## Facts

- Environmental organizations alleged FEMA’s administration of the National Flood Insurance Program (NFIP) in the Puget Sound region encouraged floodplain development through subsidized insurance and program criteria.
- Plaintiffs claimed floodplain development would fill, armor, or otherwise alter habitat used by the threatened Puget Sound chinook salmon.
- FEMA had not consulted with the National Marine Fisheries Service (NMFS) regarding NFIP effects on the salmon under Endangered Species Act (ESA) § 7(a)(2).
- Plaintiffs dismissed with prejudice their ESA § 7(a)(1) claim, leaving only the § 7(a)(2) consultation claim.
- Plaintiffs sought declaratory relief, an order requiring FEMA to initiate consultation, and continued court oversight.
- FEMA and intervenor-defendants (including a national homebuilders association and local government/industry groups) opposed, disputing standing, “agency action,” causation, and the scope of any remedy.

## Issues

1. Whether plaintiffs had Article III standing to sue over FEMA’s alleged failure to consult under ESA § 7(a)(2).
2. Whether FEMA’s implementation of the NFIP in the Puget Sound region is an “agency action” that “may affect” a listed species, triggering ESA § 7(a)(2) consultation with NMFS.
3. If a violation existed, what declaratory and injunctive relief was appropriate.

## Decision

- The court granted in part and denied in part each side’s summary-judgment motion.
- The court held plaintiffs had standing based on members’ recreational, aesthetic, and scientific interests in Puget Sound rivers and floodplains and alleged habitat degradation affecting chinook salmon.
- The court held FEMA’s NFIP implementation included affirmative program elements (e.g., flood mapping, minimum criteria, community participation/oversight, and insurance availability) that could influence floodplain development.
- The court found these NFIP components constituted “agency action” that “may affect” Puget Sound chinook salmon, triggering ESA § 7(a)(2) consultation duties.
- The court declared FEMA in violation of ESA § 7(a)(2) for failing to consult with NMFS and ordered FEMA to initiate consultation.
- The court declined to impose the broadest requested injunction (such as a sweeping halt to issuing flood insurance for new development) and instead ordered narrower, consultation-focused relief, while retaining jurisdiction to monitor compliance.

## Legal Principles

- ESA § 7(a)(2) requires consultation with the relevant wildlife expert agency when a federal agency action “may affect” a listed species or its critical habitat; the “may affect” threshold is low.
- A federal program can qualify as “agency action” even when local governments and private parties make immediate land-use decisions, if the federal agency affirmatively structures participation criteria or incentives that may influence habitat-affecting activity.
- Environmental plaintiffs may establish Article III standing by showing members’ concrete use and enjoyment interests in affected areas and a credible threat that the challenged federal action will harm listed-species habitat, with relief likely to reduce that risk.
- Remedies for ESA consultation violations may include declaratory relief and an order to initiate consultation, with injunctive limits calibrated to avoid unnecessary disruption beyond what is needed to enforce the consultation requirement.

## Conclusion

The court held FEMA’s administration of the NFIP in the Puget Sound region was an ESA-covered agency action that may affect threatened chinook salmon, requiring consultation with NMFS; it ordered consultation and limited interim relief rather than a broad moratorium on flood-insurance issuance.


Nat'l Wildlife Fed'n v. Fed. Emergency Mgmt. Agency, 345 F. Supp. 2d 1151 (W.D. Wash. 2004)