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NFIP Biological Opinion Issues Page
9/22/2008 Endangered Species Act – Section 7 Consultation Final Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the Implementation of the National Flood Insurance Program in the State of Washington Phase One Document – Puget Sound Region

“The primary element of FEMA’s minimum criteria that affects listed salmonids and their habitats is the requirement to elevate structures so that the lowest floor of construction is at or above the BFE (the discussion in this paper focuses on riverine examples, but there are similar standards for coastal areas). The placement of fill in the floodplain displaces salmonid habitat, and the associated development results in the placement of additional fill to support infrastructure and in increased pollution, stormwater runoff, vegetation removal, and other adverse effects..”

10/21/2008 Letter to Mount Vernon Mayor Bud Norris, re: National Marine Fisheries Service (NMFS) Biological Opinion (BiOp) of National Flood Insurance Program (NFIP)

We all have a legal responsibility to ensure our actions do not cause a take (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct) to threatened or endangered species. Under Section 9 of the ESA, actions or decisions enacted by you and your officials are subject to this prohibition regardless of federal involvement. Additionally, any person can be subject to criminal or civil penalties for causing a take. NMFS considers the issuance of floodplain development permits without addressing the impacts on listed species or their critical habitat as a take under the Endangered Species Act.

1/22/2009 Safeguarding Coasts and Floodplains for Fish, Wildlife and People

National Wildlife Federation (NWF) explains why they sued to reform FEMA in an era of climate change.  NWF states their prime motivation as the existence of a  “NFIP subsidy fueling harmful development of coastal and floodplain habitats”.

1/22/2009 NMFS BiOp on FEMA’s National Flood Insurance Program (NFIP)

The National Marine Fisheries Service claims among the effects of the NFIP are that it “Allows fill and levees (no insurance) and development”. The presentation also states what in their opinion FEMA must do going forward in its administration of the NFIP.

1/22/2009 ESA and the National Flood Insurance Program

“FEMA recognizes and acknowledges the importance of preserving critical salmon habitat and believes that the NFIP’s core mission of reducing flood risks to life and property are not mutually exclusive.”

9/15/2009 ESA and the National Flood Insurance Program: Implementing a salmon friendly program 28 slide presentation explaining the path forward as, “FEMA recognizes the need to protect threatened and endangered salmon species while continuing the successful implementation of the NFIP in the Pacific Northwest.”
9/15/2009 FEMA Region X: A New Vision for the Future NOW A FEMA Region X presentation to the 2009 Northwest Regional Floodplain Management Association (NORFMA).  Includes this statement, “FEMA feels that land use and flood control practices that protect salmon and their critical habitat also means implementing good floodplain management that will ultimately reduce damages to flood.”
1/2010 Model Ordnance: Floodplain Management and the Endangered Species Act Current recommendation from FEMA Region X on a draft model ordinance for all local jurisdictions to implement. 

Letter to FEMA Region X on behalf of the Washington REALTORS®, several local associations of the Washington REALTORS, the Master Builders Association of King and Snohomish Counties, several local building associations, and several private property owners with property in King, Snohomish and Skagit Counties re: FEMA's Model Ordinance for Biological Opinion issued by the National Marine Fisheries Service

“As a foundational comment, FEMA's Model Ordinance suffers the same fatal flaw as the BiOp itself: it is bipolar. On the one hand, the BiOp repeatedly acknowledges that the majority of the 100 year floodplain and floodplain habitat in the Puget Sound region has been modified, channelized or otherwise developed and, therefore, provides no habitat functions or benefits for endangered species. BiOp at 146. At the same time, the BiOp asserts that virtually every inch of the 100 year floodplain in the Puget Sound region should be protected from development to achieve the BiOp' s goal of ensuring that development in the floodplain "will not result in adverse habitat effects." BiOp at 156.”

See also: Endangered Species Act – Section 7 Consultation Final Biological Opinion
6/23/2011 Skagit County Planning & Development Services Cover Memorandum, Re: Skagit County’s draft proposal to address federally protected endangered species (Chinook salmon and Orca whales) in “special flood hazard areas” “In 2008, a lawsuit was filed against the Federal Emergency Management Agency (FEMA) and its regulatory effort, or lack thereof, in protecting endangered species. Prior to the lawsuit, FEMA, who administers the federal government’s flood insurance rate program, had been mostly concerned with protecting homes and business, and minimizing the flood risks to communities. Today, FEMA must now also protect salmon and whales.”

Part 1: Biological Opinion Proposed Skagit County Code Table of Code Amendments

List of changes noting what section of code will be changed, the effect of the Skagit County Code changed and what part of the BiOp Checklist is cited.

Part 2: Skagit County Code Chapter 14.34: Flood Damage Prevention with post-BiOp Changes

Document notes changes to the code such as saying the purpose of the Flood Damage Prevention code is, “To retain the natural channel, shoreline, and floodplain creation processes and other natural floodplain functions that protect, create, and maintain habitat for threatened and endangered species” & To prevent or minimize loss of hydraulic, geomorphic, and ecological functions of floodplains 24 and stream channels.  Furthermore the code reforms require, “Any loss of floodplain storage shall be avoided, rectified or compensated 18 for within the SFHA”, recreational vehicles be able to leave the floodway with haste if necessary, and a new code section for “Habitat Protection Standards.”

Part 3: BiOp Imposed Changes in Chapter 14.24: Critical Areas

...If the proposal is within the special 12 flood hazard area (SFHA), the applicant must demonstrate that the proposal is not likely to 13 adversely affect species protected under the Endangered Species Act, or their habitat.

Part 4: Biological Opinion Compliance Checklist: Skagit County Proposed Draft Submittal

Review of changes versus Endangered Species Act/ESA, Model Ordinance Section & Community Regulations.

Part 5: Draft Elements of Administrative Official Interpretation 1 (AOI)

The AOI would be utilized to guide qualified professionals in the preparation of fish and wildlife site assessments, inform the public and assist reviewers under the authority of the County’s Critical Areas Ordinance (CAO). The AOI would rely upon existing language contained in the CAO, and its proposed non-substantive amendments which provide cross reference to the Flood Damage Prevention Ordinance. All code provisions cited in this document are included for review under Attachment A. The AOI would be developed in order to ensure that Skagit County complies with the intent of Reasonable and Prudent Alternative Element 3 - Floodplain Management Criteria. The criteria are contained in the National Marine Fisheries Service Biological Opinion (BiOp) dated September 22, 2008. The Riparian Buffer Zone (RBZ) dimensions can be found in Appendix 4 of the BiOp and the May 14, 2009 errata letter. Appendix 4 and the errata letter are included for review as Attachment B.

Part 6: Attachment A: Biological Opinion Draft Elements of the Administrative Official 3 Interpretation: Existing Code Provisions

Legal code for compliance w/ the FEMA NFIP BiOp.

Part 7: Attachment B: Biological Opinion Minimum Criteria for Compliance

It is the purpose of the following criteria to maintain streams and floodplains in their natural state to the maximum extent possible so they support healthy biological ecosystems, by: 1) assuring that flood loss reduction measures under the NFIP protect natural floodplain functions and riparian habitat, and the natural processes that create and maintain fish habitat, and 2) preventing or minimizing loss of hydraulic, geomorphic, and ecological functions of freshwater and estuarine floodplains and stream channels.