2012/01/25 Council Agenda Packet

1 Nowhere does the guidance actually define in a scientifically useful manner what constitutes an 2 "adverse effect"on salmon habitat. Id. at 23. It provides few,if any,clear, substantive standards as 3 to what kinds of effects are permissible in the protected area or remainder of the floodplain.Wald 4 Decl.,1122; see also Ex. 17(NMFS guidance states that any vegetation removal,bank armoring, 5 placement of fill, creation of impervious surface, straightening of stream channels"should always 6 be assumed to have adverse effects"). Without mandatory standards, and clear definitions of critical 7 terms, it is highly likely that project proponents will be able to prepare an assessment that finds no 8 adverse impact, and that jurisdictions will accept those conclusions. Wald Decl.,¶26. It is notable 9 that this guidance(like the Model Ordinance and checklist)has never been approved by NMFS. 10 Moreover, under the guidance, virtually any impact can be offset using"compensatory" 11 actions even though there are a number of serious,well-recognized problems with the concept. 12 Habitat Assessment Guidance at 23; Carey Letter at 5 (focusing on"net effect with mitigation"); 13 Wald Decl.,¶23-24. The guidance provides virtually no direction or oversight on how to conduct 14 and assess compensatory mitigation, other than offering suggestions for applicants to"keep in 15 mind" in developing mitigation plans(e.g., increasing mitigation ratios). Habitat Assessment 16 Guidance at 26. The guidance also contains no discussion, let alone binding obligations,related to 17 monitoring or adaptive management,which are crucial for any mitigation project. Wald Decl.,¶25. 18 Not surprisingly, Door 3 jurisdictions have embraced FEMA's invitation to use mitigation to offset 19 additional harm,even in the protected area. See, e.g., Hasselman Decl.,Ex.20.18 20 iv. Failure to consider cumulative effects. 21 The BiOp documents how floodplain development causes jeopardy through the cumulative 22 effects of many individual projects—the effects of which are minor when looked at in isolation- 23 across the landscape and over time. BiOp at 95 ("Impacts of even small scale developments in 24 25 18 The BiOp does not allow compensatory mitigation in the protected area. BiOp,at 154. The Guidance is not been entirely clear on this point,raising the risk that compensatory mitigation would be allowed in 26 the protected area. Habitat Assessment Guidance at 27. 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seattle, WA 98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -24- (206)343-7340