ESA and the National Flood Insurance Program

Implementing a salmon friendly program.


NFIP ESA History

Background
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2003 -NWF Sued FEMA for failure to comply with ESA

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2004 –Court Ruled that FEMA must consult with NMFS

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2006 -FEMA provided a Biological Evaluation that stated NFIP may affect but not adversely

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September 2008 -NMFS issued Biological Opinion with Jeopardy/ Adverse Modification 


NMFS offered one Reasonable and Prudent Alternative


NMFS Biological Opinion

Reasonable and Prudent Alternative
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A Reasonable and Prudent Alternative is an action(s) that a federal agency can take to avoid the likelihood of jeopardy. It must identify alternative actions that:



1) Can be implemented in a manner consistent with the intended purpose of the NFIP, 
2) Can be implemented consistent within the scope of the Federal agency's legal authority and jurisdiction, 
3) Are economically and technologically feasible.

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Reasonable and Prudent Alternative

Summary of Elements
1.
Notify Puget Sound communities of determination

2.
Change mapping procedures to reduce impacts

3.
Require communities to consider impacts on fish habitat when issuing floodplain development permits

4.
Changes to CRS program

5.
Addressing levee vegetation maintenance effects

6.
Mitigation to adversely affected habitat

7.
Report to NMFS on progress towards meeting requirements





FPM Performance Criteria: Element 3


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44 CFR 60.3 (a) (2)  A community shall: .
Assure all necessarypermits have been received from State and Federal agencies from which approval is required by Fed/State law.

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Requires a showing of compliance, particularly with CWA 404 permits, but includes ESA Section 10 permits.








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FPM Performance Criteria: Element 3


FPM Performance Criteria: Element 3
Permit by Permit Showing of Compliance (project by project approach)

Checklist (community by community approach)

Model Ordinance  
(programmatic approach)










1

2

3

Three Doors Approach


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Model Ordinance  (programmatic approach).
Combines Floodplain requirements (Structural based) with Habitat requirements (species based)

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Written ESA inclusive, not salmon specific

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More than minimally necessary  (avoid adverse effect vs. eliminate Jeopardy/Adverse Mod.)

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Not required, but highly encouraged







FPM Performance Criteria: Element 3

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Community Checklist (Semi -programmatic).
Utilizes existing local/state regulations adopted at the local level thus providing flexibility

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Meets the minimum requirements of the Biological Opinion (may be salmon centric)

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Not required, but highly encouraged







FPM Performance Criteria: Element 3



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Permit by Permit demonstration of compliance (individual approach).
Requires demonstration of compliance on project level basis

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Utilize Sections: .
Section 7 consultation (fed nexus)

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Section 10 Permit (HCP)

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Section 4d approval (NMFS only)




.
Required, but not recommended








FPM Performance Criteria: Element 3


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Regardless of approach, all projects will require some level of assessment: .
Biological Assessment/ Biological Evaluation

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Habitat Conservation Plan






or
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Habitat Assessment Report





FPM Performance Criteria: Element 3

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Regional Guidance

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Regional Guidance for Floodplain Habitat Assessment and Mitigation.
5-step habitat assessment process

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4-step mitigation guidance





Must evaluate for:
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direct impacts

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indirect impacts 

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cumulative impacts





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Challenges

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There are a number of challenges that exist to implementing the Bi-Op.
Fish Vs. Flood

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Limitations to what NFIP can do (no land use authority)

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FEMA must be successful through the actions of others






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Partnerships

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FEMA continues to pursue opportunities to partner with other federal agencies, state agencies, local governments and other stakeholders to protect species and critical habitat



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Conclusions

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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



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