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Fema-Administration-Of-National-Flood complaint in 2003, the plaintiffs filed suit against FEMA and the Service pursuant to the Act and the Administrative Procedure Act (APA) (79 Stat. 404; 5 U.S.C. 500 et seq.). The plaintiffs won a Summary Judgment on all three counts of their complaint. On March 29, 2005, the United States District Court, Southern District of Florida (Court) issued an Order ruling the Service and FEMA violated the Act and the APA. Specifically, the Court found: (1) the Service and FEMA violated the Act’s section 7(a)(2) and APA’s prohibition against actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law by failing to protect against jeopardy; (2) the Service and FEMA failed to ensure against adverse modification of critical habitat for the endangered silver rice rat; and (3) FEMA failed to develop and implement a conservation program for listed species under section 7(a)(1) of the Act. On September 9, 2005, the Court granted the plaintiffs’ motion for an injunction against FEMA issuing flood insurance on any new residential or commercial developments in suitable habitats of federally listed species in the Keys. The injunction applied to properties on a list of potential suitable habitat submitted to the Court by the Service. Plaintiffs have stipulated to the removal of some properties on the suitable habitat list based on Plaintiffs’ determination that the properties were not located in suitable habitat, thereby enabling some owners to obtain flood insurance. The Court also ordered the Service to submit a new BO by August 9, 2006. The Service issued a new BO on August 8, 2006. On April 1, 2008, FEMA and the Service filed an appeal with the United States Court of Appeals for the Eleventh Circuit arguing that section 7(a)(2) of the Act did not apply to FEMA’s provision of flood insurance and that FEMA had fully complied with the Court’s March 29, 2005, ruling. On April 1, 2009, the United States Court of Appeals for the Eleventh Circuit affirmed the judgment of the District Court. On February 26, 2009, the Court ordered the Service to submit a new BO by March 31, 2010. On March 28, 2010, the Court granted a 30 day extension of this deadline. In compliance with the Court’s order, this document transmits the Service’s BO on FEMA’s implementation of the NFIP in the Keys and its effects on 18 federally threatened or endangered species. This revised BO also addresses the Court’s March 2005, criticism of the 2003 RPA. The Court criticized the 2003 RPA for (1) relying on voluntary measures and (2) not protecting against habitat loss and fragmentation or otherwise accounting for the cumulative effects of the permitted projects. In this BO, we more clearly describe the steps that will be taken if the RPA is not followed, which includes new mechanisms for enforcement by FEMA, consistent with its regulations. Second, the revised RPA will result in a review process that will allow the Service to consider the cumulative impacts of a series of permit proposals at clear points in time, rather than on a piecemeal basis. This revised BO also provides a complete review of the baseline conditions of having the 2003 RPA in effect and includes new habitat maps reflecting the best available scientific information. The new maps were developed in cooperation with Monroe County and include Plaintiffs’ comments on habitat mapping parameters. The listed species in the Keys include: American crocodile (Crocodylus acutus), threatened, designated critical habitat; Eastern indigo snake (Drymarchon corais couperi), threatened; Garber’s spurge (Chamaesyce garberi), threatened; Key deer (Odocoileus virginianus clavium), endangered; Key Largo cotton mouse (Peromyscus gossypinus allapaticola), endangered; Key Largo woodrat (Neotoma floridana smalli), endangered; Key tree-cactus (Pilosocereus robinii), endangered; Lower Keys marsh rabbit (Sylvilagus palustris hefneri), endangered; Piping plover (Charadrius melodus), threatened, designated critical habitat; Roseate tern (Sterna dougallii), threatened; Schaus swallowtail butterfly (Papilio aristodemus ponceanus), endangered; Silver rice rat (Oryzomys argentatus), endangered, designated critical habitat; Stock Island tree snail (Orthalicus reses reses), threatened; Green sea turtle (Chelonia mydas), endangered, designated critical habitat; Hawksbill sea turtle (Eretmochelys imbricata), endangered, designated critical habitat; Kemp’s ridley sea turtle (Lepidochelys kempii), endangered; Leatherback sea turtle (Dermochelys coriacea), endangered, designated critical habitat; Loggerhead sea turtle (Caretta caretta), threatened. Of the above, only the American crocodile, silver rice rat, and piping plover have designated critical habitat in the Keys. Critical habitats for the green sea turtle, hawksbill sea turtle, and leatherback sea turtle is not present in the Florida Keys and will not be affected by this action. In some cases, the action will not affect listed species because their habitat occurs on protected lands or lands where development will not likely occur. For example, roseate tern nesting habitat is protected on public lands, and also can be found on spoil islands, or existing rooftops of commercial or public buildings. Nesting sea turtles generally are not directly affected by development. The greatest threats to sea turtles on land are disturbance of females attempting to nest, destruction of nesting areas, nest disturbance, and predation of eggs or young as they return to the water. Monroe County and the municipalities within the county have regulations in place that impose required setbacks (usually 100 feet) from sea turtle nesting habitat. McNeese (2006) suggests that disturbances such as lighting, pets, noise or blocking of nesting areas could adversely affect sea turtles. Local governments have established ordinances to impose lighting restrictions to avoid and minimize the potential for disorientation of nesting sea turtles and their hatchlings. Moreover, the U.S. Army Corps of Engineers (Corps), in consultation with the Service, must issue permits for proposed projects in waters of the United States that may directly develop or block turtle nesting areas. The Corps works with the Service to avoid and minimize these types of impacts. 3 Piping plovers are not common in the Keys, primarily because there are so few sandy beaches. As mentioned previously, setback requirements (usually 100 feet) regulated by Monroe County and municipalities protect beaches and the Service consults with the Corps on development actions affecting them. Virtually all (99.95 percent) of the piping plover critical wintering habitat (also sandy beaches) in Monroe County is protected. Land acquisition efforts by many agencies have continued to provide protection for crocodile habitat in South Florida. Forty-four public properties, owned and managed by Federal, State, or county governments, as well as two privately owned properties managed at least partially or wholly for conservation purposes, contain potential crocodile habitat within the coastal mangrove communities in South Florida. About 95 percent of nesting habitat for crocodiles in Florida is under public ownership (Mazzotti, personal communication, 2001). Information gained from the site visits for permits and other activities since the issuance of the April 18, 2003, BO amendment indicates that the American crocodile occurs primarily on sites under public ownership and managed for conservation, such as the Service’s Crocodile Lake National Wildlife Refuge (NWR). Because these habitats are not subject to residential or commercial development, the NFIP does not have any impacts in these areas. Moreover, the Corps, in consultation with the Service, must issue permits for proposed projects that might directly affect potential crocodile habitat. A similar situation exists for designated crocodile critical habitat. About 3.6 percent of crocodile critical habitat is within the Florida Keys. Of this, about 1.6 percent is on North Key Largo where the large majority is protected. About 2 percent is in South Key Largo down to Long Key. The Corps, in consultation with the Service, issues permits for proposed projects that may directly affect crocodile critical habitat. Information gained from site visits for permits and other activities since the issuance of the June 16, 1997, BO indicates that Garber’s spurge occurs primarily on sites managed for conservation under public ownership, such as the Service’s National Key Deer Refuge (NKDR). Florida Natural Areas Inventory (FNAI) (2008) indicates 27 of 31 extant occurrences are on managed areas. The plant also occurs on road right-of-ways, which are not subject to residential or commercial development. As referenced above, during the implementation of the technical assistance review outlined in the 1997 and 2003 Reasonable and Prudent Alternative (RPA) for this Federal action, over 6,500 development projects were reviewed in Monroe County. During this effort, it became evident that the NFIP action would have an insignificant impact on several federally listed species including the roseate tern, loggerhead sea turtle, green sea turtle, leatherback sea turtle, hawksbill sea turtle, Kemp’s ridley sea turtle, piping plover, American crocodile, and Garber’s spurge in Monroe County. In view of this, and for the aforementioned reasons, the Service, on behalf of FEMA, has determined these species are not likely to be adversely affected by the action. In addition, critical habitats for the piping plover
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