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Key Deer at Center of Flood Insurance Court Battle
 In a decision handed down last week by the U.S. Court of Appeals, 11th Circuit, a group of Florida’s Key deer enthusiasts has won the latest skirmish in a 24-year-old battle with the Federal Emergency Management Agency (FEMA) requiring it to consult with the U.S. Fish and Wildlife Service (FWS) before issuing flood insurance in the endangered deer’s habitat.
Rejecting an appeal from both government agencies, the court upheld a lower court injunction prohibiting FEMA from issuing flood insurance in Key deer habitat and gave the agency the option of withdrawing Monroe County from the program until new eligibility criteria are established — just in time for hurricane season in Florida.
The decision affects not only development near habitat for the deer, a relative of the more common white-tailed deer prevalent north of the Keys, but potentially any development in coastal areas where participation in the federal flood insurance program is a requirement for home buyers looking to obtain mortgages.
The decision is based on flimsy precedent and ignores the results of NAHB v. Defenders of Wildlife, a Supreme Court case that the judge cited in his own decision.
In that case, the justices ruled that because the U.S. government has no choice but to hand over administration of certain Clean Water Act permitting programs to states that meet established criteria, it cannot tack on additional requirements, like consultations on Endangered Species Act requirements, before transferring authority to the state.
The judicial decisions on the Key deer have treated the Endangered Species Act as a statute that supersedes all other law, Ward said, and “that’s simply not the case; nor is it what Congress intended when it passed the act.”
Since 1984, FEMA has been defending its flood insurance program from attacks by environmental groups concerned with preserving the deer’s habitat.
In 1997, the agency even began to require Monroe County to allow the Fish and Wildlife Service to review every building permit and insert conditions designed to protect the animal. If the county did not accept the Service’s conditions, it risked being excluded from the national flood insurance program.
Environmentalists again sued FEMA and FWS in 1998 and 2003, claiming that the protections put in place were ineffective. In 2005, the Southern District of Florida agreed and enjoined FEMA from issuing flood insurance in suitable Key deer habitat until the two agencies consulted with each other further.
In its appeal to the 11th Circuit, FEMA cited the Supreme Court decision on the NAHB case and argued that it did not have to consult with the FWS because it was required by Congress to issue flood insurance to eligible communities. NAHB filed a friend of the court brief explaining that because of the requirement, FEMA had no discretion to consider impacts on endangered species.
In its decision, the court said that FEMA does have discretion to consider endangered species impacts because “although FEMA is required to issue flood insurance to localities that satisfy certain criteria, FEMA itself is charged with developing those criteria and enjoys broad discretion in doing so.”
FEMA must now decide if it wants to ask the 11th Circuit to rehear the case or petition the U.S. Supreme Court to review it, Ward said.
For more information, e-mail Calli Schmidt at NAHB or call her at 800-368-5242 x8132.
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