2012/01/25 Council Agenda Packet

B. Levee Maintenance Criteria 1 A related issue identified in the FEMA BiOp is a set of requirements and incentives that 2 result in the removal of vegetation from levees. BiOp at 13-14. Removal of trees and other large 3 vegetation has a variety of adverse impacts to salmon, including loss of shade that keeps streams 4 cool, loss of nutrients, and reduced woody debris necessary to maintain complex habitat features. 5 Id.at 85-87. The BiOp documents a close relationship between FEMA and the U.S. Army Corps of 6 Engineers ("Corps"), which oversees levee maintenance as part of its own regulatory and funding 7 programs. Id. at 13-14. Under the Corps' criteria, any vegetation over a certain diameter on levees 8 must be removed,or eligibility for federal repair funding from the Corps is lost. Id. (documenting 9 "combined fiscal incentives"to remove vegetation and harming rivers). FEMA does not have its 10 own levee vegetation standards and hence uses the Corps' criteria, i.e., a deficiency in meeting the 11 Corps' maintenance standards is treated as a deficiency for FEMA's purposes. Id. at 14. Thus, 12 where a levee sponsor elects to leave vegetation in place on its levees,it would not only become 13 ineligible for Corps' funding to repair that structure. but FEMA would decline to"recognize"that 14 levee and would consider land behind it as remaining in the floodplain. The FEMA BiOp 15 documented just such a situation where the City of Bothell removed 800 trees in the riparian zone of 16 a salmon-bearing stream to avoid FEMA"re-designating" land behind its levee as subject to 17 flooding. Id. at 11. The BiOp concludes that FEMA's practices create incentives to remove 18 vegetation from levees. Id. at 87. If FEMA did not rely on the Corps' vegetation removal standard, 19 the BiOp states that"it is likely that at least some levee sponsors would opt to retain riparian 20 vegetation to protect fish habitat." Id. at 86. 21 C. Minimum Eligibility Criteria 22 The most significant aspect of the NFIP is the minimum criteria that communities need to 23 meet in order to participate in the NFIP. Id. at 14-16. The FEMA BiOp notes the"strong 24 incentive"to participate in the NFIP to ensure the availability of flood insurance and disaster 25 assistance. Failure to comply with the minimum criteria can result in suspension from the program, 26 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seattle, WA 98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -4- (206)343-7340