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1 funding;C)FEMA is required to use,and encourage grantees to use, specific funding sources for <br /> 2 projects that benefit salmon; D)FEMA is required to only recognize new levees and floodwalls if <br /> 3 they include various habitat-protecting features. <br /> 4 RPA#6 (Mitigation): For any development activity in floodplains that occurs"prior to full <br /> 5 implementation of RPA elements 2, 3,and 5,"FEMA is directed to"ensure"that appropriate <br /> 6 mitigation occurs. Id. at 162. An example offered in the RPA is the contribution of financial, <br /> 7 technical, or physical support to floodplain restoration projects. <br /> 8 RPA#7 (Reporting/Monitoring): Finally,FEMA is directed to undertake regular <br /> 9 monitoring and reporting of progress towards each of the other RPA elements. The purpose of this <br /> 10 reporting is to determine whether additional actions are needed to avoid jeopardy,which is <br /> 11 "particularly important in assessing on-the-ground NFIP effects that are occurring, such as <br /> 12 continued development in the floodplain,through either issuance of[map changes] or floodplain <br /> 13 development permits." Id. at 162. A key focus of this reporting is to determine whether"additional <br /> 14 or alternate actions are needed"and to ensure mitigation for development that occurs while other <br /> 15 RPA elements are being implemented. Id. at 163; see also id. at 155 (additional measures to ensure <br /> 16 mitigation occurs for interim development). <br /> 17 The FEMA BiOp includes an incidental take statement that insulates both FEMA and NFIP <br /> 18 communities from liability for harm to listed species,provided they comply with the RPA and <br /> 19 provided that the rate of floodplain development does not exceed historic rates. Id. at 168. Take is <br /> 20 only exempt from ESA liability once communities have adopted the more protective floodplain <br /> 21 management criteria contained in RPA#3,and only after full mitigation has occurred for any <br /> 22 development approved after NMFS issued the FEMA BiOp. Id. at 173. <br /> 23 On April 24,2009,a senior FEMA official sent a letter to NMFS outlining how the agency <br /> 24 intended to respond to the FEMA BiOp. Hasselman Decl.,Ex.4("Buckley Letter"). Where the <br /> 25 RPA articulated detailed standards and explicit accountability,the Buckley Letter laid out an <br /> 26 <br /> 27 Earthjustice <br /> PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 <br /> Seattle, WA 98104 <br /> 28 INJUNCTION(Case No.2_11-ev-02044-RSM) -8- <br /> (206)343-7340 <br />