2012/01/25 Council Agenda Packet

1 Moreover, FEMA has sought to shift the ESA burden to communities without specific 2 direction or guidance,with the predictable result that compliance is scattershot and haphazard. For 3 example,out of 280 records of individual floodplain development permits identified in the 2010 4 Annual Report, only 13 triggered a"habitat assessment"at all—even though many projects 5 involved in-water work,vegetation removal, and other serious habitat impacts. 2010 Annual Report 6 at 6; see also 2009 Annual Report at 6(12 out of 567 permits conducted a habitat assessment); Wald 7 Decl.,¶28. Of the 13 projects in the 2010 report that claimed to have conducted habitat 8 assessments, every one of them concluded that the project would have no adverse effects on salmon. 9 2010 Annual Report at 6. An internal NMFS review of the annual report noted serious concerns 10 with the lack of information and identified numerous projects that likely harmed salmon habitat. 11 Hasselman Decl., Ex. 18 (Attachment 1). If even a single project was prevented from being 12 permitted in the protected area or remainder of the floodplain as a result of FEMA's efforts to date, 13 it is not apparent from the available information. 14 ii. Omission of RPA development standards. 15 RPA#3 lays out several highly specific proscriptions that all floodplain development 16 outside the protected area needs to meet to avoid jeopardy. BiOp at 154-57;222-26. Most of these 17 criteria aren't intended to apply within the protected area, where most development is prohibited 18 altogether. Id. at 225. The specific standards and directives are not framed as optional,and refine 19 the BiOp's general prohibition on adverse effects. The list goes on for over two and a half pages but 20 includes a broad range of detailed standards, including in part: 21 • Use"low impact development"techniques,per specific state guidance,to infiltrate 22 generally"all"stormwater runoff onsite, BiOp at 154 and 223; • Maintain equivalent"area, diversity, and function"of riparian vegetation (again per 23 specific state guidance), id. at 224; • Limit bank stabilization and use specific design requirements on all projects,id.; 24 • Prohibit any interference with "hyporheic zone"(i.e., area of floodplain where surface and shallow groundwater are exchanged), id.; 25 • Protect large woody debris, id.; 26 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seattle, 98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -21- (206)343-7340