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FWS/R4/ES August 8, 2006 Mr. David Paulison, Director Federal

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FWS/R4/ES August 8, 2006 Mr. David Paulison, Director Federal In Reply Refer To: FWS/R4/ES August 8, 2006 Mr. David Paulison, Director Federal Emergency Management Agency 500 C Street, S.W. Washington, D.C. 20472 Dear Mr. Paulison: In 1997, the U.S. Fish and Wildlife Service (Service) completed a biological opinion (BO) under section 7 of the Endangered Species Act of 1973, as amended (Act) (87 Stat. 884; 16 United States Code [U.S.C.] 1531 et seq.) for the Federal Emergency Management Agency (FEMA) on the National Flood Insurance Program’s (NFIP) actions in the Florida Keys (Keys). In addition, the Service amended the BO in 2003. This process was legally challenged in the District Court Southern District of Florida. On March 29, 2005, the Court issued an Order ruling the Service and FEMA violated the Act and the Administrative Procedure Act (APA) (79 Stat. 404; 5 U.S.C. 500 et seq.). Specifically, the Court found: (1) the Service and FEMA violated Act 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 also granted the plaintiff’s motion for an injunction against FEMA issuing flood insurance on any new residential or commercial developments in suitable habitats of federally listed species in Monroe County, Florida. The Court ordered the Service to submit a new BO within nine months from the September 9, 2005, date. In addition, the Court granted a two-month extension requiring the BO to be submitted by August 9, 2006. In compliance with the Court’s order, this document transmits the Service’s BO on FEMA implementation of the NFIP in Monroe County, Florida and its effects on eighteen federally listed threatened or endangered species. FEMA and the Service have appealed portions of the March 29, 2005, and September 9, 2005, rulings, and the appeal is still pending. The threatened and endangered species in the Florida Keys include: American crocodile (Crocodylus acutus), Garber’s spurge (Chamaesyce garberi), Key deer (Odocoileus virginianus clavium), Key Largo cotton mouse (Peromyscus gossypinus allapaticola), Key Largo woodrat (Neotoma floridana smalli), Key tree-cactus (Pilosocereus robinii), Lower Keys marsh rabbit (Sylvilagus palustris hefneri), Schaus swallowtail butterfly (Papilio aristodemus ponceanus), silver rice rat (Oryzomys argentatus), Stock Island tree snail (Orthalicus reses reses), eastern indigo snake (Drymarchon corais couperi), bald eagle (Haliaeetus leucocephalus), loggerhead sea turtle (Caretta caretta), green sea turtle (Chelonia mydas), leatherback sea turtle (Dermochelys coriacea), hawksbill sea turtle (Eretmochelys imbricata), Kemp’s ridley sea turtle (Lepidochelys kempii) and piping plover (Charadrius melodus). In addition, critical habitat of the American crocodile, silver rice rat, and piping plover has been designated in the Florida Keys. No other federally listed species referenced above have critical habitat designations; therefore, no other critical habitats will be affected. This BO is based on information in the June 16, 1997 BO and April 18, 2003 amendment. It also incorporates documentation provided by FEMA, the State of Florida Department of Community Affairs (DCA), Monroe County, and the cities of Islamorada, Marathon, Layton, Key Colony Beach, and Key West. The BO includes information compiled through telephone conversations, field investigations, and other sources of information. A complete administrative record of this consultation is on file at our South Florida Field Office. Consultation History On August 25, 1994, the United States District Court for the Southern District of Florida filed a memorandum opinion and final declaratory judgment for Florida Key Deer v. Stickney (Case No. 90-10037-CIV-MOORE). The Court directed the Federal Emergency Management Agency (FEMA) to consult with the Service to determine whether implementation of the NFIP in Monroe County, Florida was likely to jeopardize the continued existence of the endangered Florida Key deer. On July 25 and 26, 1995, the Service and FEMA met to discuss the NFIP, its administration, its implementation, and the section 7 consultation on the program. During this meeting, the two agencies outlined their roles and responsibilities and duties during the consultation. During this meeting, the Service outlined the section 7 process as it would apply to the FEMA consultation. In particular, the Service recommended including all threatened and endangered species in the 2 consultation, rather than just the Key deer, to avoid having to re-initiate consultation on the other threatened and endangered species later. On September 7, 1995, the Service sent a letter to FEMA, which summarized the July 1995 meeting and identified the species that the NFIP “may affect.” This letter initiated formal consultation on the NFIP. In the letter, the Service asked FEMA for an extension of the regulatory consultation period due to the complexity of the consultation. The Service also asked FEMA for additional information that would help with the consultation. On October 5, 1995, the Service spoke with several FEMA representatives to discuss the status of the consultation. The FEMA representatives confirmed that they still needed to provide the information the Service requested in its September 7, 1995, letter. They explained that the delay in delivering the information was caused by the large number of severe weather emergencies along the Gulf Coast States during the fall of 1995. On January 25, 1996, FEMA sent a letter to the Service explaining the delay in responding to the Service’s September 7, 1995, letter. In their letter, FEMA wrote that they understood the consultation to be “the admission of communities into the NFIP as well as the suspension and readmission of such communities, under 44 CFR part 59.” FEMA agreed to extend the 135-day consultation period due to the importance of the consultation and agreed to help the Service gather and evaluate information during the consultation. From April 29 through May 1, 1996, the Service held a meeting to discuss the recovery needs of the threatened and endangered species of the Florida Keys. The meeting was attended by experts on the various threatened and endangered species in the Florida Keys and the managers of public and private lands important to those species. The Service used to this meeting to gather the best scientific and commercial information available on the biology and status of the threatened and endangered species of the Keys, opportunities to recover them, and best management practices to promote their recovery. The meeting’s attendees also discussed how FEMA actions would affect listed species. On May 8, 1996, the Service met with representatives from FEMA and the National Wildlife Federation (NWF) to discuss the status of the section 7 consultation on the NFIP. The Service explained that the scope of the consultation included 10 of the 17 threatened and endangered species in the Florida Keys, rather than only the Key deer. The Service also presented a schedule for completing the draft BO and agreed to provide a draft document to both FEMA and NWF by July 15, 1996. The Service agreed to meet in Washington D.C. on September 10, 1996, to review the conclusions in the BO and to develop any reasonable and prudent alternatives, incidental take statements, and conservation recommendations that might be appropriate. On July 10, 1996, the Service requested from FEMA and NWF a time extension to provide a draft BO. A new date of July 22, 1996 was agreed upon. On July 22, 1996, the Service provided copies of the draft BO to FEMA and NWF. 3 On August 23, 1996, the Service received written comments from FEMA on the draft BO. The most significant concern that FEMA identified was that the draft Opinion did not accurately describe FEMA’s administration of the NFIP in Monroe County, Florida. Furthermore, FEMA believed this inaccuracy resulted in overstating their role in the decline of listed species in Monroe County. On September 10 and 11, 1996, the Service met with representatives of FEMA and the Department of Justice (DOJ) to review FEMA’s comments on the draft BO and begin discussions on appropriate Reasonable and Prudent Alternatives (RPA). The Service agreed to incorporate the changes recommended by FEMA in their comment letter. FEMA agreed to provide the Service with a description of their administration of the NFIP in Monroe County, for incorporation into the revised draft BO. On September 12, 1996, the Service met with representatives of FEMA, NWF, Department of the Interior (DOI) and DOJ to discuss the status of the section 7 consultation and receive input from the NWF about RPAs. On October 3, 1996, the Service, FEMA, NWF, DOJ and DOI held a conference call to discuss the status of the section 7 consultation. On June 16, 1997, the Service issued the BO on FEMA’s administration of the NFIP in Monroe County, Florida. The Service concluded that the continued administration of the NFIP was likely to jeopardize the continued existence of the Garber’s spurge, Key deer, Key Largo cotton mouse, Key Largo woodrat, Key tree-cactus, Lower Keys marsh rabbit, Schaus swallowtail butterfly, rice rat, and Stock Island tree snail; and was not likely to jeopardize the eastern indigo snake. The Service also concluded that critical habitat for the rice rat was likely to be destroyed or adversely modified. In June and July 1998, the Service met with representatives of Monroe County in Marathon to discuss implementing the RPA. FEMA agreed to hire consultants to reconcile the county's parcel mapping process with the listed species maps produced by the Service.
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