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1 implementation phase,NMFS required FEMA to collect data on development activities to ensure <br /> 2 that any adverse impacts are known,assessed,and subsequently mitigated. Id. at 155. <br /> 3 After NMFS issued its BiOp,FEMA decided it would not make changes to its eligibility <br /> 4 regulations. Carey Letter at 4-5. Instead, it developed an alternative strategy that relies primarily on <br /> 5 existing regulations that require communities to show that"all necessary permits have been <br /> 6 received" for individual development projects. 44 C.F.R. § 60.3(a)(2); Carey Letter at 4. <br /> 7 According to FEMA, this requirement can be applied to implement RPA#3 on a project-by-project <br /> 8 basis either through direct compliance with the ESA(i.e.,via a§ 7 consultation or other ESA- <br /> 9 approved process),or through an individual habitat assessment that shows"no adverse effect or <br /> 10 modification will occur with the project or that appropriate mitigation has taken place to have no net <br /> 11 effect." Carey Letter at 5. Additionally,FEMA proposed two related programmatic approaches <br /> 12 that individual NFIP communities may voluntarily pursue, one through adoption of a"model <br /> 13 ordinance,"and the second through a"checklist"(based on the model ordinance)documenting that <br /> 14 the community's development criteria are equally as protective as the RPA. Id. These three options <br /> 15 have been labeled by FEMA as the three`doors"to ESA compliance: Door 1 (model ordinance), <br /> 16 Door 2(checklist), and Door 3 (permit-by-permit showing of no net adverse effects). FEMA allows <br /> 17 NFIP communities to choose which"compliance pathway"to pursue. <br /> 18 FEMA has developed guidance documents to implement these options, including a Door 1 <br /> 19 "Model Ordinance"(Hasselman Decl.,Ex. 13), a Door 2"checklist"(Hasselman Decl., Ex. 14),and <br /> 20 guidance on how to prepare habitat assessments and conduct mitigation for individual projects <br /> 21 (Hasselman Decl.,Ex. 15,hereinafter, "Habitat Assessment Guidance"). To date,FEMA has <br /> 22 approved four jurisdictions as having adopted the model ordinance and an additional six <br /> 23 jurisdictions via the"Door#2"checklist. Hasselman Decl., Ex. 16;Wald Decl.,¶38. Three dozen <br /> 24 more communities have requested approval under Door 2. All other NFIP communities,including <br /> 25 virtually all "Tier l"jurisdictions, are considered by FEMA to have defaulted to Door 3. For the <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-cv-02044-RSM) -19- (206)343-7340 <br />