 and affirmed injunctive relief because the agencies’ post-consultation measures depended on unrealized local planning and did not effectively prevent jeopardy to listed species.


Fla. Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008)