NWF actions are safeguarding taxpayer money by bringing higher standards of ecosystem protection to costly and reckless federal flood-zone construction policies
Roger Di Silvestro
MAMMAL SPECIES living on islands tend to become diminutive compared to their continental relatives, and the deer of the Florida Keys are no exception. Looking like an otherwise perfect specimen of the Virginia white-tailed deer, of which it is an endangered subspecies, the Key deer stands scarcely 2 feet tall at the shoulder and rarely weighs more than 75 pounds. Nevertheless, poachers reduced its numbers to perhaps 50 animals by the 1940s. Protecting Key deer became one of NWF’s first major commitments after the organization was founded in 1936.
Today the poaching has largely stopped, but survival of the 600 deer that live only on Big Pine and a few nearby islands nevertheless remains in jeopardy. The main threat is development, which takes up deer habitat and brings more people to the Keys, where collisions with motor vehicles are among the primary sources of deer mortality. Ironically, the federal government—charged with protecting Key deer under the Endangered Species Act—has been underwriting the habitat destruction that threatens the deer as well as seven other listed species.
How so? The Federal Emergency Management Agency (FEMA) has been issuing flood insurance to property owners building on floodplains in the Keys—insurance that private companies will not provide and that makes development possible in deer habitat. To stop this harmful process NWF, the Florida Wildlife Federation and Defenders of Wildlife sued FEMA in 1990 for failing to consult with the U.S. Fish and Wildlife Service (FWS) on this action, as required by the federal Endangered Species Act for federal actions that may harm listed species. That suit led to a 1994 ruling that required consultation.
The consultation report, called a biological opinion, was released in 1997. “It was very weak,” says Randy Sargent Neppl, NWF wildlife conservation counsel. “It didn’t require more than voluntary measures.” However, the biological opinion stated that if FEMA did not produce a habitat conservation plan within five years, the opinion would have to be reassessed. No plan appeared, and FWS released a new opinion in 2003; ironically it was nearly identical to the first one, driving NWF back to court. “We said that FWS did not follow up to see if its recommendations were being followed, and we asked for and won a court injunction on new development in the Keys,” Neppl says. The injunction will remain until FWS produces a new biological opinion.
The ruling affects a few hundred acres of private land, but the legal implications extend to all states where builders rely on federal flood insurance. The injunction requires that before floodplains are developed, FEMA must consult with FWS to ensure no harm to listed species. “None of the groups involved in the case want to stop all development,” says John Kostyack, an NWF executive director who has represented NWF on the lawsuit for the past 15 years and has argued the case in court, “but we do want to end a federal subsidy that encourages development in areas critical to the survival of threatened and endangered species.”
The outcome of the Keys FEMA court case benefits not only threatened and endangered species but also the taxpayers who would have footed the bill for drowned structures. Floods and severe storms, according to a recent NWF report on global warming and rainfall, are among the most costly of weather and climate disasters, tallying more than $115 billion in damages from 1960 to 2005. Floods accounted for 164 million of some 197 million people affected by disasters in 2007. The Centre for Research on the Epidemiology of Disasters in Brussels, Belgium, estimates that in recent decades, the number of flood and storm disasters worldwide has risen 7.4 percent yearly. Disasters increase not only because storms may be becoming more intense in the wake of global warming, but also because increasing numbers of people are moving into flood-prone areas or alternating the way natural flood systems work. However, lawsuits brought by NWF and other groups in Washington state’s Puget Sound and Mississippi’s Yazoo River Basin are helping to ensure that development in floodplains tightens up.
Saving Puget Sound
In Puget Sound, another NWF suit against FEMA’s flood-insurance program involved issues almost identical to those revolving around Key deer, though the wildlife species in question were much different. An ongoing survey of Puget Sound killer whales, or orcas, last fall reported the loss of seven of the animals in what could be the biggest decline among the sound’s orcas in a decade. The sound is home to three orca pods that were cut to a total of 83 animals by the decline; each pod lost at least one member. The loss of two females of breeding age was especially serious, says Ken Balcomb, a senior scientist with the Center for Whale Research on San Juan Island, because their deaths reduce the sound’s breeding females to only 10 individuals.
Balcomb blames the decline on a dwindling supply of chinook salmon, which studies show account for 80 percent of the diet for Puget Sound’s killer whales. About half of the historic salmon stocks coming out of local rivers are extinct, and surviving stocks have declined by about 10 percent in recent decades. Development is one of the leading causes of salmon decline, and FEMA flood insurance has been exacerbating the problem. In 2003 NWF brought a suit against the agency, alleging that the flood-insurance program encouraged coastal development that jeopardized the survival of Puget Sound salmon listed under the federal Endangered Species Act. The federal district court in Seattle agreed in 2004, ordering FEMA to consult with the National Marine Fisheries Service (NMFS) on potential wildlife threats, as required under the law.
NMFS released its biological opinion last fall, declaring that FEMA’s insurance program did jeopardize salmon survival in violation of the Endangered Species Act. The report indicated that the FEMA program could result in a 30-percent reduction of Puget Sound’s chinook salmon, robbing orcas of their prey base. The terms of the biological opinion, which would affect some 270 municipalities in Washington, effectively prevent unmitigated floodplain development until new FEMA regulations go into effect in September 2010. Meanwhile, NWF is putting together a coalition of conservation groups to help ensure that the new regulations achieve protections for Puget’s water quality and wildlife. “People have been wanting to change how floodplains are managed for decades, and this biological opinion provides the scientific and legal foundation to finally accomplish that goal,” says Dan Siemann, senior environmental policy specialist in NWF’s Seattle office. “It’s the first real opportunity we’ve had for really sweeping changes that will have huge positive effects. But the important thing to realize is that this is not just about salmon and wildlife protection. It’s also about getting people out of harm’s way, reducing taxpayer expenses due to flood damage and preparing for increased storm water due to climate change. Preventing development in floodplains benefits everybody.”
Renewed Life for the Yazoo River
Urged on by its members from Mississippi, Congress in 1941 authorized the U.S. Army Corps of Engineers to design a water project in the lower Mississippi Delta that would dry out flooded private lands for agriculture. Called the “Yazoo Pump,” the project included a pumping station that would take 14,000 cubic feet of water per second—the average amount of flow for the Delaware River between New Jersey and Pennsylvania—out of the lower Mississippi Delta during high-water periods and dump it into the Yazoo River.
Under the original plan, the project would have drained more than 314 square miles of wetland and bottomland forest habitats in one of Mississippi’s most sparsely populated regions, an area about the size of New York City between the Mississippi and Yazoo Rivers; NWF senior resource specialist David Conrad calls it “America’s Amazon.” Vital to millions of migrating waterfowl and shorebirds, the deeply forested region encompasses one of the last strongholds of the threatened Louisiana black bear. At a cost of hundreds of millions of tax dollars, the Yazoo Pump would have reduced the Mississippi Delta’s natural capacity for holding back high water and for protecting downstream communities such as New Orleans from floods. “This plan was drafted in the Dark Ages by engineers who were determined to turn rivers into ditches and who had no sensitivity to the natural environment,” says Gerald Barber, past president of the Mississippi Wildlife Federation (MWF) and former chair of NWF’s board of directors.
NWF partnered with MWF to oppose the project in the early 1940s, engaging in a battle that would continue beyond the turn of the millennium. In 2006 NWF and a delegation of Mississippi farmers, landowners and conservationists urged Steve Johnson, administrator of the U.S. Environmental Protection Agency (EPA) to stop the plan. In spring 2008, 45,000 citizens, including almost 6,000 NWF volunteer activists, called on EPA to “dump the pump.” The coalition, Barber says, was something of a ragtag army, but that pump proponents chose “the wrong rag-tag army to take on.” The following August, Johnson issued the twelfth project veto ever in EPA history, ending the 67-year battle to protect Yazoo wetlands. For Barber, who fought the project for 27 years, it hardly seemed possible that the fight was over. “I never believed that the dragon was dead,” he says. “I’m still not sure—it’s just lying on the ground.”
The victories in Florida, Washington and Mississippi provide protection for important wildlife habitat and suggest that business as usual in floodplains is changing. But over each of these sites looms another issue with much broader impact that could undercut years of conservation work.
The Climate Factor
Global warming could limit the promise that changes in floodplain development offer the nation as a whole. “Because warmer air can hold more moisture, global warming is expected to yield heavier precipitation in coming years,” says Amanda Staudt, NWF climate scientist. “Of course, no single storm or flood can be blamed directly on global warming, but trends in recent years suggest that with rising global temperatures will come rising local floods.”
Higher volume in storm runoff could overload water-management systems as heavy rainstorms that now occur in the eastern United States every 20 years increase in frequency to every 8 years. As glaciers and polar ice melt, some scientists predict a sea-level rise of 2.6 to 6.6 feet by 2100, which would flood coastal regions such as the Florida Keys. Deer would be squeezed out of the Keys, a disaster for which managers at the Key Deer National Wildlife Refuge already are planning. “For species like the Key deer, global warming will bring a host of new threats, like more intense storms and rising sea levels,” Kostyack says.
The conditions that global warming will impose “will require increasingly wiser and more reasoned policies for wildlife protection and for use of marginal lands,” Kostyack says. “The recent NWF victories on floodplain development are steps in the right direction for dealing with the looming, and much greater, challenge of living on a warming globe.”
Roger Di Silvestro is a National Wildlife senior editor.
NWF Action: The Struggle Continues
NWF is continuing to work on floodplain development as new issues arise. The Global Warming Safeguards Program is an NWF initiative that, among other goals, works to reform flood insurance policy. NWF recently joined court action designed to improve FEMA flood insurance in Oregon. NWF’s senior resource specialist, David Conrad, was appointed last year by the U.S. Army Corps of Engineers and FEMA as a representative on the review team of the National Levee Safety Committee, directed by Congress to make recommendations to Congress on a potentially new National Levee Safety Program. The only environmental organization asked to serve on the review team, NWF strongly criticized the narrow scope of the committee’s draft report. For more information, see "What We Do to Protect Water Resources."
Flood Insurance: A Catastrophe of Its Own
Flood insurance is mandatory for people who live in high-risk areas and hold a mortgage from a federally insured or regulated lender. Congress created the National Flood Insurance Program, housed in the Federal Emergency Management Agency (FEMA), in 1968 partly to provide this insurance in flood zones where private insurers were (and largely still are) unwilling to bear the economic risks. Nearly 20,000 U.S. communities participate in the insurance program. According to a 2008 report by the Government Accountability Office, more than 90 percent of the program’s 5.4 million policyholders (as of 2006) own residential properties, the majority of them in high-risk flood zones where annual premiums stand at little more than $1,400.
By providing insurance in high-risk flood zones, FEMA encourages building that inevitably will burden taxpayers with costly, repetitive insurance claims while causing habitat destruction. The flood-insurance program lists some 140,000 properties that have made two or more claims in a rolling 10-year period, says David Conrad, NWF senior resource specialist. In recent years, these properties—about 2.5 percent of total program policies—have accounted for more than 30 percent of total payments, which amount to more than $35 billion, he says.