2012/01/25 Council Agenda Packet

1 floodplains have cumulative effects. Imprecision in modeling supports assertions that each 2 incremental increase in flood levels will be negligible."); id. at 138 (`'NMFS' review indicates 3 systemic,aggregate degradation of[habitat features] that in most watersheds are already impaired to 4 the point that they limit productivity."); Wald Decl.,¶29. Consideration of these cumulative effects 5 under the ESA is crucial. Pacific Coast Fed. of Fishermen's Assoc.v.NMFS,265 F.3d 1028, 1035- 6 36(9th Cir.2001)(setting aside ESA consultation that ignored cumulative effects of multiple minor 7 habitat-altering actions); Preserve our Island v. U.S. Army Corps of Engineers,2009 WL 2511953 8 (W.D. Wash. 2009)("No single project or human activity has caused the depletion of the salmon 9 runs,the near-extinction of the SR Orca,or the general degradation of the marine environment of 10 Puget Sound. Yet every project has the potential to incrementally increase the burden upon the 11 species and the Sound."); see also NWF v.NMFS, 524 F.3d at 930 (setting aside ESA consultation 12 analysis under which"a listed species could be gradually destroyed, so long as each step on the path 13 to destruction is sufficiently modest"). 14 Implementing RPA#3 based on an individual,permit-by-permit habitat assessment 15 approach cannot"ensure"against jeopardy because it is largely blind to the problem of cumulative 16 effects. Wald Decl.,¶29;Ex. 17 at 3 (NMFS guidance) ("If any adverse effects were allowed at the 17 site level it would be difficult to avoid adverse effects at the reach scale."). FEMA's habitat 18 assessment guidance does not prohibit actions that could cumulatively contribute to jeopardy,nor 19 does it provide any guidance at all on how to assess potential cumulative effects. Id.; Habitat 20 Assessment Guidance at 21. Instead, it notes only that cumulative effects should be considered 21 wherever there are"measurable or observable negative effects,"thereby likely sidestepping the 22 entire problem altogether. It also notes that cumulative effects assessment is"often a challenge," 23 uselessly suggesting that such effects must be estimated"in some manner." Id. The guidance 24 provides no substantive standards to follow—i.e.,a particular level of effect that is prohibited—or 25 even authorities to consult as to how to perform the assessment. 26 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seattle, WA28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -25- 9 (206)343-73400104