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1 In some places, FEMA appears to conflate the"no adverse effect"threshold with one that <br /> 2 would avoid"take"of listed salmon under ESA's § 9. Ex. 10 at 12; see also Model Ordinance at 3 <br /> 3 (under Door 3, applicants must"demonstrate compliance with the ESA" in order to receive permit). <br /> 4 FEMA's approach thus would allow individual developments, even in the protected area,as long as <br /> 5 the proponent shows that the project will not by itself kill or injure salmon. Id. But applying the <br /> 6 "take"standard to an individual development does not prevent adverse effects that cumulatively <br /> 7 degrade habitat at the landscape level and cause jeopardy. Wald Decl.,¶29. In the case of <br /> 8 floodplain development, it will typically be difficult to establish that a single project results in <br /> 9 "take"of listed salmonids, or causes other effects that would be"significant"under this guidance, <br /> 10 even though it would contribute to cumulative habitat degradation. Id. But that does not mean the <br /> 11 project isn't harmful or has no adverse effects. Id. The RPA is not framed in terms of avoiding take <br /> 12 of individual fish,but in terms of eliminating specific habitat impacts on multiple values like water <br /> 13 quality and quantity, flood volumes and velocities,spawning substrate and/or floodplain refugia. <br /> 14 BiOp at 154. NMFS has discouraged the use of"Door 3"to implement the RPA for this very <br /> 15 reason, noting that"the traditional project-by-project strategy often fails to capture the full range of <br /> 16 effects, allowing incremental,systemic loss of essential ecosystem features to occur." Hasselman <br /> 17 Decl., Ex. 17 at 6. Yet under all three doors,FEMA relies almost entirely on assessments of <br /> 18 individual project impacts and allows projects as long as they do not,by themselves,cause <br /> 19 identifiable harm to salmon. <br /> 20 v. Inadequate development tracking and oversight. <br /> 21 Compounding these shortcomings in FEMA's three-door approach to implementing RPA <br /> 22 #3 is a near-total lack of oversight by FEMA or NMFS. Wald Decl.,¶30. Under all three"Doors," <br /> 23 jurisdictions oversee habitat assessments and make permitting decisions in floodplains by <br /> 24 themselves,without approval or oversight from FEMA. However,most(if not all)jurisdictions <br /> 25 lack the expertise, funding,and the incentives to implement these requirements properly. Id.; see <br /> 26 <br /> 27 Earthjustice <br /> PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave..Suite 203 <br /> Seattle, WA 98104 <br /> 28 INJUNCTION (Case No. 2:11-cv-02044-RSM) -26- (206)343-7340 <br />