2012/01/25 Council Agenda Packet

BACKGROUND 1 I. NMFS HAS CONCLUDED THAT IMPLEMENTATION OF THE NFIP 2 JEOPARDIZES SALMON AND ORCAS. 3 FEMA initiated the ESA§ 7(a)(2)consultation process shortly after this Court found that 4 the agency's failure to do so violated the ESA.' After four years of scientific review and inter- 5 agency negotiations, on September 22,2008,NMFS issued a 226-page biological opinion on the 6 impacts of the NFIP on ESA-listed species in the Puget Sound region. Declaration of Jan 7 Hasselman,Ex. 1 (the"FEMA BiOp"or"BiOp"). In addition to chinook salmon,the FEMA BiOp 8 addressed Hood Canal summer chum,Puget Sound steelhead,and Southern Resident killer whales. 9 The FEMA BiOp determined that the implementation of the NFIP jeopardized the survival of each 10 of these species and adversely modified their critical habitat, a result prohibited by§ 7 of the ESA. 11 FEMA BiOp at 149. NMFS's analysis focused on the primary components of the NFIP: mapping, 12 minimum eligibility criteria,the community rating system, and levee maintenance standards,but 13 often emphasized how these elements worked in tandem. See, e.g., id. at 83. 14 A. Mapping 15 The identification of flood-prone areas through the mapping process lies at the heart of the 16 NFIP. Areas within the 100-year flood zone(i.e. areas that have a 1%chance of flooding in any 17 year, also known as the"special flood hazard area"or"SFHA") are subject both to the obligation to 18 purchase flood insurance and to FEMA's minimum eligibility criteria. Id. at 5-12. The primary 19 concern NMFS identified with FEMA's mapping and map revision process is that FEMA's rules 20 effectively encourage the structural modification of floodplains by allowing removal of areas from 21 the SFHA. Id. at 8-11. Once removed from the flood zone,parcels are no longer subject to the 22 insurance requirement and other NFIP standards. Id. at 9. The FEMA BiOp identified almost 160 23 instances of fill being placed in floodplains in Puget Sound, and provided several specific examples, 24 25 In NWF v. FEMA,the Court extensively discussed the operation of the NFIP and its relationship to activities that degrade salmon habitat in Puget Sound. 345 F. Supp.at 1154-59. NWF will not repeat that 26 background here. 27 Earthjustice PLAINTIFF'S MOTION FOR PRELIMINARY 705 Second Ave.,Suite 203 Seattle, WA 98104 28 INJUNCTION(Case No. 2:11-cv-02044-RSM) -2- (206)343-7340