2012/01/25 Council Agenda Packet

2. FEMA Has Not Implemented RPA #3. 1 RPA#3,which calls for changes to FEMA's eligibility criteria, is arguably the most 2 important of the RPA elements. NWF v. FEMA, 345 F. Supp. at 1164, 1174(describing 3 relationship between eligibility criteria and harm to salmon). The RPA outlines an integrated and 4 highly specific set of changes to the NFIP eligibility criteria aimed at eliminating the adverse 5 impacts of new development in floodplains. It articulates a two-tiered structure under which the 6 greatest level of protection would be given to a"protected area"comprised of(a)the floodway, 7 (b)the channel migration zone("CMZ") plus 50 feet, and (c)a riparian buffer zone("RBZ").14 8 NMFS conceived of the protected area primarily as a"no disturbance"zone, except for a narrow list 9 of permissible activities that includes repair of existing structures,maintenance of utilities, and 10 restoration projects. BiOp at 222-23. In the rest of the floodplain outside the protected area,the 11 RPA establishes somewhat more flexible protections under which new development is permissible 12 as long as the loss of floodplain storage is"avoided, rectified, or compensated for,"and any indirect 13 adverse impacts to habitat values are mitigated"such that equivalent or better salmon habitat 14 protection would be provided." RPA#3,which includes a five-page appendix,provides extensive 15 direction on how to implement these standards,including a number of specific directives pertaining 16 to density levels,vegetation removal and impervious area,roads, levees, stormwater, 17 redevelopment,and other issues. Id. at 153-58,223-24. 18 The RPA directed FEMA to"ensure"that all NFIP communities implement these floodplain 19 management measures"as soon as practicable"but in no event later than a phased schedule under 20 which all jurisdictions would be in compliance by the end of three years.'5 During this 21 22 14 The"floodway"is the portion of the stream channel that must be reserved in order to carry the baseflood without increasing the surface elevation by more than a designated height. BiOp at 6. The size 23 of the RBZ,which is determined through a state Department of Natural Resources 2007 stream typing system,is not static but depends on the specifics of the stream. Id.at 154; Second Errata Notice at 5. 24 15 The RPA,issued in September of 2008,required that a third of all NFIP jurisdictions,including all 25 "Tier l"jurisdictions, come into compliance within two years,and another third within two and a half years. Id. at 155. By letter,NMFS later extended these deadlines so that all jurisdictions were to be in 26 compliance at the end of three years,or Sept. 22,2011. Hasselman Decl.,Ex. 12. 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave..Suite 203 Seattle, WA 98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -18- (206)343-7340