Thursday, December 22, 2011

ESA Suit Threatens Flood Insurance

As suspected, the National Wildlife Federation has filed suit against FEMA.

Today, NWF moved for a preliminary injunction against the sale of flood insurance in the Puget Sound region pending the outcome of the lawsuit

FEMA may be prevented from issuing FLOOD INSURANCE .  This could have severe impacts on all types of real estate and countless businesses that operate in any floodplain in the Puget Sound region.

Why:  Because the suit against FEMA seeks an injunction to prohibit the sale of flood insurance policies in Washington State .

Immediate action needed:
Support a coalition of real estate organizations, owners, property professionals and businesses who have organized as “Property Owners for Sensible Floodplain Regulation” (POSFR) in an effort to Protect Property Rights in the Floodplain.

On November 30, 2011, Property Owners for Sensible Floodplain Regulation (POSFR) held a meeting at Renton City Hall to discuss pending changes to the floodplain maps and development regulations applicable to floodplains in the Puget Sound region.  During that meeting, it was  highlighted that the National Wildlife Federation had submitted a 60-day Notice of Intent to sue to FEMA in September 2011, asserting that FEMA has not done enough to enforce the very restrictive development standards set forth in the Biological Opinion issued by NOAA-National Marine Fisheries Service to FEMA in September 2008 regarding FEMA’s operation of the National Flood Insurance Program in the Puget Sound region.

On December 8, the National Wildlife Federation filed their lawsuit against FEMA.  They assert that FEMA has violated several sections of the Endangered Species Act by failing to require the 122 Puget Sound jurisdictions participating in the National Flood Insurance Program to enforce the most restrictive provisions of the Biological Opinion.  Those restrictive provisions include, but are not limited to:

§         A 150-250 foot “no adverse affects” buffer around all rivers and streams in the region;
§         A restriction on new impervious surface to no more than 10% of the lot area;
§         A requirement to provide compensatory storage to offset any floodplain fill;

And there is more …..

The impacts to ongoing property operations and future development could be severe.

The National Wildlife Federation has filed a Motion for Preliminary Injunction.  They are asking the federal court to suspend the sale of flood insurance for any new development or substantial redevelopment until FEMA implements the Biological Opinion as the National Wildlife Federation would like.  If the Court issues the injunction – which could occur as soon as February 2012 – it will halt most development and substantial redevelopment in the floodplain areas of our region for several months, if not years.  The NWF was successful in getting an injunction against the sale of flood insurance in Monroe County, Florida – which has been in effect since 2005.

Over the past year, POSFR has attempted to focus property owners and businesses located in and near the floodplain on the substantial risks facing their properties and business operations from the Biological Opinion and corresponding changes to local floodplain development regulations.  POSFR’s efforts have also included a parallel FEMA project, floodplain remapping, that in many cases is resulting in expanded floodplain area encompassing properties never before shown in the floodplain.  With the filing of this lawsuit by the National Wildlife Federation, the risks to real property in the floodplain have become very real.  You may not be able to buy flood insurance when you most need it.  And you may have no voice in the design and imposition of extreme restrictions on development and redevelopment in the floodplains going forward.

Your help is needed.  Your participation and financial support are critical to enable POSFR to continue working to protect the property rights and development potential for properties in the floodplain or at risk of being mapped into the floodplain. 

In the next month, POSFR would like to file an amicus brief to counter the National Wildlife Federation’s Motion for Preliminary Injunction.  Our brief would highlight the vast development regulations that already exist in the region and that protect endangered species, and also the enormous economic harm that would result from a ban on the sale of flood insurance for new development or substantial redevelopment in the region.  You may support its efforts by becoming a member of POSFR (see attached) and also by making a contribution to its litigation efforts.  If POSFR does not participate in this suit, property owners will not have a voice when it is needed most – and they cannot file unless your support it.

You may send the attached Commitment Form (click on image for a larger view) and your contribution made out to GordonDerr to:

Molly Lawrence
GordonDerr, LLP
2025 First Ave., Ste. 500
Seattle, WA 98121

Please note in the “RE” line for any check:  Deposit in trust for POSFR. 

This issue is truly urgent.  POSFR needs to raise funds NOW to ensure a defense against the National Wildlife Federation’s request for a preliminary injunction.  POSFR is the only entity prepared to make some of the key arguments that should stave off the injunction on the sale of flood insurance.  If POSFR does not participate, many of the key arguments simply will not be made.

POSFR is supported by real estate owners, managers, management companies, business owners, trade associations such as BOMA, Washington REALTORS, Master Builders, Association of Washington Business, Etc.

GUEST Blogger: Molly A. Lawrence |  GordonDerr LLP | 2025 First Avenue, Suite 500, Seattle, WA  98121-3140 | | Phone: 206-382-9540 | Fax: 206-626-0675 |

1 comment:

  1. As part of the arrangement, FEMA and USFWS defined new guidelines the nation would have to put into practice to avoid those has an effect on later on.

    Insurance questionnaire