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1 mitigation,adopted consistent with their flawed guidance, to achieve a poorly defined no adverse <br /> 2 effect standard. See infra§ C(2)(iii). Thus,even under the model ordinance,a project could violate <br /> 3 every one of the RPA's standards as long as there is a habitat assessment finding no net adverse <br /> 4 effects. Model Ordinance at 27-28,49, 53. <br /> 5 Similarly,FEMA has been approving jurisdictions as compliant under"Door 2"despite <br /> 6 significant departures from the Model Ordinance language. Wald Dec1.,¶ 18-19. For example, <br /> 7 jurisdictions have been "approved"despite a much reduced"protected area"from that required by <br /> 8 the RPA. Id.; Hasselman Decl.,Ex. 19(letter from Northwest Indian Fisheries Commission, <br /> 9 hereinafter, "NWIFC Letter")at 6("Rubberstamping the existing riparian management regime will <br /> 10 perpetuate the decline of salmon to extinction."). Simply put,NMFS's careful and detailed list of <br /> 11 development standards contained in RPA#3 is all but eviscerated in the model ordinance, checklist <br /> 12 and permit-by-permit options. <br /> 13 iii. FEMA's habitat assessment guidance lacks substantive standards <br /> or clear definitions. <br /> 14 <br /> At the heart of each of FEMA's three"doors" is a duty to assess whether individual projects <br /> 15 <br /> have adverse effects to salmon habitat. Where a"habitat assessment"shows that there will be no <br /> 16 <br /> adverse effects,the project is allowed; otherwise,effects must be mitigated. Carey Letter at 5. The <br /> 17 <br /> Model Ordinance directs that such habitat assessments be prepared consistent with FEMA's Habitat <br /> 18 <br /> Assessment Guidance,and some Door 2 jurisdictions have adopted this guidance as well. It <br /> 19 <br /> remains unclear whether and how"Door 3"requires use of this guidance. Whether mandatory or <br /> 20 <br /> not,because individual communities are left to determine for themselves whether a project rises to <br /> 21 <br /> the level of impermissible harm, it is crucial that the guidance be as objective,specific,and <br /> 22 <br /> mandatory as possible if it is even arguably to meet the RPA standards. <br /> 23 <br /> FEMA's guidance falls far short of providing such direction. Most of the guidance is <br /> 24 <br /> advisory and framed as suggestions rather than as clear mandatory standards. See, e.g., Habitat <br /> 25 <br /> Assessment Guidance at 5 ("a step-by-step assessment process is recommended in this guidance"). <br /> 26 <br /> 27 Earthjustice <br /> PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 <br /> Seattle, WA <br /> 28 INJUNCTION (Case No. 2:11-cv-02044-RSM) -23- (20104 <br /> (206)343-734040 <br />