2012/01/25 Council Agenda Packet

1 reasons discussed below, FEMA's approach to implementing RPA#3 is fundamentally flawed. 2 i. Inadequate and untimely compliance. 3 The RPA directed FEMA to implement the revised eligibility criteria"as soon as 4 practicable,"and no later than two years from the date of the FEMA BiOp for Tier 1 jurisdictions. 5 BiOp at 219("Adopting revised floodplain ordinances as soon as possible in these Tier One areas is 6 necessary to prevent jeopardy and adverse modification of critical habitat..."). Over three years 7 later,however, very little has changed. Only a handful of jurisdictions have voluntarily adopted one 8 of the programmatic options(Door 1 or Door 2),and FEMA has never actually laid out any explicit 9 directive to the Door 3 communities that makes compliance with Door 3 obligatory,or defines with 10 any precision what that obligation is. Adherence to the Habitat Assessment Guidance appears to be 11 optional. Not surprisingly,there is little evidence that Door 3 jurisdictions have committed to make 12 any changes,or taken any steps to revise their practices to require full consideration of the habitat 13 effects of their floodplain permitting. Wald Decl.,¶41. At this point, it is all but impossible to 14 assess what Door 3 requires communities to do, and whether communities are actually doing it.'6 15 There is,however,abundant evidence that NFIP communities are either ignoring these 16 requirements completely or fundamentally misapplying them to continue with a"business as usual" 17 approach to development. In its 2010 report, FEMA admitted that only 24 communities(out of 18 122)had even announced an intention to select any RPA compliance option.2010 Annual Report at 19 3. The majority of communities have also failed to provide information on development activities, 20 as required by RPA#3. Id. at 5-6 (32 communities out of 122 complying in 2010); 2009 Annual 21 Report at 6(37 communities complying in 2009); Hasselman Decl.,Ex. 17 at 6-7(NMFS finding 22 that number of jurisdictions providing necessary information"was very low"). FEMA has imposed 23 no consequences on any community as a result of its failure to comply,to NWF's knowledge. 24 16 Moreover,many of the most important Tier 1 jurisdictions—including King, Snohomish,Whatcom, 25 Jefferson,and Skagit Counties—have submitted applications for approval under"Door 2"but have not yet been approved. Hasselman Decl.,Ex. 16. There is no indication that they are implementing Door 3 26 requirements in the meantime. 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seattle, WA 98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -20- (206)343-7340