2012/01/25 Council Agenda Packet

1 jeopardy. Id. Focusing only on individual actions that, standing alone,could cause take misses the 2 cumulative degradation of habitat and the point of RPA#2. Id. 3 FEMA seeks to sidestep RPA#2 because it considers map revisions"actions with outcomes 4 that it lacks the ability to influence,i.e.,actions that have already taken place." Hasselman Decl., 5 Ex. 9 at 2. As such, "any changes to a floodplain resulting in a change in the floodplain mapping 6 will not be evaluated for ESA compliance . . ." Hasselman Decl., Ex. 10 at 10. But FEMA still 7 completely misses the point. NWF v. FEMA, 345 F. Supp. at 1173 ("There is nothing in the NFIA 8 authorizing, let alone requiring, FEMA to authorize filling activities to change the contours of the 9 natural floodplain. Indeed, such regulations may be counterproductive to the enabling statute's 10 purpose of discouraging development in areas threatened by flood hazards."). Fill and habitat 11 degradation occur because FEMA's regulations provide tangible benefits for altering the floodplain: 12 once altered and"mapped out"of the floodplain, NFIP insurance and other requirements disappear. 13 FEMA has discretion to modify its mapping practices to remove this incentive to fill in the 14 floodplain,which is what the RPA directed it to do. Yet it has refused, still claiming erroneously 15 that it"lacks the ability to influence"fills. 16 For conditional letters of map revision ("CLOMRs"), FEMA has indicated it will consult 17 individually with NMFS prior to issuing them. Buckley Letter at 2.1 1 Unlike regular letters of map 18 revision ("LOMRs"),conditional letters are sought prior to the actual placement of fill and,in 19 FEMA's view, allow FEMA to"influence the project's outcome." Carey Letter at 2.12 However, 20 consultation on individual CLOMRs is not an adequate substitute for changes to the mapping 21 regulations and practices at a programmatic level because the effects of a single project, standing 22 alone,are often difficult to ascertain and unlikely to trigger full ESA protections. Wald Decl.,¶ 13. 23 FEMA's actions in this regard were adopted as a national policy on August 18,2010, applicable to 24 letter or map change submittals received after October 1,2010. Ex. 9. 25 12 FEMA staff recently appeared to reverse course, stating that"FEMA is not obligated to proceed with a Section 7 consultation on any requested CLOMR,"and would consider factors such as the availability of 26 resources in making its decision as to whether to consult. Ex. 10 at 9. 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seatt98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -16- (206)3 - 40 (206)343-7340