2012/01/25 Council Agenda Packet

1. FEMA Has Not Implemented RPA #2. 1 RPA#2 seeks to alter regulations and practices that authorize changes to floodplain maps 2 based on fill, levee construction, and other landscape modifications. Supra,at 6-7;44 C.F.R. 3 § 72.1-.2; see also NWF v. FEMA, 345 F. Supp. 2d at 1164 ("By allowing individuals to remove 4 their property from regulation by artificially filling it,FEMA is in effect encouraging filling"). 5 NMFS found that such changes were within FEMA's authority. BiOp at 153. Indeed, much of the 6 language in RPA#2 was proposed by FEMA itself. Hasselman Decl.,Ex. 8 at 4-7. 7 FEMA,however,has not changed its approach to map amendments to remove these 8 incentives. Instead, it has stated that it will simply"continue its practice of requiring applicants to 9 obtain the applicable ESA permits"before issuing most letters of map change. Buckley Letter at 2. 10 But if FEMA's existing"practice"had been adequate, the FEMA BiOp would not have found 11 jeopardy and recommended changes. Moreover, FEMA's proposal to require map change 12 proponents to"obtain applicable ESA permits" is misleading. Unless there is a federal permit or 13 funding involved,there is no"ESA permit"to obtain. 16 U.S.C. § 1536. While parties may 14 choose to enter into a"habitat conservation plan"with NMFS to ensure they are not subject to 15 potential § 9 liability, 16 U.S.C. § 1539(a),this is a voluntary process,not a regulatory one. 16 Moreover, individual fills often degrade habitat and can contribute to jeopardy without violating the 17 § 9"take"prohibition. Declaration of Alan Wald,¶29.10 Fill, like many other floodplain 18 development activities, is a cumulative problem that may look relatively benign for one individual 19 project but, across a watershed and over time, it pushes a species towards extinction, i.e.,causes 20 21 earlier case). Additional materials in support of NWF's standing will be filed at an appropriate stage of this litigation in any event. 22 10 NWF is offering the expert testimony of hydrogeologist and floodplain manager Alan Wald in support 23 of this motion. NWF had also planned to support this motion with fact testimony from DeeAnn Kirkpatrick,a former NMFS biologist who led the team that developed the FEMA BiOp. 24 Ms.Kirkpatrick's former employer has sought to prohibit her from providing testimony in this case,and the parties have not yet been able to resolve the issue. Unless the dispute can be resolved between the 25 parties,NWF intends to seek an appropriate order from this Court allowing Ms. Kirkpatrick's testimony. NWF has already provided FEMA and its counsel with a draft of the testimony, so no prejudice will arise 26 to FEMA if her declaration in support of this motion is filed subsequent to date of this motion. 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seattle, WA 98104 28 INJUNCTION (Case No. 2:11-cv-02044-RSM) -15- (206)343-7340