2012/01/25 Council Agenda Packet

• Site projects outside the floodplain if possible,or at the point in the parcel farthest from 1 any stream if not,id.; 2 • Maintain low density of five-acre lots or greater,id.; • Limit new impervious surfaces to no more than 10%of site, and limit clearing of native 3 vegetation to 35%,id. at 225; • Design and locate projects so that they will not need new structural protection, id.; 4 • Prohibit new road crossings, id., and; • Employ concepts of"cluster development, density transfer, credits and bonuses, planned 5 unit development and transfer of development rights"wherever possible, id. 6 Not a single one of these standards exists under the Door 3 "permit-by-permit"approach 7 applicable to most communities. They are not incorporated into any requirement or directive. They 8 are either not mentioned in the vague Habitat Assessment Guidance,or are made optional. Under 9 Door 3,a project that violates every single one of these specific proscriptions could be authorized. 10 At best, all that is required would be an"assessment"and mitigation package, prepared by the 11 project proponent and reviewed by the community, claiming that no net adverse effects would 12 occur. Id.; Wald Decl.,¶26. 13 The other two compliance pathways are not notably better. Some of these directives are 14 absent altogether from the Model Ordinance and checklist. For example,these make no mention of 15 requirements relating to large woody debris, or the tracking and reporting that is emphasized so 16 heavily throughout the FEMA BiOp. The Ordinance makes voluntary many RPA standards,for 17 example the delineation of CMZs,use of stricter variance criteria and cluster development,and 18 adoption of"low impact development"criteria to eliminate stormwater. Id. at 7 ("All language is 19 optional unless noted in the commentary as an NFIP requirement[],an ESA requirement[],or 20 Washington state law...")(emphasis in original). Crucially,while the Ordinance includes a 21 provision that appears to prohibit compensatory mitigation in the protected area(a critical protection 22 of the BiOp), it is identified as optional. Id. at 53.17 And for standards identified as mandatory,the 23 Ordinance allows them to be waived as long as there is an individual habitat assessment and 24 25 t'Not surprisingly, some jurisdictions approved by FEMA as compliant have not adopted this"optional" proposed language from the Model Ordinance. Wald Decl.,¶ 18. In other words,FEMA allows them to 26 use compensatory mitigation in the protected area, in clear violation of RPA standards. 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seattle, WA 98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -22- (206)343-7340