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Item B County of Monroe Growth .Management Division 2798 Overseas Highway Suite 410 Marathon, Florida 33050 Voice: 305.289, 2500 FAX: 305.289.2536 Board of County Commissioners Mayor Dixie Spehar, District 1 Mayor Pro Tem Charles "Sonny" McCoy, District 3 George Neugent, District 2 David Rice, District 4 Murray E. Nelson, District 5 MEMORANDUM TO: Board of County Commissioners FROM: Timothy J, McGarry, A1CPtn1 Director of Growth Managetf1ehY November 10, 2005 DATE: SUBJECT: Workshop for Review of Proposed Boundary Delineation Criteria and Special Protection Area Maps Overview On Tuesday, 2:30 p,m" Novt.wber 15, 2005, in Key Largo, the Board of County Commissioners will hold a special workshop meeting with Growth Management staff to review and discuss proposed boundary delineation criteria and Special Protection Area maps. The Board will not be taking any formal action on the proposed criteria and maps, but will have the opportunity to obtain input. from the stafr on the preparation of these materials and to provide guidance to the staff on preparation of the final draft criteria on delineation of the SPA boundaries and the final draft maps of the Special Protection Area. The final draft Special Protection Area maps and overlay ordinance will need to be considered at least at one public hearing before adoption, Unfortunately, Secretary Cohen will not be able to attend the meeting, but he has asked that the County go forward with the meeting. I have requested that if at all possible Jim Quinn or Rebecca Jetton be present at the meeting. If unable to attend, they indicated that they would be available by telephone, Special Protection Areas Consistent with the "Action Plan" approved by the Board of County Commissioners to memorialize the understanding reached with DCA Secretary Cohen concerning improving habitat protection, the Board of County Commissioners adopted ordinances on September 22, 2005, amending the Comprehensive Plan to implement the Goal I05/Tier System including the provisions for establishment of Special Protection Areas within Tier III designated areas. Page lof4 ~ '\\ ':> \ 0 " ~. The Special Protection Areas arc intended to delineate those parcels or lots located partially or wholly within a tropical hardwood hammock or pinel and (referred hereafter as "upland native habitat") patch of one or more acres in size. The agreement with DCA Secretary Cohen specifies that roads, other than U ,S. Highway I, will not constitute a break in contiguity of these upland native habitat areas. Lots or parcels will receive a ROGO allocation scoring of +20 points, rather than +30 points, if any portion of a upland native habitat patch is cleared within a patch of one acre or greater in area within a designated Special Protection Area, Even if a lot or parcel is located within a Special Protection Area, if no portion of the upland native habitat is cleared, the application will receive + 30 points under ROGO, Process for Delineation of Special Protection Areas The process for delineation of the Special Protection Areas (SPA) by the staff was as follows: 1. A series of working survey maps with grids were generated from the County's Geographical Information System that overlaid parcel, 2004 aerial photographs and environmental (ADlD maps) data layers. 2. A team of two biologists went into the field and did a lot by lot survey of unincorporated Monroe County within proposed Tier 1lI areas, conducting on site inspections as appropriate, to update the existing habitat data by identifying newly cleared and developed properties; extent of hammock and other native upland habitat; upland habitat with 40 percent or more of invasive species; and wetlands. In some cases specific GPS input data were taken to define the extent of the upland habitat, where deemed appropriate by survey team, 3, The survey maps with the biologists' field notes and GPS information was inputted into the County's GIS and the existing data layers edited by GIS stafI. 4, Any vacant lots or parcels receiving a ROGO allocation or with an issued building permit as of September 28, 2005, were identified and added as a data layer for the final maps. 5. The staff prepared a specific set of criteria to be followed in the delineation of the specific boundaries, including more specific criteria regarding "connectivity" of hammock that incorporated the need identified by both Secretary Cohen and Board of County Commissioners for flexible and rational delineation of the SPA boundaries that makes sense from both scientific and practical standpoints (see Attachment). 6, The stafl" completed an initial identification of potential SPAs in the Lower Keys, sharing the draft delineation criteria and SPA maps with DCA staff, who were in Page 2 of 4 general accord with the staff's work, Several minor revisions were made to the draft delineation criteria based on this identification process and discussions with DCA stan: 7. The statf completed an initial identification of potential SPAs in the Upper Keys based on the revised criteria and procedures tollowed in the Lower Keys, 8, The SPA maps for both the Lower and Upper Keys were finalized after the team of biologists completed follow-up fields surveys where needed, [A series of maps depicting the proposed Special Protection Areas are enclosed with this report. These maps were sent to DCA.] Guidance from the Board The statf will brief the Board on the criteria and the proposed Special Protection Area Maps. Although the Board is not being asked to take any tormal action on either the criteria or maps at this time, the staff is seeking input from the Board on any changes needed to be made or issues to be further investigated prior to the preparation of the final criteria and maps. The stan' will prepare the final draft criteria tor delineation of the boundaries of the SPAs and the tinal draft SPA maps based on guidance provided by the Board. The criteria and maps will be incorporated into appropriate ordinance form, which will also require a revision to the draft Tier Map to include SPAs. The draft ordinance and revised Tier Map will still need to go through a public hearing and adoption process along with the other proposed ordinances to implement the recently adopted Comprehensive Plan amendments enacted for the Goal l05/Tier System. Attachment - Proposed Criteria tor Delineation of Special Protection Area Boundaries Enclosure - Proposed Special Protection Area Maps Page 3 of4 A TT ACHMENT PROPOSED CRITERIA FOR DELINEATION OF SPECIAL PROTECTION AREA BOUNDARIES 1. The following conditions shall constitute a break in the hammock for purposes of calculating the one-acre minimum size for hammocks in the designation of SPA boundaries: a. U.S. Highway 1; b. Property lines of developed lots or vacant lots with a ROGO allocation award or an issued building permit, as of Septt.."ll1ber 28, 2005, located within a Land Use District that allows only one dwelling unit per lot; c, Roads other than U.S. Highway 1, wht..'fe the hammock on both sides of the intervening road results in 50 feet or less of mutually adjacent hammock frontage if the roadway were not present and the two separated hammock patches could be directly joined together at an angle perpendicular to the intervening roadway; d. Canals and open water; and e. Hammocks with invasive coverage of 40 percent or greater. 2, A lot or combination of lots totaling 10,000 square feet or less in area across an intervening road and surrounded on at least three sides by a developed lot shall not be considered part of a one-acre hammock. 3. The following conditions shall not constitute a break in hammock for purposes of calculating the one-acre minimum for hammocks in the designation of SP A boundaries: a. Property lines of developed parcels of 10,000 square feet or more in size located within a Land Use District that allows more than one dwelling unit or non- residential development. b. Roads other than U.S. Highway 1, where the hammock on both sides of the intervening road results in 51 feet or more of mutually adjacent hammock frontage, if the roadway were not present and the two separated hammock patches could be directly joined together at an angle perpendicular to the intervening roadway. 4. Special Protection Area boundaries shall follow property lines wherever possible, except where a parcel line or a distinct geographical feature, such as a canal or roadway, may be more appropriate. Page 4 of 4 SPECIAL WORKSHOP OVERVIEW ON-8ITE VERIFICATION (II/SID )" 1 PROPOSED CRITERIA FOR BOUNDARY DELINEATION PROPOSED CRITERIA FOR BOUNDARY DELINEATION 2 PROPOSED CRITERIA FOR BOUNDARY DELINEATION PROPOSED CRITERIA FOR BOUNDARY DELINEATION 3 I ~ . II ~ C1l -I -I en ~ ~. ~' - 5' :J I pl.: L.l ~ ~~ "8 ~~ ~ ii! 0. 0. 'lil (J) ~ :J> Ci) ell S:Q)cn ~m~ <c: !." c- Q)Q) ...:s c)' a. :s ..z ~~ ~O 8t!l . en c CCI DJ :I. o DJ - S 013 ~ ~ G) (""J mo o a~ c:: 0 z w ..., '" I .... c . II ~ CD en <i5' ::::l !!l. o. :J =1 =1 ~ ~ c.> ..., -< . I 8'::0 '00 CilG'l ",0 CDN ::l.o o c.> ~ ~~ "C ::i"W' o ~::::J '" <il Q. CD '" Q. 'li! UJ ~ (i) .. is: ...... I )> ... C1>cn S>>~ m)> <c: !!.-a e- s>>S>> ...:::1 c5" Co :::I en c a::a I>> ::L o a ~ '< ." I .... ;:; . II ~ CD -I -I CJl ~. ~. <go u.l !!l- 0. :J ?~ ~o ~z n= ~o 21:!:1 ;r'l ~o ~c:: ~Z ~"'l ~o< . I 6'::0 -00 ~Gl mo CDr-.> ;a. 0 o u.l ~ i~ "'C ::J-m o ~ ~ '" OJ c. CD II> C. 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'8 en ~ ~ r- llJ ca o ~C"l ,0 ;~ rZ ~..., ;0< County's Suggested Edits to Plaintiffs' Proposal Reconstruction, redevelopment, renovation, replacement or expansion of a structure that existed on the site prior to September 9, 2005 shall not be considered "new development," PROVIDED (1) it is the same use or a less intensive use; (e.g., single family home for single family home, duplex for duplex, multifamily for multifamily with the same number of units, commercial for commercial, duplex to sinale familv home. or similar net reduction in the number of dwellina or commercial units etc.), (2) includes no more than double the footprint or square footage of the original structure, or 1500 square feet, whichever is larger; and (3) does not entail clearing or using any areas on the site outside of areas which were cleared, paved, or within the footprint of the pre- existing structure on September 9,2005. Nothing in this definition shall be construed to allow destruction of any native vegetation that existed on September 9, 2005, or the use of any area that had native vegetation on September 9,2005. A mobile home replaced with a modular home or a home built bv traditional methods in areas where mobile homes are not allowed shall be considered the "same use" for purposes of this order. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 90.) 0037-CN -MOORE FLORIDA KEY DEER, et al., vs. ORDER f.1!..w c.v,czj\_ D.C: .- j ~OV"i.1 Plaintiffs, MICHAEL D. BROWN, et aJ., .. ." '" . ~:,.. " .1; h. .v~~-:' ';; . 5,... tJr' F'1A. _ !~.,<>., J Defendants. / THIS CAUSE came before the Court upon Monroe County's Emergency Motion for Expedited Consideration of Motion to Intervene and Motion to Extend Time for Piling Notice of Appeal (filed November 4, 2005) and Monroe County's Supplement to its Emergency Motion for Expedited Consideration of Motion to Intervene and Motion to Extend Time for Filing Notice of Appeal (filed November 4, 2005). UPON CONSIDERATION, of the Motion and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that Monroe County's Emergency Motion for Expedited Consideration of Motion to Intervene and Motion to Extend Time for Filing Notice of Appeal (filed November 4,2005) is GRANTED IN PART. If this Court grants Monroe County's Motion to Intervene for Purposes of Appeal and/or to Participate in Further Proceedings in the District Court and Memorandum of Law in Support (DE #239), pursuant to Fed. R. App. P. 4(a)(5)(A) Monroe County will be permitted to appeal this Court's September 12, 2005 Order (DE #237) on or befure December 14, 2005. It is furthe~ /U /1/ ORDERED AND ADJUDGED that Plaintiffs shall file a response to Monroe County's Motion to Intervene on or before Wednesday, November 9,2005. If Monroe County wishes to reply to Plaintiffs' response, it shall file its reply on or before Monday, November 14,2005. DONE AND ORDERED in Chambers at Miami, Florida, this 7fi. day of November, 2005. UNITED STATES DISTRICT JUDGE K. MICHAEL MOORE copies provided: All counsel of record LA W OFFICES JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & McDuFF, P.A. A PROFESSIONAL ASSOCIATION SCOTT D, ALEXANDER, PA MICHAEL T. BURKE 't JONATHAN F, CLAUSSEN CAROLYN A EGAN ERIN E, GILL JEFFREY L. HOCHMAN, PA E, BRUCE JOHNSON. RICHARD H, McDUFF, PA . ROBERT E, MURDOCH MICHAEL R. PIPER, PA . WILLIAM E, PLATOW JEREMY A SCHINDER DAVID M, SCHWEIGER, PA TAMARA M, SCRUDDERSt CHRISTOPHER L. SMITH CINDY A WILLIAMS 2455 EAST SUNRISE BOULEVARD SUITE 1000 FORT LAUDERDALE, FL 33304 TELEPHONE (954) 463-0100 TELECOPIER (954) 463-2444 . BOARD CERTIFIED OVIL TRIAL LAWYERS t BOARD CERTIFIED APPEllATE LAWYERS RETIRED' RONALD p, ANSELMO BURL F, GEORGE November 9,2005 Robert B. Shillinger, Esquire Assistant County Attorney Office of the County Attorney P.O. Box 1026 Key West, FL 33041-1026 Re: Florida Key Deer, Key Largo's Cotton Mouse, et al vs. Michael D. Brown, as Under Secretary of Emergency Preparedness & Response and Gale Norton, as Secretary ofthe U.S. Dept. Of the Interior Our File No. 25-403 MTB Dear Bob: Enclosed please find a copy of the Court's Order granting in part the County's Motion for expedited consideration and Motion to extend the time for filing notice of appeal in the above-referenced matter. As you can see, the Court has established a briefing schedule for the Motion to Intervene and has indicated that if the County is allowed to intervene, the time period for filing an appeal will be extended to December 14, 2005. I will keep you advised of further developments. MTB/lt v~ery1f~fly,~OUrs,~, ,,/ ,/",A,"' ,,'#, /,/ ',::1 ~ ~- Ftr# Michael T. Burke For the Firm Enclosure RECEIVED NOV 1 0 2005 MONROE COUNTY ATTORNEY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 90-10037 FLORIDA KEY DEER, KEY LARGO's COTTON MOUSE, KEY LARGO WOODRAT, KEY TREE-CACTUS, LOWER KEYS MARSH RABBIT, SCHAUS' SWALLOWTAIL BUTTERFLY, the SILVER RICE RAT, and the STOCK ISLAND TREE SNAIL, NATIONAL WILDLIFE FEDERATION, FLORIDA WILDLIFE FEDERATION, and DEFENDERS OF WILDLIFE, Plaintiffs, v. MICHAEL D. BROWN, in his official capacity as Under Secretary of Emergency Preparedness and Response, Department of Homeland Security, and GALE NORTON, in her official capacity as Secretary of the United States Department of the Interior, Defendants. I MONROE COUNTY'S MOTION TO INTERVENE FOR PURPOSES OF APPEAL AND/OR TO PARTICIPATE IN FURTHER PROCEEDINGS IN THE DISTRICT COURT AND MEMORANDUM OF LAW IN SUPPORT The Board of County Commissioners of Monroe County, Florida (hereinafter referred to as "Monroe County" and/or "County"), by and through its undersigned attorneys, respectfully moves this Honorable Court, pursuant to Fed. R. Civ. P. 24, to intervene on the · side of the Federal Defendants in this action for purposes of appealing and/or participating 1 Case No.: 90-10037-CIV.MOORE Florida Kev Deer v. Brown in an appeal of the District Court's Order of September 9, 2005 ("the Injunction"), and for purposes of participating in further proceedings in this action regarding the Injunction and in support thereof states: 1. On September 9,2005, this Court issued an Order which enjoined the Federal Emergency Management Agency (FEMA) "from issuing flood insurance for new developments in the suitable habitats ofthe Listed species in Monroe County, Florida from the date of this Order until such time as the Court concludes that Defendants have complied with the March 20,2005 Order, the ESA and the APA." ("the Injunction") 2. Monroe County was unaware of the Plaintiffs' request for injunctive relief seeking to halt the issuance of flood insurance by FEMA until after the District Court's Order was issued on September 9,2005. 3. Upon becoming aware of the Injunction, the Board of County Commissioners of Monroe County expeditiously convened a special meeting (held on October 12,2005), in which the Board considered the ramifications of the Injunction on Monroe County and its residents and authorized the filing of the instant Motion, pursuant to which the County seeks leave to intervene in this matter (1) for purposes of participating in any appeal of the Injunction taken by the Federal Defendants in this action, (2) for purposes of appealing the Injunction should the Federal 'Defendants choose not to appeal, and (3) for purposes of participating in further proceedings in the district court with respect to the Injunction. 2 Case No.: 90-10037-CIV-MOORE Florida Key Deer v. Brown 4. The Injunction will have significant detrimental impacts on Monroe County and its residents. Monroe County's economy is dependent on tourism, which depends on the availability of affordable housing to support the workforce necessary to operate the many restaurants, hotels, bars and attractions that sustain the tourism industry in Monroe County. However, as was recently found in Fla. Keys Citizen Coalition. Inc. v. Fla. Admin. Comm., DOAH Case No. 04-2755RP: There is an affordable housing crisis in the Florida Keys. The geography of the Florida Keys hinders the ability of working families in the Florida Keys to find affordable housing. Unlike other expensive areas, such as Boca Raton, working families cannot find affordable housing nearby; the nearest area where housing prices are affordable is the mainland in Dade County. (Id., Final Order, p.68, emphasis added). Due to the affordable housing crisis in Monroe County and its potentially disastrous impacts on the County's economy, the County has gone to great lengths to provide for the construction of affordable housing in the County both by acquiring property for the construction of affordable housing and by encouraging property owners to do 'the same. I Some of the County's efforts to provide for affordable housing (as well as their efforts to protect the environment and protected species) are detailed in the lengthy Final Order issued in Fla. Keys Citizen Coalition. Inc. v. Fla. Admin. Comm., DOAH Case No. 04-2755RP (June 30, 2005), available for review on DOAH's website, wherein the County essentially won the right to permit the construction of a number of affordable housing units. 3 Case No.: 90-10037-CIV.MOORE Florida Kev Deer v. Brown 5. There are approximately 49,000 properties subject to the Injunction in Monroe County. The Injunction has literally halted the construction of affordable housing (as well as other construction) in its tracts on many of these properties. By way of example, Monroe County acquired four (4) properties for the purpose of constructing affordable housing units and was in the process of attempting to acquire two (2) additional properties for the same purpose. The County was about to solicit bids to hire a builder at the time the Injunction issued, but the projects are now in jeopardy, as the properties are among the 49,000 , properties subject to the Injunction for which FEMA flood insurance is unavailable. 6. Courts have articulated the following four-part test for determining whether an application for intervention is proper: 1. The timeliness of the motion; 2. Whether the applicant claims an interest relating to the property or transaction which is the subject of the action; 3. Whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and 4. Whether the applicant's interest is adequately represented by existing parties. See The Fund for Animals. Inc. v. Norton, 322 F.3d 728,731 (D.C. Cir. 2003) (citing Mova 4 Case No.: 90-10037.CIV-MOORE Florida Kev Deer v. Brown Pharrn. Corp. v. Shalala, 140 F. 3d 1060, 1074 (D.C. Cir. 1998); see also Coalition of Arizona/New Mexico Counties v. Dept' ofInterior. 100 F.3d 837,840 (10th Cir. 1996); Utah Assoc. Of Counties v. Clinton, 255 F.3d 1246 (10th Cir. 2001); and Kennard v. State of Utah, No. 2:01CVOOI71B, 2001 U.S. Dist. LEXIS 25785 at * I, (C.D. Utah Mar. 22, 2001). 7. The instant motion is timely filed in that it is being filed expeditiously after Monroe County (which was never served with Plaintiffs' Complaint or with Plaintiffs' Motion for Permanent Injunction) learned that Plaintiffs had requested an injunction and that the Injunction had issued. 8. Monroe County has complied with all established criteria necessary in order to ensure that flood insurance would be available within its boundaries. Therefore, pursuant to Congressional mandate, FEMA "shall" provide flood insurance, and the County is entitled to issuance of same. See 42 U.S.C. g4012 (c). Monroe County also owns property subject to the Injunction. Finally, Monroe County is the governing body elected by the residents of Monroe County, many of whom own property subject to the Injunction and all of whom will suffer from the impacts of the Injunction on affordable housing. For these reasons Monroe County undoubtedly meets the second and third elements ofthe four-part test outlined above. Monroe County has an interest relating to the property or transaction which is the subject of this action, and the disposition of this action will, as a practical matter, impair or impede the County's ability to protect its interest in the subject property. 5 Case No.: 90-10037-CIV-MOORE Florida Kev Deer v. Brown 9 Finally, it is also clear that neither party to the instant action adequately represents Monroe County's interests in this litigation. Plaintiffs, in seeking the Injunction, have taken a position adverse to that of Monroe County. While the Federal Defendants are more aligned with Monroe County's interest, the Federal Defendants are charged with the duty to represent the interests of the Federal Government and all citizens of the United States and not the more narrow and parochial interests of the property owners, Monroe County, and its citizens. See The Fund for Animals. Inc., 322 F.3d at 737. In fact, the Federal - . Defendants have expressly represented in their filings with the District Court that they are not in a position to fully articulate the interests of others such as Monroe County and its reidents. (Federal Defendants' Memorandum in Opposition to Plaintiffs' Motion for Permanent Injunction and Other Relief, p.19) 10. For these reasons, Monroe County respectfully requests leave to intervene in this action for the purpose of participating in any appeal filed by the Federal Defendants in this action and/or for the purpose of taking an appeal from the Injunction in the event that the Federal Defendants choose not to appeal from the Injunction. 11. Additionally, Monroe County requests leave to intervene with respect to any further proceedings in the District Court concerning the Injunction. 'In particular, Monroe County anticipates the need to seek clarification and/or modification o'fthe Injunction. While FEMA has yet to make a formal decision on how to apply the Injunction, the scope of the 6 Case No.: 90-10037-CIV-MOORE Florida Key Deer v. Brown injunction is unclear. For instance, what constitutes "start of construction'" and "new construction" is unclear, and Monroe County wishes to be heard in any further proceedings which seek to clarify and/or modify the Injunction. 12. Pursuant to Southern District of Florida Local Rule 7.1(A)(3), counsel for Monroe County conferred with counsel for Plaintiffs, John Kostyack, Esq, who indicated that Plaintiffs oppose Monroe County's Motion. Counsel for Monroe County also conferred with counsel for the Federal Defendants, Mark A. Brown, Esq., who has indicated that the Federal Defendants take no position with regard to Monroe County's Motion at this time. WHEREFORE, based on the foregoing, MONROE COUNTY respectfully requests that it be permitted to intervene as a Defendant in the above-styled matter for purposes of participating in any appeal from the Injunction filed by the Federal Defendants, for the purpose of filing an appeal from the Injunction if FEMA chooses not to appeal, and for purposes of any further proceedings in the District Court related to the Injunction. MEMORANDUM OF LAW I. Monroe County Qualifies to Intervene as Of Right Under Rule 24 ofthe Federal Rules of Civil Procedure. Rule 24 of the Federal Rules of Civil Procedure governs the standards and procedures necessary to intervene as a party. Kennard, 2001 U.S. Dist. LEXIS 25785 at * 5. Rule 24 addresses intervention as a matter of right, providing, in relevant part, as follows: 7 Case No.: 90-10037-CIV-MOORE Florida Kev Deer v. Brown Upon timely application anyone shall be permitted to intervene in an action. . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Thus, an applicant may intervene if: (I) the application is "timely"; (2) the applicant claims , an "interest" in the subject of the action; (3) the applicant's interest "may as a practical matter" be "impaired or impeded"; and (4) the applicant's interests is not "adequately represented by existing parties". Id. at * 6; Jiminez v. General Motors COlp., 2003 U.S. Dist. Lexis 4079 (E.D. La. 2003); Dixon Ticonderoia Co. v. U.S. Customs and Border Protection, 2005 Ct. IntI. Trade LEXIS 108 (Aug. 19,2005). In addition to establishing its qualification for intervention under Rule 24(a)(2), a party seeking to intervene as of right must demonstrate that it has standing under Article In of the United States Constitution. The Fund for Animals. Inc., 322 F .3d at 731. A. Monroe County Has Standing. To establish standing under Article III, a prospective intervenor - like any party _ must show: (1) an injury-in-fact, (2) causation, and (3) redressability. Id. at 733. In the instant case, Monroe County owns at least four (4) properties which are directly subject to the impacts of the Injunction, and Monroe County is in the process of attempting to acquire two (2) additional properties which are also subject to the Injunction. These properties were 8 Case No.: 90.10037.CIV-MOORE FlorIda Kev Deer v. Brown acquired or are in the process of being acquired for the express purpose of building affordable housing. Moreover, Monroe County has complied with all criteria that has been established in order to ensure that flood insurance would be available within its boundaries. Therefore, pursuant to Congressional mandate, FEMA "shall" provide flood insurance, and the County is entitled to issuance of same. See 42 U.S.c. ~4012 (c). Monroe County also owns property subject to the Injunction. Finally, Monroe County is the governing body elected by the residents of Monroe County, many of whom own property subject to the Injunction and all of whom will suffer from the impacts of the Injunction on affordable housing. As such, there is little question that Plaintiffs' filing ofthis action has caused Monroe County injury and that a judgment granting or denying this ,action will redress Monroe County's injury. See id. at 734. Accordingly, Monroe County has established its standing. B. The Application Is Timely. The timeliness of a motion to intervene is assessed "in light of all the circumstances, including the length oftime since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence. of any unusual circumstances". Clinton, 255 F.3d at 1250 (Quotini Sanguine Ltd. v. United States Dep't of Interior, 736 F.2d 1416, 1418 (10th Cir. 1984) (citations omitted). "The analysis is contextual; absolute measures oftimeliness should be ignored". Sierra Club v. Espy, 18 F .3d 9 Case No.: 90-10037-CIV-MOORE Florida Kev Deer v. Brown 1202,1205 (5th Cir. 1994); see also, Stupak-Thrall v. Glickman, 226 F.3d467, 475 (6th Cir. 2000) (absolute measure of time between filing of the complaint and the motion to intervene is one ofleast important circumstances). Federal courts should allow intervention "where no one would be hurt and greater justice could be attained". Sierra Club, 18 F.3d at 1205. In the instant case, Monroe Countis Motion to Intervene should be deemed timely filed. Monroe County was never served by Plaintiffs or by the Federal Defendants with the Complaint or with the Plainti,ffs' Motion for Permanent Injunction which was filed in April, 2005. Monroe County was unaware that Plaintiffs were seeking an injunction until after the District Court entered the Injunction. The County thereafter acted expeditiously, holding a special meeting on October 12, 2005 to address the matter, where the Board of County Commissioners voted unanimously to seek intervention in the District Court In such cases, intervention for purposes of appeal and further proceedings is proper even after judgment has been entered. Dixon Ticonderoga Co., supra. The motion was brought without delay once the Injunction was discovered, before the time for appeal has run,2 and creates no potential prejudicial impact on existing parties. Accordingly, Monroe County's application to intervene is timely. 2 FRAP 4(B) provides that when the United States or its officer or agency is a party to an action, a notice of appeal may be filed by any party within 60 days after the order appealed from is entered. 10 Case No.: 90-10037-CIV-MOORE Florida Kev Deer v. Brown C. Monroe County Has A Direct, Substantial and Protectable Interest In The Subject Matter Of This Lawsuit. The right to intervene in a federal lawsuit exists when an applicant seeking intervention establishes that he has an "interest" in the subject matter of the lawsuit. Id. at * 8. The "interest" test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. Id. Courts have also held that a conclusion that an applicant has constitutional standing is alone sufficient to establish an interest relating to the subject of the action. See The Fund for Animals. Inc., 322 F.3d at 735. An intervenor's interest is also obvious when he asserts a claim to property that is the subject matter of the suit. Id. citing Foster v. Gueory, 655 F .2d 1319,1323-24 (D.C. Cir. 1981); see also United States v. Am. Tel. & Tel. Co., 642 F.2d 1285,1291-93 (D.C. Cir. 1980) (holding that a prospective intervenor possessed the requisite interest in a database that another company sought from the government because the database had been prepared by the intervenor). In the instant case, Monroe County's establishment of its constitutional standing is sufficient to show its interest in the subject of this action. Monroe County is the owner of the property for which, flood insurance is now unavailable due to the Injunction. Accordingly, Monroe County has a direct and substantial interest in this lawsuit for purposes . of Rule 24(a)(2) of the Federal Rules of Civil Procedure. 11 Case No.: 90-10037-CIV.MOORE Florida Kev Deer v. Brown Second, 42 U.S.C. ~4012 ( c) provides that the Director ofFEMA shall make flood insurance available in those States or areas (or subdivisions thereof) which he has determined have- (1) evidenced a positive interest in securing flood insurance coverage under the flood insurance program, and (2) given satisfactory assurance that by December 31, 1971, adequate land use and control measures will have been adopted for the State or area (or subdivision) which are consistent with the comprehensive criteria for land management and use developed under section 1361 [42 USC ~4102], and that the application and enforcement of such measures will commence as soon as technical information on floodways and on controlling flood elevations is available. Monroe County has complied with all criteria necessary to insure that flood insurance will be available. Finally, there are approximately 49,000 properties in Monroe County subject to the Injunction. Monroe County, the elected representative of its residents, clearly has a significant and- vital interest in the issuance of the Injunction. D. Monroe County's Interests May Be Impaired Or Impeded By This Action. Rule 24(a)(2) also requires that an intervenor demonstrate that the disposition of the action may as a practical matter impair or impede his ability to protect his interest. See Clinton, 255 F.3d at 1253. To satisfy this element of the intervention test, a would-be 12 Case No.: 90-10037-CIV-MOORE Florida Kev Deer v. Brown intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. Id. quoting Gruner v. Bollinger, 188 F.3d 394,399 (6th Cir. 1999). This burden is minimal. Id. In the instant case, for the reasons set forth above, Monroe County will be significantly impaired by the Injunction. At the very least, the Injunction will impair Monroe County's interest in its own property. Additionally, Monroe County has complied with all criteria necessary to ensure. that flood insurance will be made available pursuant to Congressional mandate. E. The Federal Defendants Cannot Adequately Represent Monroe County's Interests. The United States Supreme Court has declared that the "adequately represented" requirement is satisfied if the applicant shows that the representation of his interest may be inadequate, and the burden of making this showing is minimal. Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 (1972). The possibility that the interests of the applicant and the parties may diverge "need not be great" in order to satisfy this minimal burden. Natural Res. Def. Council v. United States Nuclear Reg. Comm'n, 578 F.2d 1341, 1346 (10th Cir. 1978). This principle is consistent with the language of Rule 2;4 (a)(2), which states that, if the timeliness and interest requirements are met, intervention is of right unless existing . representation is adequate. 13 Case No.: 90-10037-CIV-MOORE Florida Kev Deer v. Brown In determining whether an absent parties' interests are being adequately represented, the Court examines whether the interests of a present party to the suit are such that it will undoubtedly make all of the absent party's arguments; whether the party is capable of and willing to make such arguments; and whether the absent party would offer any necessary element to the proceedings. United States of America ex reI. The Yankton Sioux Tribe v. Gambler's Supply. Inc., 925 F.Supp. 658 (Dist. S.D. 1996). In the instant case, MO,nroe County's interests are not adequately represented by the Federal Defendants. The Federal Defendants' duty is to represent the interests of the federal government and all citizens of the United States and not the interests of Monroe County and its citizens. In essence, Monroe County's interest in the instant action is more narrow and parochial than Defendant's interest. See The Fund for Animals. Inc., 322 F.3d at 737. In this case, in their filings with the District Court the Federal Defendants expressly asserted: While there are certainly other individuals and entities whose interests may be affected, the United States is not in a position to fully articulate all such interests... Federal Defendants respectfully urge the court to carefully consider ... the interests of other parties not before the Court in weighing the appropriateness of any injunctive relief. (Federal Defendants' Memorandum in Opposition to Plaintiffs' Motion for Permanent 14 Case No.: 90-10031-CIV-MOORE Florida Kev Deer v. Brown Injunction and Other Relief, p.19) At the very least, the Federal Defendants have indicated that they do not take a position with respect to Monroe County's Motion to Intervene. As noted in Utah Assoc. of Counties v. Clinton, 255 F.3d 1246 (10th Cir. 2001), the government's "silence on any intent to defend the [intervenor's] special interests is deafening. " Accordingly, based on the above authority, Monroe County has met the minimal burden of showing that the C;ounty's interests may not be adequately represented by the Federal Defendants. II. Monroe County Should Be Granted Leave to Intervene to Participate in Further Proceedings in this Matter Related to the Injunction. Monroe County been discussing with FEMA the application and scope of the Injunction on the issuance of new flood insurance policies under the National Flood Insurance Program. FEMA has recently issued Policy Issuance 2-2005 indicating that flood insurance cannot be written on a building with an actual start of construction date on or after September 12, i005, in Monroe County if the property is found in the list of( 49,000) parcels identified on a U.S. Fish and Wildlife website. This requirement applies to all building permit or construction dates on or after March 12,2005. FEMA has yet to make a formal decision on how to apply the injunction. However, the scope of the Injunction is unclear. For instance, the definition of what constitutes "start 15 Page I I of 4 DOCUMENTS FLORIDA KEY DEER, et aI., Plaintiffs, vs. MICHAEL D. BROWN, et aI., Defendants. Case No. 90-10037-CIV-MOORE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA 2005 U.S. Dist. LEXIS 20147 September 9, 2005, Decided September 12, 2005, Filed CASE SUMMARY: PRIOR HISTORY: Fla. Key Deer v. Brown, 364 F Supp. 2d 1345, 2005 Us. Dist. LEXIS 5981 (S.D. Fla., 2005) PROCEDURAL POSTURE: Plaintiff environmental groups filed a motion for a permanent injunction to enjoin the Federal Emergency Management Agency (FEMA) from issuing flood insurance for any new development in the suitable habitats of eight endangered and threatened species, until such time as the court concluded-that defendant governmental officials had complied with the requirements of the Endangered Species Act (ESA) and the Administrative Procedure Act. OVERVIEW: The U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that FEMA's implementation of the National Flood Insurance Program (NFIP) in the Florida Keys was jeopardizing several endangered and threatened species. The FWS proposed reasonable and prudent alternatives (RPAs) which it concluded would eliminate jeopardy to the species and allow FEMA to continue implementing the NFIP in the Florida Keys. The court held that the opinion was arbitrary and capricious and that the RPAs failed to protect against jeopardy. The groups then filed the instant motion. In granting the motion, the court held that, absent an injunction, environmental harm was likely to occur because any new development would result in habitat loss. The court also held that the traditional consideration of public interest factors had been foreclosed in cases involving violations of the ESA. The court further held that, even if public interest factors were relevant, the public interest relating to the protection of endangered species outweighed all other interests, including the cost of development in the Florida Keys. OUTCOME: The court granted the groups' motion for a permanent injunction. CORE TERMS: habitat, injunction, public interest, flood insurance, endangered species, suitable, irreparable harm, biological, consultation, species, prong,' regulation, permanent injunction, manner consistent, environmental, jeopardy, issuing, enjoin, foreclosed, complied, federal agencies, disserve, prudent, permanent, eligible, irreparable injury, conservation, irreparable, swallowtail, completion LexisNexis(R) Headnotes Civil Procedure> Injunctions> Permanent Injunctions Environmental Law> Natural Resources & Public Lands> Endangered Species Act (HNI] Generally, in order to be entitled to a permanent injunction, a plaintiff must show: (I) success on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the plaintiff will outweigh any threatened harm the injunction may do to defendant; and (4) granting the permanent injunction will not disserve the public interest. However, in cases involving the Endangered Species Act (ESA), the standard is different. Specifically, the third and fourth prongs of the injunction analysis have been foreclosed by Congress. Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities. The balance of the equities favor an endangered species whenever the ESA has been violated. Injunctive relief serves the public interest where it furthers that clearly-expressed 2005 U.S. Dist. LEXIS 20147, * Page 2 purpose of a statute. Civil Procedure> Injunctions> Elements Environmental Law> Natural Resources & Public Lands> Endangered Species Act (HN2] In deciding whether an injunction is necessary to prevent irreparable harm, courts generally look to whether plaintiff lacks an adequate remedy at law for the damages suffered. However, when addressing environmental harms, environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable. Moreover, where injury to an endangered species is threatened, legal remedies are necessarily inadequate. Accordingly, in determining whether the irreparable injury prong has been satisfied, the trial court considers whether environmental harm is likely to occur. Environmental Law> Natural Resources & Public Lands> Endangered Species Act Public Health & Welfare Law> Social Services> Emergency Services [HN3] The Federal Emergency Management Agency has sufficient discretion to implement the National Flood Insurance Program in a manner consistent with the Endangered Species Act. Environmental Law> Natural Resources & Public Lands> Endangered Species Act (HN4] Under ~ II of the Endangered Species Act (ESA), a court may, enjoin any person, including the United States and any other governmental instrumentality or agency who is alleged to be in violation of any provision of the ESA or regulation issued under the authority thereof 16 u.S es S 1540(g)(1 )(A). There are no exemptions in the ESA for federal agencies. Environmental Law> Natural Resources & Public Lands> Endangered Species Act (HN5] The purposes of the Endangered Species Act include the conservation of the species and of the ecosystems upon which they depend, and every agency of government is committed to see that those purposes are carried out. The agencies of government can no longer plead that they can do nothing about it. They can, and they must. The law is clear. Environmental Law> Natural Resources & Public Lands> Endangered Species Act (HN6] The protection of endangered species is to be given priority over the primary missions of federal agencies. Environmental Law> Natural Resources & Public Lands> Endangered Species Act (HN7] See 16 uses S 1536(d). Environmental Law> Natural Resources & Public Lands> Endangered Species Act (HN8] Section 7(d) of the Endangered Species Act, 16 uses S 1536(d), does not excuse federal agencies from meeting the requirements of 9 7(a)(2) of the Endangered Species Act, 16 USes. S 1536(a)(2). COUNSEL: (*IJ For Plaintiffs: John F. Kostyack, Esq., Mary Randolph Sargent, Esq., National Wildlife Federation, Washington, DC; Henry Lee Morgenstern, Esq., Ramrod Key, Florida; David J. White, Esq., St. Petersburg, FL. For Defendant(s): Mark A. Brown, Senior Trial Attorney, Wildlife & Marine Resources Section Environment & Natural Resources Div., U.S. Department of Justice, Washington, DC; U.S. Department of Justice, Washington, DC; Teresa J. Davenport, Assistant U.S. Attorney, Miami, Florida. JUDGES: K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE. OPINIONBY: K. MICHAEL MOORE OPINION: ORDER THIS CAUSE came before the Court upon Plaintiffs' Motion for a Permanent Injunction (DE #2 I 9). UPON CONSIDERATION of the Motion, the Response, and the pertinent portions of the record, the Court enters the following Order. I. BACKGROUND 2005 U.S. Dist. LEXIS 20147, *1 Page 3 A. Parties Plaintiffs, the National Wildlife Federation, Florida Wildlife Federation, and Defenders of Wildlife, brought this action pursuant to the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA") on behalf of eight endangered and threatened species of the Florida Keys: the Key Largo cotton mouse, Key Deer, Key Largo woodrat, Lower Keys marsh [*2) rabbit, Schaus' swallowtail butterfly, silver rice rat, Stock Island tree snail and Key tree-cactus. n 1 Defendants are Michael Brown, in his official capacity as the Undersecretary of Emergency Preparedness and Response for the Department of Homeland Security, which includes the Federal Emergency Management Agency ("FEMA") and Gale Norton, in her official capacity as Secretary of the United States Department of the Interior, which includes the Fish and Wildlife Service ("FWS"). nl With the exception ofthe Key tree-cactus and Schaus' swallowtail butterfly, all of the species are endemic to the Florida Keys. B. Procedural History Plaintiffs filed this action in 1990, seeking to compel FEMA to enter into ESA consultation with FWS concerning FEMA's administration of the National Flood Insurance Program ("NFIp") in the Florida Keys. Following a bench trial, on August 24, 1994, the undersigned directed FEMA to consult with FWS in accordance with its duties under 16 USe. fI536(a)(2)("ESA (*3) ~7(a)(2)"). Florida Key Deer v. Stickney, 864 F Supp. 1222 (S.D. Fla. 1994). As a result of that consultation, FWS determined, in its 1997 Biological Opinion (" 1997 BOil), that FEMA's administration of the NFIP within the Florida Keys was jeopardizing the Key Deer, Key Largo cotton mouse, Key Largo woodrat, Key tree-cactus, Lower Keys marsh rabbit, Schaus' swallowtail butterfly, silver rice rat, Garber's Sponge and Stock Island tree snail. As required by 16 USe. fI536(b)(3)(A), FWS proposed reasonable and prudent alternatives ("RPAs") which it concluded would eliminate jeopardy to these species and allow FEMA to continue implementing the NFIP in the Florida Keys. FEMA adopted the 1997 RPAs recommended by FWS as its plan for avoiding jeopardy. Plaintiffs filed an Amended Complaint in 1997 (DE #119), claiming that the BO and accompanying RPAs recommended by FWS, and implemented by FEMA, violated both the ESA and APA. Subsequently, in 2003, FWS and FEMA re-initiated the consultation process. n2 As a result of this re-initiation, FWS issued an amended BO ("2003 BOil). Like the 1997 BO, the 2003 BO concluded that FEMA's administration of the NFIP [*4) in the Florida Keys was jeopardizing the same species as those listed in the 1997 BO, with the exception of the Garber's Sponge (" Listed Species"). As required by law, the 2003 BO included RPAs which FEMA again adopted ("2003 RPAs"). n3 Plaintiffs then filed a Second Amended Complaint (DE #187) in 2003 challenging the sufficiency of the 2003 BO and the 2003 RPAs. n2 The 1997 BO contained a re-initiation clause which required FEMA to re-initiate consultation if Monroe County did not complete a habitat recovery plan within four years. FWS A.R. #20 at 5.5. Because Monroe County failed to complete a plan, FEMA re-initiated consultation as required. n3 Plaintiffs contend, and Defendants do not dispute, that the 2003 RPAs are materially identical to the 1997 RPAs. Def. Mot. For Summ. J. at I. (FWS reaffirmed the RPA, and FEMA has elected to continue implementing the RPA). On March 29, 2005, the Court granted Plaintiffs' Motion for Summary Judgment ("March 29, 2005 Order"). Specifically, the Court held: (I) that [*5) FWS's preparation of the 2003 BO was arbitrary, capricious or otherwise not in accordance with the law; (2) that the 2003 RPAs failed to protect against jeopardy; (3) that FEMA's failure to engage in any independent analysis of the sufficiency of the 2003 BO and 2003 RPAs was arbitrary, capricious or otherwise not in accordance with the law; and (4) that FEMA was in violation of ESA f 7(a)(l) for failing to develop and implement a conservation program for the Listed Species. Plaintiffs now move for a permanent injunction to enjoin FEMA from issuing flood insurance for any new development in the suitable habitats of the Listed Species in Monroe County, Florida, until such time as the Court concludes that Defendants have complied with the requirements ofthe ESA and the APA. n4 In addition, Plaintiffs request that the Court retain jurisdiction over the case until such time as the Court concludes that Defendants have complied with the March 29 2005 U.S. Dist. LEXIS 20147, *5 Page 4 Order. Finally, Plaintiffs request that the Court remand the action to Defendants to prepare a new BO and issue new RPAs consistent with requirements ofthe ESA, APA, and the March 29, Order, within nine months. n4 Plaintiffs define new development as "any residential or commercial development where construction of the structure has yet to begin." PI. Mem. at 2. [*6) Defendants have agreed to re-initiate consultation in light of the March 29, 2005 Order. In addition, Defendants do not contest Plaintiffs' request that the Court retain jurisdiction over the case until such time as the Court concludes that Defendants have complied with the March 29, 2005 Order. Therefore, the only issue left to be resolved is Plaintiffs' Motion for a Permanent Injunction, which Defendants have opposed. II. STANDARD FOR A PERMANENT INJUNCTION [HN I] Generally, in order to be entitled to a permanent injunction, a plaintiff must show: (I) success on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury ifthe injunction is not granted; (3) that the threatened injury to the plaintiff will outweigh any threatened harm the injunction may do to defendant; and (4) granting the permanent injunction will not disserve the public interest. Siegel v. LePore, 234 F3d 1163, 1176 (lIth Cir. 2000); Clark Const. Co., Inc. v. Pena, 930 F Supp 1470, 1477 (MD. Ala. 1996). However, in cases involving the ESA, the standard is different. Specifically, the third and fourth prongs of the injunction analysis have been [*7) foreclosed by Congress. See Tennessee Valley Auth. v. Hill, 437 US 153, 57 L. Ed. 2d 117, 98 S Ct. 2279 (1978). As the Supreme Court held in TVA, "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities. . . ." See also Strahan v. Coxe, 127 F3d 155, 160 (9th Cir. 1997) (holding that "the balancing and public interest prongs have been answered by Congress' determination that the balance of hardships and the public interest tips heavily in favor of protected species."); Leatherback Sea Turtle v. Flagler County Bd. of County Comm'rs, 359 F Supp. 2d 1209, 1212 (MD. Fla. 2004)(finding that, given the monumental and important aims of the ESA, Congress effectively removed from the courts their traditional equitable discretion in injunction proceedings). Similarly, this Court found in the 1994 Order that: precedent in this Circuit clearly supports the congressional intent that the balance of the equities should favor an endangered species whenever the [ESA] has been violated. . . . Injunctive relief serves the public interest where it furthers that clearly-expressed [*8) purpose ofa statute, as in the present [ESA] case. . ." Defendants appear to agree that the third prong of the injunction analysis has been foreclosed in ESA cases. Def. Mem. at 3. However, Defendants argue that the public interest prong has not been foreclosed in ESA cases, and that entering an injunction in this case would disserve the public interest. Id. at 19. In an abundance of caution, the Court will therefore address the merits of Defendants arguments regarding the public interest factors. III. DISCUSSION The parties do not dispute that Plaintiffs have been successful on the merits. In addition, as discussed supra, the law is clear that the balance of harms prong of the injunction analysis weighs in favor of the Listed Species. Accordingly, in deciding whether Plaintiffs are entitled to an injunction, the Court will address: (I) whether an injunction is necessary to prevent irreparable harm; and (2) Defendants' arguments regarding the public interest prong. Finally, the Court will address the additional arguments raised by Defendants in their Memorandum opposing Plaintiffs' Motion for a Permanent Injunction. n5 n5 There has also been an amicus curiae brief submitted by the National Association of Home Builders ("NAHB"). In its brief, the NAHB either reargues issues that have already been decided by this Court, i.e. that the Listed Species are adequately protected under the current RPAs, or rehashes the arguments raised by Defendants. Specifically, the NAHB focuses much of its brief on the public interest factors. However, the NAHB's concept of the public interest in the preservation of endangered species is too narrow, and transparently reveals their own, private interests. Accordingly, the Court concludes that the amicus brief raises no new issues, and is therefore given little weight by the Court. 2005 U.S. Dist. LEXIS 20147, *8 Page 5 [*91 A. Irreparable Injury (HN2] In deciding whether an injunction is necessary to prevent irreparable harm, Courts generally look to whether plaintiff lacks an adequate remedy at law for the damages suffered. MediaOne of Delaware, Inc. v. E&A Beepers and Cellulars, 43 F Supp. 2d 1348, 1354 (SD. Fla 1998). However, when addressing environmental harms, the Supreme Court has held that "environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least oflong duration, i.e. irreparable." Amoco Prod. Co. v. Vill. ofGambell, 480 US 531, 545, 94 L. Ed. 2d 542, 107 S Ct. 1396 (1987). Moreover, where injury to an endangered species is threatened, legal remedies are necessarily inadequate. See Weinberger v. Romero-Barcelo, 456 U.S 305, 314, 72 L. Ed. 2d 91, 102 S Ct. 1798 (1982)(explaining that only injunctive relief can vindicate the objectives of the ESA when the existence of an endangered species is threatened); Sierra Club v. Norton, 207 FSupp.2d 1310 (SD.Ala. 2002)(finding that the threatened destruction of the optimal habitat of an endangered species is clearly irreparable). Accordingly, in determining whether the irreparable [*101 injury prong has been satisfied, the Court considers whether environmental harm is likely to occur. Plaintiffs ask the Court to take a step further, and find that the irreparable injury prong, much like the third and fourth prongs of the injunction analysis, is foreclosed in ESA cases. According to Plaintiffs, irreparable harm is presumed when the ESA has been violated. PI. Mem. at 5. Defendants disagree, arguing that Plaintiffs must demonstrate irreparable harm in cases involving violations of the ESA. Def. Mem. at 4. While the Court is inclined to agree with Plaintiffs n6 , the facts of this case make it unnecessary to do so. A review of the record clearly demonstrates that, absent an injunction, environmental harm is likely to occur. Specifically, the 2003 80 contains the following conclusions: "Any habitat loss will constitute a permanent reduction in the number of cotton mice in the Florida Keys and reduce the long-term conservation of Key-Largo cotton mice." "Any habitat loss will constitute a permanent reduction in the land available in the Florida Keys for Key Largo woodrats, and generally reduce the long term number conservation for the remaining population. [*IlI " "Any occupied habitat loss will generally reduce the viability of the remaining population [of the lower Keys marsh rabbit). In addition, the proposed action will increase the human population of the Keys which will result in increases in feral and domestic cats, a primary threat to this species." Any habitat loss will constitute a further, permanent reduction in the number of [Schaus swallowtail butterfly] . . . and generally reduce the overall viability for the remaining population. Any habitat loss will constitute a further, permanent reduction in the population of [the Silver rice rat] . . . and reduce the overall viability for the remaining population. FWS A.R. #88 at 45-48 (emphasis added). In addition, in a separate discussion of the status of the Key deer, FWS notes that: the contraction in range [due to habitat loss and fragmentation] has decreased the overall viability of the Key deer population. . . . The main threat to the continued existence if the Key deer is the alteration of habitat caused by residential and commercial construction activities. FWS A.R. #88 at 9 (emphasis added). Accordingly, Defendants' [*121 own administrative record clearly illustrates that any habitat loss or fragmentation jeopardizes the continued existence of the Listed Species. n6 It does not appear that the Eleventh Circuit has addressed whether irreparable harm is presumed from violations of the ESA. However, district courts within this circuit, as well as other circuit courts, have concluded that violations of the ESA are per se irreparable. See e.g. Loggerhead Turtle v. County Council of Volusia County, Florida, 92 F Supp. 2d 1296 (MD.Fla.2000) "any threatened harm (under the ESA] is per se irreparable harm" 2005 U.S. Dist. LEXIS 20147, *12 Page 6 (emphasis in original); Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F3d 461, 37 Vi. 526 (3rd Cir. 1997)(when faced with a request for injunctive relief under the ESA, a plaintiff need only show that a defendant has violated the act to be entitled to injunctive relief). Presuming irreparable harm is also consistent with the language and intent of the ESA. See Tennessee Valley Auth., 453 U.S at 153. [*13) Nevertheless, Defendants argue that an injunction is unnecessary because the continued implementation of the 2003 RPAs will adequately protect against irreparable harm during the remand period. Def. Mem. at 16. This argument is disingenuous. As this Court has already concluded in the May 29, 2005 Order, In summation, the record reveals that the 1997 RPAs illegally relied on voluntary measures and actually affected only eight projects, out of the more than two thousand permitted to go forward within the suitable habitat of the Listed Species. In addition, the 1997 RPAs do not account for the cumulative or secondary effects of any of the projects. For these reasons, the Court finds that the 2003 RPAs, which merely re-adopt the 1997 RPAs, run counter to the evidence before FWS at the time the 2003 BO was issued and the 2003 RPAs proposed, do not protect against jeopardy, and are therefore invalid under the APA. See Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 US 29, 43, 77 L. Ed. 2d 443, 103 S Ct. 2856 (1983). (footnotes omitted)(emphasis in original). Thus, contrary to Defendants assertions, the continued implementation of the 2003 RPAs during the remand period will not prevent Plaintiffs from suffering [*14) irreparable harm. As discussed supra, jeopardizing the existence of an endangered or threatened species through destruction of suitable habitat clearly constitutes irreparable harm. See Norton, 207 F Supp. 2d at 1340. As a result, regardless of whether violations of the ESA are per se irreparable, the Court concludes that an injunction is necessary to prevent irreparable harm. B. Public Interest As discussed supra, the traditional consideration of public interest factors has been foreclosed in cases involving violations of the ESA. However, even assuming Defendants are correct, and that the Court should consider the public interest factors in this case, the Court concludes that the public interest is best served by granting an injunction. Defendants argue that the interests of the NAHB, should be "carefully considered" when addressing the public interest factors. Def. Mem. at 18. Accordingly, it appears that Defendants contend that the NAHB represents the public interest, and that their interests outweigh the other interests relating to the protection of endangered species. This argument is unsupported by the ESA and contrary to Congressional intent [*15) and Supreme Court precedent. See generally Tennessee Valley Auth., 453 US at 153. The NAHB is an association of private developers, and represents the interests of its members. See Amicus Brief at 1. The NAHB opposes Plaintiffs' Motion on the grounds that an injunction would disserve the public's interest in receiving flood insurance under the NFIA. Id. at 7. The NAHB's interpretation of the relevant public interest regarding violations of the ESA is too narrow. As the Supreme Court held in TVA, "from the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask." 437 U.S at 178 (emphasis in original). Furthermore, "Congress has decided that any possible expense and inconvenience to the public cannot equal the potential loss from extinction." Sierra Club v. Marsh, 816 F2d 1376, 1386 n. 13; Tennessee Valley Auth., 437 US at 188 ("Quite obviously, it would be difficult for a court to balance the loss of a sum [*16) certain-even $100 million-against a congressionally declared "incalculable" value, even assuming we had the power to engage in such a weighing process, which we emphatically do not."). Finally, the public interest, as identified by Congress in passing the ESA, favors informed agency decision-making and the protection of endangered species. Norton, 207 F Supp. 2d at 1342. Accordingly, the Court is not persuaded that Defendants are correct in arguing that the interests represented by the NAHB should be "carefully considered" when addressing the public's interest associated with the protection of endangered species. 2005 U.S. Dist. LEXIS 20147, *16 Page 7 Defendants also contend that an injunction would disserve the public interest because it would cause financial hardship to some property owners in Monroe County by making it more expensive to obtain flood insurance for new construction within the suitable habitat of the Listed Species. Def. Mem. at 19. Again, Defendants perception of the public interest analysis it too narrow. See generally Tennessee Valley Auth., 437 US at 153. First, the Court notes that certain areas of the Florida Keys are included in the Coastal Barrier Resource System and therefore [*17) currently excluded from receiving flood insurance pursuant to the Coastal Barrier Resource Act. PI. Mem. at 14. There is nothing in the record to indicate that exclusion of these areas from receiving federal flood insurance has caused the type of economic hardship or personal distress described by Defendants. In addition, assuming Defendants are correct, and that an injunction would make it more expensive for landowners to obtain flood insurance within the suitable habitat of the Listed Species, such an outcome would not disserve the public interest. Instead, providing financial incentive for development outside of the suitable habitat of the Listed Species, fits squarely within the goals of the ESA. While the Court is sensitive to the interests of individuals who may be affected by an injunction, Congress has mandated that the protection of endangered species is to be given the highest of priorities. Tennessee Valley Auth., 437 U.S at 174. Therefore, the Court cannot conclude that raising the cost of development for some landowners in the Florida Keys outweighs the public's interest in the preservation of endangered species. In addition, as Plaintiffs point out, and as Defendants [*18) fail to dispute, given the local ordinances which limit the amount of development in the Florida Keys, an injunction is not likely to have a large overall affect on development in the Florida Keys. See Monroe County Land Development Regulations, Chapter 9.5, ~ 9.5-120. Instead, the more likely outcome of an injunction would be a shift of development towards those areas that are not within the suitable habitat of the Listed Species. In summation, even assuming the public interest factors have not been foreclosed in cases involving violations of the ESA, it is clear that "the public interest, as identified by Congress in passing. . . the ESA, favors. . . the protection of endangered species." Norton, 207 F Supp. 2d at 1342. Defendants' arguments regarding the public interest factors do nothing to overcome the public interest factors identified by Congress. D. Defendants Additional Arguments Defendants raise additional arguments in support of their opposition to Plaintiffs' Motion for a Permanent Injunction. First, Defendants contend that entering an injunction in this case would exceed the Court's equitable power. Def. Mem. at 6. Next, Defendants argue that [*19) Plaintiffs' Motion should be denied because it is contrary to Congressional intent. Id. at 12. Finally, Defendants maintain that the Court should not enter an injunction because doing so would be inconsistent with section 7(d) of the ESA, 16 USe. J 1536(d). Id. at 18. I. Court's Power According to Defendants, because FEMA lacks the discretion to limit the availability of flood insurance within an otherwise eligible community, the Court cannot prohibit FEMA from issuing new flood insurance policies within the suitable habitat of the Listed Species during the remand period Def. Mem. at 8. Plaintiffs disagree, arguing: (1) that regardless of whether FEMA can or cannot limit the availability of flood insurance within an otherwise eligible community, FEMA has ample discretion under the NFIA to implement the NFIP in a manner consistent with the ESA; and (2) the Court has ample authority to limit the availability of flood insurance within the suitable habitat of the Listed Species until such time as Defendants have convinced the Court that they have complied with the requirements of the ESA and the APA. The Court agrees with Plaintiffs on both issues. [*20) First, as discussed infra, this Court, and other courts, have concluded that [HN3] FEMA has sufficient discretion to implement the NFIP in a manner consistent with the ESA. n7 Second, FEMA's discretion, or lack thereof, to curtail the availability of flood insurance within an otherwise eligible community does not limit the Court's ability to enjoin FEMA from issuing flood insurance to new developments within the suitable habitat of the Listed Species during the remand period. n7 The Supreme Court has consistently instructed that statutes written in broad, sweeping language should be given broad, sweeping application," Consumer Electronics Ass'n v. Fe. e., 358 US App. D.e. 180,347 F3d 291, 298 (D.e. Cir. 2003). 2005 U.S. Dist. LEXIS 20147, *20 Page 8 a. FEMA has discretion to Implement the NFIP consistent with the requirements of the ESA. In the 1994 Order, this Court held that: FEMA does in fact have ample discretion to implement the NFIP in a way that is compatible with the ESA. In enacting the NFIA , Congress gave FEMA broad discretion to "issue [*211 such regulations as may be necessary to carry out the purpose of this Act." 42 US e.~ 4128(a). The NFIA also gives FEMA broad discretion to establish specific criteria of eligibility for communities to participate in the NFIP. Id. ~ 4012(c). FEMA has done so, at 44 C.F.R. Part 60, Criteria for Land Management and Use. These federal regulations specifically set forth criteria for local land use regulations that, at a minimum, communities must adopt in order to participate in the NFIP. . . . In addition to adopting regulations setting criteria for land management and use, FEMA has also adopted regulations to implement the Council on Environmental Quality's (CEQ) regulations, 40 e.FR. H 1500.1 et seq., which in turn implement the requirements of the National Environmental Policy Act, 42 Us.e. ~~ 4321 et seq. FEMA's regulations, entitled "Environmental Considerations," provides "policy and procedures to enable (FEMA] officials to be informed of and to take into account environmental considerations when authorizing or approving major FEMA actions that significantly affect the environment of the United States. [*221 "44 e.FR. ~10.I(a). FEMA's regulatory criteria, designed to determine whether its actions "significantly affect the environment," include FEMA's consideration of whether "an action will affect, in large measure, wildlife populations and their habitats. . . . , or delicate or rare ecosystems, including endangered species." Id. ~ 10.8(b)(2)(v) (emphasis supplied); see also ~ 1O.8(e)(5). FEMA's regulations also set forth FEMA's environmental policy: FEMA shall act with care to assure that, in carrying out its responsibility, including. . . flood insurance, it does so in a manner consistent with national environmental policies. . . . (emphasis in original). Accordingly, this Court has already concluded that the NFIA provides FEMA with sufficient discretion to meet the requirements of the ESA. n8 n8 Plaintiffs argue that the 1994 Order collaterally estops Defendants from re-arguing that FEMA does not have the discretion under the NFIA to implement the NFIP in a manner consistent with the ESA. Defendants, disagree arguing that the 1994 Order and the instant Motion are part of the same proceeding, and therefore the law of the case doctrine applies. Both parties rely on Arizona v. California, 460 U.S 605, 75 L. Ed. 2d 318, 103 S Ct. 1382 (1983). In Arizona, the Supreme Court held that, although the technical rules of preclusion were not strictly applicable, the need for certainty and finality in adjudicatory proceedings weighed against allowing the relitigation of certain claims. Those same principles apply here. This case has gone through several stages of litigation since it was filed in 1990, one of which being the Court's conclusion in 1994 that FEMA had sufficient discretion to implement the NFIP in a manner consistent with the ESA. Accordingly, while the principals of preclusion are not strictly applicable to the instant proceeding, the need for finality after fifteen years of litigation weighs against relitigating whether the NFIA provides FEMA with adequate discretion to carry out the NFIP consistent with the requirements of the ESA. The Court has already held that FEMA has such discretion. [*231 Other courts have also held that FEMA has discretion to implement the NFIP in a manner consistent with the ESA. Nat'l Wildlife Fed'n v. FEMA, 345 F Supp. 2d 1151,1173 (WD. Wash. 2004). In National Wildlife, the Court held that: (although] FEMA has no discretion when it comes to the provision of flood insurance to persons in NFIP- eligible communities, it has discretion to act in a manner that could benefit (protected species] . . . in mapping the floodplains, in developing and promulgating the minimum eligibility criteria, and in implementing the CRS [community rating system]. Accordingly, the Court holds that FEMA's implementation of the NFIP, with the exception ofthe actual sale of flood insurance, is a discretionary "agency action" for the purposes of Section 7(a)(2) of the ESA. 1d; see also American Rivers v. US Army Corps of Engineers, 271 F Supp.2d 230, 252 (D.D.e.2003) (finding that the Flood Control Act provided the Secretary of the Army with sufficient discretion to consider its ESA obligations, and that 2005 U.S. Dist. LEXIS 20147, *23 Page 9 "ESA compliance can come at the expense of other interests, including navigation and flood control given (*24) the Supreme Court's conclusion that the ESA revealed a conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies)(internal quotations and citation omitted)(emphasis in original). Accordingly, it is clear that, regardless of whether FEMA can limit the availability of flood insurance within an otherwise eligible community, FEMA has sufficient discretion within the framework of the NFIA to implement the NFIP in a manner consistent with the requirements of the ESA. n9 See American Rivers, 271 F Supp.2d at 252 (holding that "with regard to ESA obligations, courts have found that if an agency has any statutory discretion over the action in question, that agency has the authority, and thus the responsibility, to comply with the ESA.")(emphasis added). Therefore, it is not an abuse of discretion for the Court to enter an injunction in this case. n9 The Court notes that its conclusion that FEMA has sufficient discretion under the NFIA to implement the NFIP consistent with the requirements of the ESA was an essential holding of the 1994 Order. If FEMA had no discretion to meet the requirements of the ESA, there would be no point in requiring consultation. In other words, either FEMA must consult with FWS and develop reasonable and prudent alternatives that satisfy the requirements of the ESA or they should not consult at all. Requiring consultation, but then later holding that FEMA has no discretion to administer the NFIP consistent with the requirements of the ESA, would render the consultation requirement meaningless. (*25) b. The Court is within its power to issue and injunction (HN4] Under section 11 of the ESA a court may, "enjoin any person, including the United States and any other governmental instrumentality or agency. . . who is alleged to be in violation of any provision" of the ESA "or regulation issued under the authority thereof. . . ." 16 USe. 9 1540(g)(J)(A). "There are no exemptions in the [ESA] for federal agencies. . . ." Tennessee Valley Auth., 437 US at 188. Thus, the ESA clearly provides the Court with the ability to enter an injunction. The fact that FEMA may be unable to limit the availability offlood insurance within an otherwise eligible community is unrelated to the Court's ability to prevent Plaintiffs from suffering irreparable harm until such time as an adequate BO is prepared and sufficient RPAs in place. n 1 0 n I 0 The Court notes that FEMA is correct in arguing that reasonable and prudent alternatives are limited to actions that can be taken by the federal agency. However, as the Court has already concluded, there is nothing to prevent FEMA from administering the NFIP program in a manner consistent with the requirements of the ESA. (*261 Injunctions have been entered pending the completion of adequate biological opinions in similar cases. For example, in Thomas v. Peterson, 753 F2d 754, 764 (9th Cir.J985), the Ninth Circuit enjoined the Forest Service from constructing a road, pending compliance with the ESA. There, the Court concluded that the Forest Service's failure to consult with FWS violated the procedural requirements of the ESA, and that "given a substantial procedural violation of the ESA in connection with a federal project, the remedy must be an injunction of the project pending compliance with the ESA." Id. (emphasis added). Similarly, in Greenpeace Foundation v. Mineta, 122 FSupp. 2d 1123, 1137 (D. Hawaii 2000), the court entered an injunction pending the completion of an adequate biological opinion. Id. In Mineta, the defendants prepared a biological opinion and implemented a plan to remove jeopardy to an endangered species based on the conclusions of the biological opinion. Id. The court determined that the biological opinion was inadequate as a matter of law. Id. The court further concluded that, because the plan implemented by the defendants (*27) to avoid jeopardy was based on an inadequate biological opinion, there was no assurance that the plan to avoid jeopardy would not harm the endangered species. Id. Defendants were therefore in violation of Section 7, and the court was compelled to enjoin the federal action. Id. Here, much like in Mineta, Defendants have failed to prepare an adequate biological opinion. See May 29,2005 Order. FEMA has an affirmative obligation under Section 7 (a)(2) to insure that agency action will not jeopardize the continued existence of the Listed Species or adversely modify their habitat. In the absence of an adequate biological opinion, FEMA is unable to meet this affirmative obligation with respect to its administration of the NFIP in the Florida Keys. As a result, the procedural requirements of the ESA have not been met and "an injunction pending compliance must be the remedy." 2005 U.S. Dist. LEXIS 20147, *27 Page 10 Thomas, 753 F2d at 764. Defendants' violation of Section 7 thus compels the Court to enjoin FEMA from issuing flood insurance policies to new developments within the suitable habitat of the Listed Species until such time as an adequate biological opinion in completed, and sufficient RPAs [*28) in place. 2. Entering an Injunction is not Contrary to Congressional Intent In TVA, the Supreme Court held that (HN5] "the purposes of the [ESA] included the conservation of the species and of the ecosystems upon which they depend, and every agency of government is committed to see that those purposes are carried out. . . . The agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear." 437 U.S at 184(citations omitted) (emphasis in original). Defendants contend that granting Plaintiffs' Motion would require FEMA to violate Congress' mandate that FEMA 'shall make flood insurance available. . . ." Def. Mem. at 11. Thus, according to Defendants, regardless of the Court's power to enjoin agency actions under the ESA, the Court is limited in this case by the language and intent of the NFIA. Id. Even assuming Defendants' interpretation of the NFIA is correct, the Court is not persuaded that such an interpretation limits the Court's equitable powers. See Tennessee Valley Auth., 437 US at 193-4. In TVA, the Supreme Court addressed whether the construction of a dam could be completed when doing [*29) so would jeopardize the existence of the snail darter, an endangered species. 437 U.S at 194. Defendants argued that the Court could not enjoin the construction of the dam because Congress had specifically authorized and funded the dam's construction. Id. The Supreme Court disagreed. While the Court did conclude that there was "an irreconcilable conflict between operation of the Tellico Dam and the explicit provisions of S 7 of the Endangered Species Act. . .", the Court concluded that the dam could not be completed because Congress had spoken in the clearest of words, giving "endangered species priority over the primary missions of federal agencies." Id. at 185. Similarly, Defendants in this case contend that the Court cannot override the express intent of Congress that FEMA "shall issue flood insurance." Def. Mem. at 12. For the same reasons as the defendants in TVA were unsuccessful, Defendants' arguments here are equally unsuccessful. Congress has clearly stated that (HN6] the protection of endangered species is to be given priority over the primary missions of federal agencies. Thus, it is not within the Court's discretion to conclude that FEMA's [*30) administration of the NFIP in Monroe County outweighs society's interest in the protection of endangered species. The Court notes that the injunction shall only remain in effect until the remand is complete and the Court determines that Defendants have complied with the May 29, 2005 Order, the ESA, and the APA. The Court further notes that FEMA is not required to implement a plan which prohibits the issuance of flood insurance to new developments within the suitable habitat of the Listed Species. Instead, Defendants are free to develop a conservation plan and reasonable and prudent alternatives in any manner they choose, so long as their actions are consistent with this Court's Orders, the ESA and the APA. The Court reiterates that FEMA is permitted to issue flood insurance within Monroe County outside the suitable habitat of the Listed Species. Should FEMA reach a different conclusion, such a result would be the product of FEMA's own narrow interpretation of the NFIA, and not because of this Court's Order. E. ESA Section 7(d) Section 7(d) provides that: (HN7] after initiation of consultation required under subsection (a)(2) of this section, the Federal agency and the permit [*31) or license applicant shall not make any irreversible commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section. 16 USe. S 1536(d). Section 7(d) was not part of the original ESA. Nat'l Wilderness lnst. v. United States Army Corps ofEng'rs, 2005 US Dist. LEXIS 5159, Civ. No. 01-0273 (TFH), 2005 WL 691775 (D.D.e. March 23,2005). Rather, it was added after the Supreme Court's decision in TVA to prevent Federal agencies from steam rolling activities in order to secure completion of projects regardless of the impacts on endangered species. Id. According to Defendants, FEMA should be allowed to continue issuing new flood insurance policies within the 2005 U.S. Dist. LEXIS 20147, *31 Page II suitable habitat of the Listed Species during the remand period because doing so would not violate ESA section 7(d). Defendants are wrong for two reasons. First, [HN8] Section 7(d) does not excuse federal agencies from meeting the requirements of Section 7(a)(2). See Conner v. Burford, 848 F2d 1441, 1455 n. 34 (9th Cir. 1988)(finding that Section 7(d) (*32) does not amend Section 7(a)'s requirement of a comprehensive biological opinion). Second, even assuming that Section 7(d) provided the proper standard for an injunction, the current administration of the NFIP in the Florida Keys violates Section 7(d). As discussed in detail in the May 29, 2005 Order, habitat loss and fragmentation of the suitable habitat of the Listed Species continues under FEMA's current plan. Such destruction of suitable habitat may foreclose future options available to Defendants when issuing new RPAs. Therefore, the current administration of the NFIP in the Florida Keys violates Section 7(d) of the ESA. VII. CONCLUSION Since this case was filed more than fifteen years ago, Defendants have repeatedly failed to adhere to the requirements of the ESA. Defendants' own documents illustrate that any additional habitat modification or fragmentation of the suitable habitat of the Listed Species further jeopardizes their existence. As a result, the failure to grant Plaintiffs' Motion would seriously diminish the Court's ability to provide Plaintiffs with meaningful and effective relief in this action. Accordingly, it is ORDERED AND ADmDGED that Plaintiffs' (*331 Motion for a Permanent Injunction (DE #) is GRANTED. It is further ORDERED AND ADmDGED and based thereon that: I) This Action is remanded to Defendants for consideration of the effects of the National Flood Insurance Program in Monroe County, Florida on the Listed Species. 2) Defendants shall submit a new biological opinion and their plan for compliance with the March 29, 2005 Order, and the ESA and APA, within nine months of the date of this Order. 3) The Court maintains jurisdiction until such time as Defendants demonstrate compliance with the March 29, 2005 Order. 4) The parties shall notify the Court upon completion of the remand and their intent to file additional memoranda. 5) FEMA is hereby enjoined from issuing flood insurance for new developments nIl in the suitable habitats of the Listed Species in Monroe County, Florida from the date of this Order until such time as the Court concludes that Defendants have complied with the March 20, 2005 Order, the ESA and the APA. 6) Suitable habitats are defined as those parcels previously deemed by FWS as suitable habitat for the Listed Species for purposes of implementation of the 2003 RPAs. FWS shall (*34) submit the List of parcels in the suitable habitat to the Court within twenty (20) days of the date of this Order. 7) Plaintiffs shall submit their application for costs and attorney's fees within thirty (30) days of the of the conclusion of the appeal period. n II Defined as any residential or commercial development where construction of the structure has not yet begun as of the entry of this Order. DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of September, 2005. UNITED STATES DISTRICT mDGE K. MICHAEL MOORE Page I 2 of 4 DOCUMENTS FLORIDA KEY DEER, et al., Plaintiffs, vs. MICHAEL D. BROWN et al., Defendants. Case No. 90-10037-CIV-MOORE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA 364 R Supp. 2d 1345; 2005 U.S. Dist. LEXIS 5981; 18 Fla. L. Weekly Fed. D 424 March 29, 2005, Decided March 29, 2005, Filed SUBSEQUENT HISTORY: Injunction granted at, Remanded by Fla. Key Deer v. Brown, 2005 US Dist. LEXIS 20147 (SD. Fla., Sept. 9, 2005) PRIOR HISTORY: Florida Key Deer v. Stickney, 864 F Supp. 1222, 1994 US Dist. LEXlS 13430 (SD. Fla., 1994) CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff wildlife preser- vation groups sued defendants, the Federal Emergency Management Agency (FEMA) and the United States Department ofthe Interior, including the Fish and Wildlife Service (FWS), under the Endangered Species Act (ESA), 16 US C.S S 1536, and the Administrative Procedure Act (APA), 5 U.SC.S S 706(2)(A), on behalf of eight certain endangered species in the Florida Keys. The parties filed cross-motions for summary judgment. OVERVIEW: The groups initially sued to compel FEMA to enter into an ESA consultation with FWS about its National Flood Insurance Program (NFIP) in Florida. FWS determined that FEMA's NFIP jeopardized the eight species. The groups then challenged FWS's reasonable and prudent alternatives (RPAs). FWS issued an amended biological opinion (BO) that FEMA's NFIP was jeop- ardizing the same species. The groups then filed this amended complaint challenging the sufficiency of the 2003 BO and RPAs. The court granted summary judg- ment for the groups. The 2003 BO violated the ESA and was arbitrary and capricious under the APA. It failed to consider whether FEMA's NFIP was continuing to jeop- ardize the listed species. The 2003 RPAs failed to protect against jeopardy to the species. They illegally relied on voluntary measures and failed to account for the cumula- tive effects of proposed projects or protect against habitat loss and fragmentation. Thus, FEMA's adoption of the 2003 RPAs violated the ESA and the APA. Similarly, the 2003 BO did not adequately protect against adverse mod- ification of the silver rice rat's critical habitat. Further, FEMA failed to develop a conservation program for the listed species. OUTCOME: The court granted the groups' motion for summary judgment and denied the government's motion for summary judgment. CORE TERMS: habitat, species, jeopardy, consulta- tion, modification, conservation, recommendation, suit- able, federal agency, duty, summary judgment, silver, rice, rat, biological, implementing, capricious, jeopar- dize, endangered species, arbitrary and capricious, abuse of discretion, landowner, prudent, illegally, continued ex- istence,jeopardizing, fragmentation, adversely affect, de- struction, recommended LexisNexis(R) Headnotes Administrative Law> Judicial Review> Standards of Review> Standards Generally Environmental Law > Natural Resources & Public Lands> Endangered Species Act (HNI] Under the Endangered Species Act, 16 USC.S. S 1531 et seq., agency decisions are reviewed under the Administrative Procedure Act, 5 USC.S Sf 551 et seq., and 701 et seq. Administrative Law> Judicial Review> Standards of Review> Standards Generally [HN2] Under the Administrative Procedure Act, a court shall hold unlawful and set aside agency actions, findings or conclusions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 US C.S S 706(2)(A). In reviewing agency actions, a court must engage in a "thorough, probing, in-depth review," to determine whether the agency has examined the relevant data and articulated a satisfactory explanation for its ac- tions. In this review, a court considers whether the agency 364 F. Supp. 2d 1345, *; 2005 U.S. Dist. LEXIS 5981, **; 18 Fla. L. Weekly Fed. D 424 Page 2 acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some ba- sis in the record, and whether the agency considered the relevant factors. Under this standard, an action will be set aside if the agency has relied on factors which Congress had not intended it to consider, failed to consider an im- portant aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it can not be ascribed to a difference in view or the product of agency expertise. Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HN3] Section 7(a)(I) of the Endangered Species Act (ESA), 16 US es s 1536, requires all federal agencies, in consultation with Fish and Wildlife Service (FWS), to use their authority to further the goals of the ESA by carrying out programs for the conservation of endan- gered and threatened species. Under ESA ~ 7(a)(2), when any action authorized, funded, or carried out by a fed- eral agency may potentially affect a listed species, that agency must consult with FWS to insure that the agency's activities are not likely to jeopardize the continued exis- tence of any endangered species or threatened species or result in the destruction or adverse modification of criti- cal habitat of such species. FWS is then required, under Section 7(b) of the ESA, to issue a biological opinion on whether the agency action is likely to jeopardize the con- tinued existence of the species. IfFWS concludes that the agency's actions are likely to jeopardize an endangered or threatened species, FWS is then required, under ESA ~ 7(b)(3)(A), to suggest "reasonable and prudent alterna- tives." Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HN4] Reasonable and prudent alternatives under the Endangered Species Act are defined as: alternative ac- tions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the federal agency's legal authority and jurisdiction, that is economically and technologically fea- sible, and that the agency director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. 50 C.FR. S 402.02. Under this definition, reasonable and prudent alternatives must: (I) be consistent with the purpose of the underlying ac- tion; (2) be consistent with the acting agency's author- ity; (3) be economically and technically feasible; and (4) avoid the likelihood of jeopardy or adverse modification. Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HN5] Once the Fish and Wildlife Service suggests rea- sonable and prudent alternatives, an acting agency is then required to consider the alternatives, and adopt a strategy fulfilling its ~ 7(a)(2) of the Endangered Species Act, 16 uses. S 1536, duties. 50 C.FR. S 402.14(h)(3). Only after a federal agency complies with ~ 7(a)(2) can that agency action go forward. Civil Procedure > Summary Judgment > Summary Judgment Standard [HN6] See Fed. R. Civ. P 56(c). Civil Procedure > Summary Judgment > Summary Judgment Standard [HN7] If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces genuine issue of material fact, then a court should not grant summary judgment. Further, where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, summary judgment for the moving party is proper. In applying this standard, a court must view the evidence and all factual inferences in the light most favorable to the non-moving party. Civil Procedure > Summary Judgment > Burdens of Production & Proof Civil Procedure > Summary Judgment > Summary Judgment Standard Civil Procedure > Summary Judgment > Supporting Papers & Affidavits (HN8] The non-moving party may not rest upon the mere allegations and denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in Fed. R. Civ. P 56 must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P 56(e). The mere existence of scintilla of a non-movant's position will be insufficient; there must be evidence on which the jury could reasonably find for the non-movant. The non-moving party must raise significant probative evidence sufficient for a jury to find in their favor. The plain language of Fed. R. Civ. P 56(c) mandates entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. The failure to present proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. Administrative Law> Judicial Review> Standards of Review> Standards Generally Civil Procedure > Summary Judgment > Summary Judgment Standard 364 F. Supp. 2d 1345, *; 2005 U.S. Dist. LEXIS 5981, **; 18 Fla. L. Weekly Fed. D 424 Page 3 [HN9] The summary judgment procedure is particularly appropriate in cases in which a court is asked to review a decision of a federal agency. Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HNIO] The Endangered Species Act, ~ 7(a)(2), 16 US es 9 1536, requires a federal agency to consult with the Fish and Wildlife Service (FWS) when any action au- thorized, funded, or carried out by the agency may affect a listed species. Once consultation is initiated FWS must: (I) review all relevant information; (2) evaluate the cur- rent status of the listed species; (3) evaluate the effects of the action and the cumulative effects on the listed species or critical habitat and (4) formulate a biological opinion as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of the listed species or result in the destruction or adverse modification of critical habitat. 50 C.FR. 9402.14(g)(l- 4). In evaluating the "effects of the action" FWS must consider the direct and indirect effects of an action that will be added to the environmental baseline. 50 e FR. 9 402.02. The environmental baseline includes the past and present activities of all federal actions in the action area. Id. Finally, the biological opinion is required to contain a "detailed discussion of the effects of the action on the listed species." 50 C.FR. 9402.14(h)(2). Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HNII] 50 CPR. 9402.02 defines an action as: all ac- tivities or programs of any kind authorized, funded, or carried out, in whole or in part, by federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air. Environmental Law > Natural Resources & Public Lands> Endangered Species Act (HNI2] In order to comply with the Endangered Species Act, an agency whose actions have been found to jeopar- dize an endangered or threatened species must implement a plan that avoids such jeopardy. Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HNI3] Mitigation measures under the Endangered Species Act must be reasonably specific, certain to oc- cur and subject to deadlines or other forcible obligations. Administrative Law> Judicial Review> Standards of Review> Standards Generally Environmental Law > Natural Resources & Public Lands> Endangered Species Act (HN14] Following the issuance of a biological opinion, the action agency determines whether, and in what man- ner to proceed with the action, in light of its Endangered Species Act (ESA) ~ 7 obligations and the biological opin- ion. The ultimate responsibility for determining whether * 7 of the ESA has been satisfied rests with the federal agency that was engaged in consultation. While consulta- tion may satisf'y the action agency's procedural obligations under the ESA, the action agency cannot rely solely on the consulting agency's recommendations to conclusively es- tablish its compliance with the substantive requirements of the ESA. A federal agency cannot abrogate its respon- sibility to ensure that its actions will not jeopardize a listed species; its decision to rely on the recommendations of the consulting agency must not have been arbitrary and capricious. Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HN15] The Endangered Species Act (ESA) requires each federal agency to insure that any action is not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of habitat of such species. 16 uses 91536(a)(1). An action results in jeopardy when it directly or indirectly reduces appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers or distribution of that species. 50 eFR. 9402.02. Adverse modification is a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. 50 eFR. 9402.02. Accordingly, under the ESA, adverse modification of critical habitat and jeopardy should be evaluated separately. Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HN16] The Endangered Species Act (ESA), ~ 7(a)(1), 16 uses 91536, requires each federal agency in consulta- tion with and with the assistance of the Fish and Wildlife Service (FWS) to adopt programs for the conservation of endangered species. Federal law defines "conservation" as: to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures pro- vided pursuant to this chapter are no longer necessary. 16 uses 9 1532(3). To fulfill the requirements ofESA * 7(a)(I) a federal agency must develop a program aimed at improving the viability of a species so that it eventu- ally may be de-listed. In fulfilling the requirements of ESA *7(a)(1), as long as an agency has implemented a program aimed at conservation, a court is not the proper place to adjudge and declare that defendants have vio- 364 F. Supp. 2d 1345, *; 2005 U.S. Dist. LEXIS 5981, **; 18 Fla. L. Weekly Fed. D 424 Page 4 lated the ESA as a matter of law by not implementing the processes listed by plaintiff. Environmental Law > Natural Resources & Public Lands> Endangered Species Act [HN17] Under the Endangered Species Act ~ 7(a)(1), an agency has a specific, rather than a generahzed duty to conserve species. COUNSEL: [**1] For Plaintiff: John F. Kostsyack, Esq., National Wildlife Federation, Washington, D.C.; David White, Esq., Gainesville, FL; Henry Lee Morgenstern, Esq., Summerland Key, FL. For Defendant:Mark Brown, Esq., Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C. JUDGES: K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE. OPINION BY: K. MICHAEL MOORE OPINION: [*1348J ORDER THIS CAUSE came before the Court upon Plaintiffs' Motion for Summary Judgment (DE #188) and Defendants' Cross Motion for Summary Judgment (DE #192). UPON CONSIDERATION of the Motions, the per- tinent portions of the record, having heard oral argument, and being otherwise fully advised in the premises, the Court enters the following Order. I. BACKGROUND A. Parties Plaintiffs, the National Wildlife Federation, Florida Wildlife Federation, and Defenders of Wildlife, brought this action pursuant to the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA ") on behalf of eight endangered and threatened species of the Florida Keys: the Key Largo cotton mouse, Key Deer, Key Largo woodrat, Lower Keys marsh rabbit, Schaus' swallowtail butterfly, silver rice rat, [**2) Stock Island tree snail and Key tree-cactus. nl Defendants are Michael Brown, in his official capac- ity as the Undersecretary of Emergency Preparedness and Response for the Department of Homeland Security, which includes the Federal Emergency Management Agency ("FEMA") and Gale Norton, in her official ca- pacity as Secretary of the United States Department of the Interior, which includes the Fish and Wildlife Service ("FWS"). nl With the exception of the Key tree-cactus and Schaus' swallowtail butterfly, all of the species are endemic to the Florida Keys. B. Procedural History Plaintiffs filed this action in 1990, seeking to compel FEMA to enter into ESA consultation with FWS concerning FEMA's administration of the National Flood Insurance Program ("NFIP") in the Florida Keys. Following a bench trial, on August 24, 1994, the under- signed directed FEMA to consult with FWS in accor- dance with its duties under 16 US e. 9 1536(a)(2)("ESA s7(a)(2)"). As a result of that consultation, FWS deter- mined [**3] in its 1997 Biological Opinion ("1997 BO"), , that FEMA's administration of the NFIP within the Florida Keys was jeopardizing the Key Deer, Key Largo cotton mouse, Key Largo woodrat, Key tree-cactus, Lower Keys marsh rabbit, Schaus' swallowtail butterfly, silver rice rat, Garber's Sponge and Stock Island tree snail. As required by 16 USe. 91536(b)(3)(A), FWS proposed reasonable and prudent alternatives ("RPAs") which it concluded would eliminate jeopardy to these species and allow FEMA to continue implementing the NFIP in the Florida Keys. FEMA adopted the 1997 RPAs recommended by FWS as its plan for avoiding jeopardy. Plaintiffs filed an Amended Complaint in 1997 (DE # 119), claiming that the BO and accompanying RPAs recom- mended by FWS, and implemented by FEMA, violated both the ESA and APA. Subsequently, in 2003, FWS and FEMA re-initiated the consultation process. n2 As a result of this re- initiation, FWS issued an amended BO ("2003 BO") re- garding FEMA's NFIP in the Florida Keys. Like [*1349J the 1997 BO, the 2003 BO concluded that FEMA's NFIP in the Florida Keys was jeopardizing the same species as those listed in the 1997 BO, with the exception of the Garber's Sponge [**4J (hereinafter "Listed Species"). As required by law, the 2003 BO included RPAs which FEMA again adopted ("2003 RPAs"). n3 Plaintiffs then filed a Second Amended Complaint (DE #187) in 2003 challenging the sufficiency of the 2003 BO and the 2003 RPAs. The Second Amended Complaint is currently be- fore the Court and the subject of the parties' Cross- Motions for Summary Judgement. n2 The 1997 BO contained a re-initiation clause which required FEMA to re-initiate consultation if Monroe County did not complete a habitat recov- ery plan within four years. FWS A.R. #20 at 5.5. Because Monroe County failed to complete a plan, 364 F. Supp. 2d 1345, *1349; 2005 U.S. Dist. LEXIS 5981, **4; 18 Fla. L. Weekly Fed. D 424 Page 5 FEMA re-initiated consultation as required. n3 Plaintiffs contend, and Defendants do not dispute, that the 2003 RPAs are materially identi- cal to the 1997 RPAs. Def. Mot. For Summ. J. at I. (FWS reaffirmed the RPA, and FEMA has elected to continue implementing the RPA). C. Plaintiffs' Second Amended Complaint Count I of Plaintiffs' Second Amended Complaint al- leges FWS and FEMA violated ESA f 7(a)(2) [**5] and the APA's prohibition against actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, 5 USe. f 706(2)(A) ("APA S 706 (2)(A)"), by failing to ensure against jeopardy. Count II alleges violations of the agencies' ESA duty to en- sure against adverse modification of critical habitat ESA f7(a)(2). Count III alleges a violation of FEMA's duty to develop and implement a conservation program for the Listed Species under 16 USe. fI536(a)(l) ("ESA S 7(a)(1)") andAPA f706 (2)(A). II. STATUTORY FRAMEWORK A. Administrative Procedure Act Review of the Defendants' actions in this case is gov- erned by the APA. American Rivers v. United States Army Corps of Engineers, 271 FSupp. 2d 230, 250 (D.D.e. 2003)([HNI] under the ESA, agency decisions are re- viewed under the APA). (HN2] Under the APA, a court shall hold unlawful and set aside agency actions, findings or conclusions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 USe. f 706(2)(A). In reviewing agency actions, the court must engage in a "thorough, [**6] probing, in-depth review," Citizens to Preserve Overton Park v. Volpe, 401 US 402, 415, 28 L. Ed. 2d 136,91 S Ct. 814 (1971), to determine whether the agency has "examined the relevant data and articulated a satisfactory explanation for its actions. . . ." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 US 29, 43, 77 L. Ed. 2d 443, 103 S Ct. 2856 (1983). In this review, the court con- siders whether "the agency acted within the scope of its legal authority, whether the agency has explained its de- cision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors." Fund for Animals v. Babbitt, 903 FSupp. 96, 105 (D.e. Cir. 1995). Under this standard, an action will be set aside if the agency has relied on factors which Congress had not intended it to consider, failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it can not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass'n., 463 US at 43. B. Endangered [**7] Species Act The ESA is "the most comprehensive legislation for the preservation of endangered [*1350] species ever en- acted by any nation." TVA v. Hill, 437 US 153, 180, 57 L. Ed. 2d 117,98 S Ct. 2279 (1978). Its stated purpose is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conser- vation of such endangered and threatened species. . . ." 16 USe. f 1531 (b). "The plain intent of Congress in en- acting this statute was to halt and reverse the trend toward species extinction, whatever the cost." TVA, 437 US at 184. In particular, the ESA directs federal agencies "to use . . . all methods and procedures which are necessary to preserve the endangered species." Defenders of Wildlife v. Babbitt, 130 F Supp. 2d 121, 125 (D.C. Cir. 2001) (citations omitted). [HN3] Section 7(a)(l) of the ESA requires all federal agencies, in consultation with FWS, to use their author- ity to further the goals of the ESA by carrying out pro- grams for the conservation of endangered and threatened species. Under ESA f 7(a)(2), when any action autho- rized, funded, or carried [**8] out by a federal agency may potentially affect a listed species, that agency must consult with FWS to insure that the agency's activities are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." FWS is then required, under Section 7(b) of the ESA, to issue a biological opinion on whether the agency action is likely to jeopardize the con- tinued existence of the species. IfFWS concludes that the agency's actions are likely to jeopardize an endangered or threatened species, FWS is then required, under ESA f 7(b)(3)(A), to suggest "reasonable and prudent alter- natives." [HN4] Reasonable and prudent alternatives are defined as: alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented con- sistent with the scope of the Federal agency's legal authority and jurisdiction, that is eco- nomically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued ex- istence of listed species or resulting [**9] 364 F. Supp. 2d 1345, *1350; 2005 U.S. Dist. LEXIS 5981, **9; 18 Fla. L. Weekly Fed. D 424 Page 6 in the destruction or adverse modification of critical habitat. 50 C.FR. S 402.02. Under this definition, reasonable and prudent alternatives must: (1) be consistent with the pur- pose of the underlying action; (2) be consistent with the acting agency's authority; (3) be economically and tech- nically feasible; and (4) avoid the likelihood of jeopardy or adverse modification. Greenpeace v. National Marine Fisheries Serv., 55 F Supp. 2d 1248, 1264 (W.D. Wash. 1999). (HN5] Once FWS suggests reasonable and prudent alternatives, the acting agency is then required to con- sider the alternatives, and adopt a strategy fulfilling its Section 7(a)(2) duties. 50 C.FR. S 402. 14(h)(3); Rancho Viejo, LLC v. Norton, 355 US App. D.C. 303, 323 F3d 1062,1064 (D.C. Cir. 2003). Only after the federal agency complies with Section 7(a)(2) can that agency action go forward. Pacific Coast Federation of Fisherman's Assoc. v. U. S Bureau of Reclamation, 138 F Supp. 2d 1228, 1242 (N.D. Cat. 2001)(citations omitted). III. SUMMARY JUDGEMENT STANDARD Under Rule 56(c) of the Federal Rules of Civil Procedure [**10) : [HN6] The judgment sought shall be ren- dered forthwith if the pleadings, depositions, [*1351) answers to interrogatories and ad- missions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 US 242, 91 L. Ed. 2d 202, 106 S Ct. 2505 (1986). (HN7] "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces genuine issue of material fact, then the court should not grant summary judgment." Jeffery v. Sarasota White Sox, Inc., 64 F3d 590, 593 (11th Cir. 1995). Further, "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 587, 89 L. Ed. 2d 538, 106 S Ct. 1348 (1986). In applying this standard, the Court must view the evidence and all factual inferences in the light most favorable to the non-moving party. Id. However, [HN8] the non-moving [**II) party may not "rest upon the mere allegations and denials of the ad- verse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of scintilla of the (non-movant's] position will be insuf- ficient; there must be evidence on which the jury could reasonably find for the (non-movant]." Anderson, 477 US at 252. The non-moving party must raise significant probative evidence sufficient for a jury to find in their fa- vor. See LaChance v. Duffy's Draft House, Inc., 146 F3d 832, 835 (11th Cir. 1998). In fact, "the plain language of Rule 56(c) mandates entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 US 317, 322,91 L. Ed. 2d 265,106 S Ct. 2548 (1986). Thefailure to present proof concerning an essential element of the non-moving party's case necessarily renders [**12) all other facts immaterial and requires the court to grant the motion for summary judgment. Id. Finally, when applying the APA to review administra- tive actions under the ESA, the court resolves the issues based on the agency's administrative record, a trial is gen- erally unnecessary, and summary judgment is often appro- priate. Loggerhead Turtle v. Cty. Council of Valusa Cty., Fla., 120 F Supp 2d 1005, 1011 (MD. Fla. 2000)(citing Florida Fruit & Vegetable Asso. v. Brock, 771 F2d 1455, 1459 (11th Cir. 1985), cert. denied, 475 US 1112,89 L. Ed. 2d 921, 106 S Ct. 1524 (l986)([HN9] the summary judgment procedure is particularly appropriate in cases in which the court is asked to review. . . a decision of a federal agency). IV. AGENCY ACTION Plaintiffs challenge three agency actions: (I) FWS's preparation of the 2003 80; (2) FWS's recommenda- tion of the 2003 RPAs; and (3) FEMA's adoption of the 2003 RPAs. n4 Defendants do not dispute that these are agency actions subject to review [*1352) under the APA. Accordingly, this Court must determine whether the 2003 80 and the 2003 RPAs are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the l~w. [**131 n4 While Plaintiffs also challenge FEMA's fail- ure to implement any conservation plan for the Listed Species, this is not challenging an agency action, per se, as it challenges the agency's failure to act. 364 F. Supp. 2d 1345, *1352; 2005 U.S. Dist. LEXIS 5981, **13; 18 Fla. L. Weekly Fed. D 424 Page 7 A 8iological Opinion(s) In the 1997 80 FWS concluded that FEMA's NFIP as administered in the Florida Keys, was jeopardizing th~ existence of the Listed Species and adversely modi tying the habitat of the silver rice rat. FWS AR. #20 at 5.1. The 1997 80 identified habitat loss and fragmentation as the primary factors jeopardizing the Listed Species. Id. With the exception of the Garber's Sponge, the 2003 80 came to these same conclusions. FWS A.R. #88 at 55. 8. Reasonable and Prudent Alternatives The 1997 RPAs recommend that FEMA, FWS and Monroe County reconcile digital data produced by FWS concerning suitable and unsuitable species habi- tat with base mapping contained in Monroe County's Geographical Information System. Def. Mem. at 8; FWS AR. #88 at 57. In accordance with this process, a Monroe County [**14) staff person assists permit applicants in reviewing a list of real estate lot numbers corresponding to areas that FWS has identified as outside the habitat of the covered species. Id. If the particular lot is not on the list, and therefore not within suitable habitat for the covered species, the permit application is not referred to FWS for coordination. Id. On the other hand, if the lot is on the list, and therefore within the habitat of the covered species, the permit applicant is referred to FWS to obtain technical assistance. Id. Once the application is referred, FWS then determines whether the project is "likely to adversely affect" the Listed Species or critical habitat. Id. If FWS determines that the project may adversely affect a covered species or critical habitat, FWS works with the participating com- munity and the landowner to ensure compliance with ESA se~tion 7 and section 10. Id. A copy of a section 10 per- mIt or the section 7 consultation outcome is placed in the community's building permit file. Id. If the project may adversely affect a listed plant, FWS would provide rec- ommendations on avoiding or minimizing those effects. Id. V. [**151 DISCUSSION A Count I Count I of the Second Amended Complaint alleges that the 2003 80 violates ESA 97(a)(2) and APA 9 706 (2)(A) because it fails to consider FEMA's NFIP after adoption of the RPAs in 1997. Count I also alleges that ~WS's recommendation, and FEMA's subsequent adop- tIon of the 2003 RPAs was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law because the 2003 RPAs fail to remove jeopardy to the Listed Species. Accordingly, the Court will consider the sufficiency of both the 2003 80 and the 2003 RPAs. Additionally, this Court will consider whether FEMA's adoption of the RPAs as its plan to remove jeopardy ("the Plan") was reasonable. I. Did FWS adequately consider all relevant factors in the 2003 80? Plaintiffs contend that the 2003 80 violates ESA p(a)(2) and is otherwise arbitrary and capricious be- cause it fails to consider the NFIP after the adoption of the 1997 RPAs. PI. Mem. at 22. Specifically, Plaintiffs argue that the baseline [*1353] analysis section of the 2003 80 should have included an evaluation of FEMA's NFIP after adopting the 1997 RPAs because the NFIP program, as augmented by the 1997 RPAs, constituted federal [**16) action. Id. Defendants disagree, arguing that "a biological opinion typically does not discuss how RPA[s] affect the environmental baseline, because such analysis is included in future biological opinions . . . ." Def. Mem. at 22; Def. Reply at 11. The Court will first consider whether FWS should have evaluated the NFIP as augmented by the 1997 RPAs in the 2003 80. If the Court finds that this information should have been included in the 2003 80, the Court will then consider whether the 2003 80 contains this analysis. a. Did FWS have to evaluate FEMA's NFIP, as aug- mented by the 1997 RPAs, in the 2003 80? As discussed supra, [HNlO] ESA 9 7(a)(2) requires a federal agency to consult with FWS when any action au- thorized, funded, or carried out by the agency may affect a listed species. Once consultation is initiated FWS must: (1) review all relevant information; (2) eval- uate the current status of the listed species; (3) evaluate the effects of the action and the cumulative effects on the listed species or critical habitat and (4) formulate a biologi- cal opinion as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence [**17) of the listed species or result in the destruction or adverse modification of critical habitat. 50 C.FR. 9402.14(g)(J-4). In evaluating the "effects of the action" FWS must consider the "direct and indirect effects of an action. . . that will be added to the environ- mental baseline." 50 c.F. R. 9402.02. The environmental baseline includes "the past and present activities of all f~dera~ . . . actions. . . in the action area." Id. Finally, the bIOlogIcal opinion is required to contain a "detailed dis- cussion of the effects of the action on the listed species." 50 C.F.R. 9402. 14(h)(2). Accordingly, the Court finds that an analysis of the effect of FEMA's adoption of the 1997 364 F. Supp. 2d 1345, *1353; 2005 U.S. Dist. LEXIS 5981, **17; 18 Fla. L. Weekly Fed. D 424 Page 8 RPAs on the Listed Species should have been included in the 2003 80. See Defenders of Wildlife v. Babbitt, 130 F Supp. 2d 121,126-8 (D.D.C 2001). First, FEMA's adoption of the 1997 RPAs as its Plan to remove jeopardy to the Listed Species was a decision with legal effect and constituted a "federal action" for purposes of the sufficiency of the 2003 80 under the requirements of the ESA. n5 See Greenpeace v. Nat'l Marine Fisheries Serv., 237 F Supp. 2d 1181, 1200 (WD. Wash. 2002). [**18) As a result, the effect of implementing the 1997 RPAs on the Listed Species constituted "past or present federal action" and should have been included in the base- line analysis of the 200380. See 50 CFR. S402.02. n5 [HNI I] 50 C.FR. S402.02 defines an action as: all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve Listed Species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air... (emphasis added) Second, when reviewing agency decisions under the APA, this Court is required to consider whether the agency [*1354) considered all relevant information. See supra Il(A). When FWS [**19) prepared the 2003 80, infor- mation regarding whether the 1997 RPAs successfully removed jeopardy to the Listed Species was available. Such information was relevant in light of FWS's deci- sion to recommend the same RPAs in 2003 that it had recommended five years earlier. n6 Accordingly, even assuming Defendants are correct that the regulations dis- cussed above did not require FWS to evaluate the effect of the 1997 RPAs on the Listed Species in the 2003 80, this information was clearly relevant and therefore should have been included. Id. n6 The Court notes that generally, when rec- ommending reasonable and prudent alternatives, FWS does not have information available regarding whether the alternatives will actually be successful in removing jeopardy. This is not the case here, as FWS recommended the same RPAs that were already in place. b. Does the 2003 80 adequately evaluate FEMA's NFIP in the Florida Keys with the RPA in place? A review ofthe 2003 80 reveals that there is almost no discussion of the effect [**20) of the NFIP on the Listed Species after adoption of the RPAs in 1997. While there is a discussion of the population trends of the Key Deer n7, the 200380 contains no discussion of the population trends of the other Listed Species. n8 In addition, while habitat loss and fragmentation are the undisputed causes of jeopardy, there is no discussion of how the adoption of the 1997 RPAs affected habitat loss and fragmentation. n7 See Giford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F3d 1059, 1067 (9th Cir. 2004)(focusing on actual species count is an overly narrow interpretation of what is required under the jeopardy prong). n8 Furthermore, to the extent that FWS con- tends that the 2003 80's discussion of the Key Deer's population trend might somehow fulfill their duty to evaluate past federal action, or validate the 2003 RPAs, they are directly contradicted by the 2003 80. First, although Defendants are correct in asserting that the Key Deer's estimated population has increased from 250-300 to 700-800, the record is not clear about when this population increase oc- curred. " FWS A.R. #88 at 9 ("In 1970 the Key Deer population was estimated at 250-300 individuals... the population has most recently been estimated at 700-800 individuals"). More importantly, the 2003 80 notes that there has been a contraction in the range of the Key Deer, and as a result, "this contrac- tion in range has decreased the overall viability of the Key Deer population." Id. Accordingly, to the extent that the 2003 80 discusses the effect of the NFIP after adoption of the 1997 RPAs, this discus- sion only highlights the ineffectiveness ofthe 1997 RPAs and illustrates how evaluating the effects of the 1997 RPAs would have compelled FWS to rec- ommend different RPAs in 2003. [**21) The Court therefore finds that the 2003 80 failed to evaluate whether FEMA's NFIP was continuing to jeopar- dize the Listed Species after implementation of the 1997 RPAs. Accordingly, the 2003 80 violates the ESA and is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law because it plainly failed to consider relevant information. See Motor Vehicle lvlfrs. 364 F. Supp. 2d 1345, *1354; 2005 U.S. Dist. LEXIS 5981, **21; 18 Fla. L. Weekly Fed. D 424 Page 9 Ass'n., 463 U.S at 43. As a result, Plaintiffs' Motion for Summary Judgment is Granted on Count I with respect to FWS's preparation of the 2003 BO. 2. Do the 2003 RPAs fail to protect against jeopardy? The parties do not dispute that [HNI2] in order to comply with the ESA, an agency whose actions have been found to jeopardize (*1355) an endangered or threat- ened species must implement a plan that avoids such jeopardy. PI. Mem. at 10; Def. Mem. at 13; Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F3d 515,523 (9th Cir. 1988). Here, FWS by recommending the 2003 RPAs, and FEMA by implementing the 2003 RPAs as their Plan to remove jeopardy, have necessarily concluded that the 2003 RPAs satisfY this no jeopardy standard. Thus, the Court must determine, (**22) under the "arbitrary and capricious" standard of review, whether the 2003 RPAS are likely to remove jeopardy to the Listed Species. Greenpeace v. National Marine Fisheries Serv., 55 F Supp. 2d 1248, 1267 (WD. Wash. 1999)("under the arbitrary and ca~ri- cious standard of review, the government must establish that its reasonable and prudent alternatives fulfill their purpose of avoiding the likelihood of jeopardizing the continued existence of the listed species. . .")(internal quotation marks omitted). Plaintiffs allege that the 2003 RPAs fail to meet the requirements of the ESA and are therefore arbitrary, capri- cious, an abuse of discretion or otherwise not in accor- dance with the law because they illegally: (I) rely on voluntary measures; and (2) do not protect against habi- tat loss and fragmentation or otherwise account for the cumulative effects of the permitted projects within the suitable habitat of the Listed Species. PI. Mem. at 18. a. Do the 2003 RPAs illegally rely on voluntary mea- sures? (HN13] Mitigation measures under the ESA must be reasonably specific, certain to occur and subject to dead- lines or other forcible obligations. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 254 F Supp. 2d 1196 (D. Or. 2003); (**23) American Rivers, 271 F Supp. 2d 230,253 (D.D.C. 2003)(no jeopardy finding under the ESA must have a reasonable certainty of occurring, not just a reason- able chance)(emphasis in original). Plaintiffs allege that the 2003 RPAs violate the ESA because they illegally rely on voluntary measures. Defendants disagree on two grounds. First, Defendants argue that "FEMA must reini- tiate consultation if any unauthorized taking of a listed species occurs or if new information reveals additional effects not considered in the RPA." FWS A.R. #20 at 5.5; FWS Supp. A.R. #88 at 60; Def. Mem. at 20. Second, Defendants contend that the RPA does not illegally rely on voluntary measures because "if the County fails to abide by its agreement with FEMA to continue the screening process, FEMA may treat any such failure as a viola- tion of the NFIP's community eligibility requirements and commence any appropriate probation or suspension procedures." FWS A.R. #37 at 5.3; FWS Supp. A.R. 88 at 57-58; Def. Mem. at 20. The Court finds both of Defendants' arguments unper- suasive. First, the re-initiation requirement does nothing to compel the landowners to adhere to recommendations made by FWS. (**24) Indeed, the record indicates that some landowners entirely disregarded the 1997 RPAs. n9 Also the re-initiation clause does not provide for restora- tion ~f habitats that are destroyed nor does it provide for any consequences to landowners that destroy habitat without consulting FWS. Furthermore, FEMA did not re- initiate consultation when landowners (*1356) destroyed habitat without consulting with FWS. Id. Accordingly, the record reveals that this re-initiation requirement does not ensure that the procedures proscribed in the RPAs are rea- sonably specific, certain to occur and subject to deadlines or other forcible obligations. nlO n9 See PI. Ex. 4 at Pt. II (eight projects de- stroyed habitat without FWS review; in no case did FEMA re-initiate consultation with FWS). nlO FEMA has not re-initiated consultation even though unauthorized projects have gone for- ward which resulted in destruction to suitable habi- tat. Id. Defendants' second argument, that the RPA does not rely on voluntary measures because FEMA (**25) "may treat the County's failure to abide by the screening process as a violation of the NFIP community eligibility require- ments" is disingenuous at best. Id. (emphasis added). On its face, this provision is voluntary. Thus, it does nothing to ensure that either the county or the landowners will comply with the RPAs' procedures. In addition, the record repeatedly illustrates the uncer- tainty of whether the procedures proscribed in the 1997 RPAs will be followed. For example, the 2003 RPAs do not require FWS to make recommendations to projects within the suitable habitat of the Listed Species, rather they may do so at their own discretion. Indeed, the ad- ministrative record indicates that only a small percentage of applications within suitable habitat actually received conservation recommendations from FWS. See supra, IV(2)(b). In some cases where recommendations were made, they were not adopted by the landowners. FWS. Supp. A.R. #52. Finally, Defendants admit that the "RPA presumes that individual developers will comply with rec- 364 F. Supp. 2d 1345, *1356; 2005 U.S. Dist. LEXIS 5981, **25; 18 Fla. L. Weekly Fed. D 424 Page 10 ommendations provided by FWS through the permit co- ordination process." Def. Proposed Findings of Fact and Conclusions of Law at P 37(emphasis [**26) added). Accordingly, the Court finds that the 2003 RPAs illegally rely on voluntary conservation measures. b. Do the 2003 RPAs account for the cumulative ef- fects of the proposed projects and protect against habitat loss and fragmentation? Plaintiffs maintain that the 2003 RPAs are insufficient because they provide for a review of proposed projects on a project by project basis and therefore do not take into account the cumulative effect of the thousands of small- scale projects permitted to go forward in the habitat of the Listed Species. PI. Reply at 5. Defendants again dis- agree, arguing that "jeopardy is avoided-both on a project specific and on a programmatic basis-because the RPA enables FWS to provide technical assistance concerning appropriate measures to avoid and minimize impacts to a Listed Species." Def. Mem. at 16. Upon a review of the administrative record, the Court again finds Defendants' arguments unpersuasive. The record shows that between July of 1998 and October of2002, approximately 2,557 projects were iden- tified as being located within the suitable habitat of the Listed Species. PI. Mem. at 13; PI. Ex. 4.; FWS Supp. A.R. #89 and #89a. Of the 2,557 projects [**27) lo- cated within the suitable habitat of the Listed Species, 2,034 were reviewed by FWS pursuant to the RPAs' pro- cedures. nil Id. From these 2,034 project reviews, FWS authorized 2,022 to proceed and delayed 12 of them. Id. Of the 2,022 projects authorized to proceed, FWS de- termined that 2,006 of them were not [*1357] likely to adversely affect Listed Species or critical habitat. n 12 Id. Of the remaining 16 projects authorized to go for- ward, FWS concluded that: five of them did not affect a Listed Species; three of them were not FEMA insured projects; and eight of them could proceed after imple- menting changes aimed at protecting the Listed Species. Id. FWS did not find that any of the 2,022 projects per- mitted to go forward in the suitable habitat of the Listed Species would cause jeopardy. n 13 nil The other 523 projects were section 7 con- sultations on U.S. Army Corps of Engineers permit applications and therefore not reviewable by FWS. nl2 There does not appear to be any record of FWS's review of these 2,006 projects. nl3 Of the 12 delayed projects, nine of them were FEMA insured projects affecting Listed Species which proceeded after obtaining incidental take permits. FWS Supp. A.R. #89 and #89a. Two ofthem affected un-listed species and the final one was not a FEMA insured project. Id. Accordingly, in none of these projects did the RPAs protect the Listed Species because, by definition, incidental take permits allow for a "taking" of a listed species. [**28) Defendants' contend that the amount of projects per- mitted to go forward within the suitable habitat does not show that the 2003 RPAs fail to protect the Listed Species from jeopardy because the majority of the projects were insignificant. Def. Reply at 6. Again, the record does not support Defendants' argument. For example, of the 2,022 projects allowed to go forward in the suitable habitat, 101 of them were fences on Big Pine and No Name Keys. FWS Supp. A.R. 89. These are the very locations where the Key Deer's survival is at risk, due to fencing (1997 BO at 3.22)(emphasis added). Similarly, FWS found that a IS-unit housing project was not likely to adversely af- fect the Listed Species even though the project site was used by the Key Deer and considered by FWS to be "en- vironmentally sensitive." FWS Supp. A.R. #65 (8/10/01 and 8/12/99 letters). Furthermore, Plaintiffs are correct in arguing that the 2003 RPAs illegally fail to consider the cumulative effect of the permitted projects. Both of the biological opin- ions conclude that developments in the habitat of the Listed Species "taken together, will result in jeopardy." Def. Reply at 8. However, the 2003 RPAs do not address this [**29) cause of jeopardy. Rather, by providing for a project by project review, it is unlikely that FWS will conclude under the 2003 RPAs that a single project will cause jeopardy. Indeed, as discussed above, the record reveals that FWS did not prohibit a single project from proceeding based on the projects possible affect on the suitable habitat of the Listed Species. Accordingly, this piecemeal review is inconsistent with the conclusions of FWS that habitat loss and fragmentation "taken together" cause jeopardy to the Listed Species. Finally, both the 1997 BO and the 2003 BO list many secondary effects of development in the Florida Keys as threats to the Listed Species. For example, increased traf- fic, illegal dumping, mortality from pets (especially cat predation), loss of fresh water (fertilizers degrading wa- ter quality), exotic fire ants, exotic vegetation, pesticide use and man-induced fires are mentioned as secondary threats. FWS A.R. #20 3.21-4.17. None of these effects are accounted for in the 2003 RPAs. c. The 2003 RPAs fail to protect against jeopardy. In summation, the record reveals that the 1997 RPAs illegally relied on voluntary measures and actually af- 364 F. Supp. 2d 1345, *1357; 2005 U.S. Dist. LEXIS 5981, **29; 18 Fla. L. Weekly Fed. D 424 Page II fected only eight [*1358J projects, [**30J out of the more than two thousand permitted to go forward within the suitable habitat of the Listed Species. In addition, the 1997 RPAs do not account for the cumulative or secondary effects of any of the projects. For these reasons, the Court finds that the 2003 RPAs, which merely re-adopt the 1997 RPAs, run counter to the evidence before FWS at the time the 2003 BO was issued and the 2003 RPAs proposed, do not protect against jeopardy, and are therefore invalid under the APA. nl4 See Motor Vehicle Mfrs. Ass'n., 463 US at 43. Accordingly, Plaintiffs' Motion for Summary Judgment on Count I is Granted with respect to FWS's recommendation of the 2003 RPAs. nl4 FWS's own expert, in 1999, admitted that "the RPA doesn't do enough." FEMA Supp. A.R. #31. 3. Was FEMA's adoption of the 2003 RPAs arbitrary, capricious, an abuse of discretion or otherwise not in ac- cordance with the law? (HNI4] Following the issuance ofa biological opin- ion, the action agency determines whether, and in what manner to proceed [**3IJ with the action, in light of its ESA section 7 obligations and the biological opinion. The ultimate responsibility for determining whether section 7 of the ESA has been satisfied rests with the federal agency that was engaged in consultation. NRDC v. United States Army Corps of Eng'rs, 2001 US Dist. LEXlS 21029, Case No. 99-2899-CIV2001 WL 1491580 at *6 (SD. Fla. June 28,2001). While consultation may satisfy the action agency's procedural obligations under the ESA, the action agency cannot rely solely on the consulting agency's rec- ommendations to conclusively establish its compliance with the substantive requirements of the ESA. Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F2d 1410, 1415 (9th Cir. 1990)(citations omit- ted)(emphasis added). In other words, a federal agency cannot abrogate its responsibility to ensure that its ac- tions will not jeopardize a listed species; its decision to rely on the recommendations of the consulting agency must not have been arbitrary and capricious. Plaintiffs maintain that FEMA provided "no analysis to support the adoption ofthe RPA, and instead relied en- tirely on FWS's analysis." PI. Proposed [**321 Findings of Fact and Concl. of Law. at Ps 28-29. As a result, Plaintiffs contend that FEMA is liable under the ESA and the APA for failing to consider relevant factors and otherwise acting arbitrarily. Id. FEMA, disputing liability under the ESA and the APA, argues that "the fact that FEMA is implementing the RPA recommended by FWS is evidence that FEMA is not violating the ESA or oth- erwise acting in an arbitrary or capricious fashion." Def. Mem. at 19. Accordingly, it appears that FEMA concedes that it engaged in no independent analysis of the suffi- ciency of the 2003 RPAs, and maintains that its reliance on FWS's recommendations was appropriate under the ESA and the APA. While the Court agrees with FEMA that it can rely on the recommendations of FWS, the Court does not agree with FEMA's contention that it can do so without en- gaging in any independent analysis. Under the APA, an agency must consider relevant information before acting. Here, FEMA has clearly passed all of its substantive obli- gations under the ESA to [*1359J FWS. This it cannot do. As a result, FEMA's admitted failure to engage in any independent consideration of the sufficiency of the 2003 RPAs renders its actions [**331 arbitrary and capricious. Accordingly, Plaintiffs' Motion for Summary Judgement on Count I is granted with respect to FEMA's adoption of the 2003 RPAs. B. Count II Plaintiffs allege, in Count II of their Complaint, that the 2003 RPAs do not adequately protect against adverse modification of the critical habitat of the silver rice rat. Second Amended Compl. P45-9. (HNI5] The ESA re- quires each federal agency to "insure that any action. . . is not likely to jeopardize the continued existence of any endangered species. . . or result in the destruction or ad- verse modification of habitat of such species." 16 US C. 91536(a)(I). An action results in jeopardy when it "di- rectly or indirectly. . . reduces appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers or distribu- tion of that species." 50 C.FR. 9402.02. Adverse modifi- cation, on the other hand, is "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. . ." rd. Accordingly, under the ESA, adverse modification of critical [**34J habitat and jeopardy should be evaluated separately. Greenpeace, 55 F Supp. 2d at 1265 (explain- ing that, although there is considerable overlap between adverse modification and jeopardy, the ESA establishes two separate standards to be considered). Plaintiffs claim that FWS's failure to evaluate whether FEMA's NFIP was adversely modifying the critical habi- tat of the silver rice rat separately from its analysis of whether the NFIP was causing jeopardy in the 2003 BO violates the ESA. PI. Mem at 24. Therefore, Plaintiffs maintain that the 2003 RPAs fail to protect against adverse modification of the critical habitat of the silver rice rat. Id. Defendants, on the other hand, contend that the 2003 RPAs adequately protect against adverse modification of 364 F. Supp. 2d 1345, *1359; 2005 U.S. Dist. LEXIS 5981, **34; 18 Fla. L. Weekly Fed. D 424 Page 12 the critical habitat because the 2003 RPAs "consultation area includes all silver rice rat critical habitat" that is sub- ject to NFIP-sponsored flood insurance. Def. Reply at 13. Defendants also argue that a single RPA sufficiently pro- tects against adverse modification of critical habitat and jeopardy because habitat modification is the stated cause of jeopardy. Def. Mem. at 25. While Defendants' arguments are reasonable, [**35J they cannot justifY FWS's failure to address the suffi- ciency of the 1997 and 2003 RPAs in protecting against adverse modification of the critical habitat of the silver rice rat after the fact. Instead, to comply with the require- ments of the ESA, FWS should have addressed the effect of the 1997 RPAs on the critical habitat of the silver rice rat in the 2003 80, and provided an explanation for why a single RPA in 2003 was sufficient to remedy adverse modification and jeopardy. Greenpeace, 55 F Supp. 2d at 1265 (if a federal agency addresses adverse modifica- tion and jeopardy in a single RPA, it should provide an explanation for why it is doing so). FWS's failure to do so renders its actions its actions arbitrary and capricious. See Motor Vehicle Mfrs. Ass'n., 463 US. at 43. Accordingly, Plaintiff's Motion for Summary Judgement on Count II is GRANTED [*1360) with respect to FWS. n 15 nl5 In addition, as discussed above, FEMA's adoption ofthe 2003 RPAs was arbitrary and capri- cious. See supra V(A)(3). Therefore, Plaintiffs' Motion for Summary Judgement on Count II is GRANTED with respect to FEMA. [**36) C. Count III In Count III of their Complaint, Plaintiffs claim that FEMA has failed to develop a conservation program for the Listed Species. (HNI6] ESA J 7(a)(l) requires each federal agency "in consultation with and with the assis- tance of (FWS] to adopt programs for the conservation of endangered species." Sierra Club v. Glickman, 156 F3d 606, 618 (5th Cir. 1998). Federal law defines "con- servation" as: "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." 16 USC.A. J 1532(3). Therefore, to fulfill the requirements of ESA J 7(a)(J) a federal agency must develop a program aimed at improving the viability of a species so that it eventually may be de-listed. In ful- filling the requirements of ESA F(a)(J), as long as an agency has implemented a program aimed at conserva- tion, the "court is not the proper place to adjudge and declare that defendants have violated the ESA as a mat- ter of law by not implementing the processes listed by (plaintiff]." Defenders of Wildlife, 130F Supp. 2dat 135. [**371 FEMA argues that it has fulfilled its ESA J 7 (a) (1) duty by continuing to implement provisions in its Community Rating System ("CRS") to promote the implementation of habitat conservation planning. nl6 Def. Mem. at 29. Under this program FEMA provides incentive credits to communities that develop and implement habitat conser- vation plans to benefit threatened and endangered species. Id. FEMA admits that Monroe County is currently ineli- gible to receive credits. Id. Nevertheless, FEMA contends that ESA J 7 (a)(J) is appropriately viewed within the over- all context of the NFIP nationwide, and not solely within Monroe County. Id. In support of this argument Defendant relies on Ore. Natural Res. Council Fund v. United States Army Corps of Eng'rs, 2003 US Dist. LEXlS 25912, Case No. 00-431-JO 2003 WL 117999 (D. Or. January 2, 2003)("ONRC"). n 16 FEMA also contends that it has fulfilled its ESA J 7(a)(l) duties by appointing a staff person to attend inter-agency meetings concerning a south Florida multi-species recovery plan. While it seems appropriate that FEMA send a staff person to these meetings given the fact that their NFIP is a main cause of the decline of the Listed Species, FEMA does not point to any evidence of how attendance at these meetings might somehow satisfY its ESA J 7(a)(l) duty. [**38J In ONRC, the plaintiff challenged defendant's con- servation program for the coho salmon. Id. In dismissing plaintiff's claim, the court held that plaintiff had not stated a cause of action under ESA J 7(a)(l) because they alleged that defendant's conservation plan was insufficient, not that defendant had failed to develop a plan. Id. The court noted that "if ONRC's claim is that the Corps has failed to formulate its conservation program in accordance with ESA J 7(a)(l), it may file an amended complaint within ten days." nl7 2003 US Dist. LEXlS 25912, [WL] at *5(emphasis added). As a result, FEMA has improperly relied on ONRCbecause Plaintiffs' [*1361) claim in this case specifically alleges that FEMA has failed to "iden- tifY or implement any program for conserving the Covered Species." PI. Compl. at P55 (emphasis added). Thus, the Court must determine whether the CRS program satisfies FEMA's ESA J 7(a)(l) duty to develop a conservation program concerning the Listed Species. nl7 Furthermore, contrary to FEMA's con- 364 F. Supp. 2d 1345, *1361; 2005 U.S. Dist. LEXIS 5981, **38; 18 Fla. L. Weekly Fed. D 424 Page I 3 tentions, neither ONRC, nor any other case cited by Defendants stands for the proposition that an agency can rely on a national conservation pro- gram that is not aimed at, and has no effect on, the conservation of the particular Listed Species at issue in the consultation. [**39) (HN17] Under ESA S 7(a)(l) an agency has a spe- cific, rather than a generalized duty to conserve species. Sierra Club v. Glickman, 156 F3d 606, 618 (5th Cir. 1998); Defenders of Wildlife v. Sec'y, United States DOl, 354 F Supp. 2d 1156, 2005 WL 221253 (D. Or. 2005). Currently, as discussed supra, Monroe County is prohib- ited from participating in the CRS program because of noncompliance with the program's standards. As a result, if this Court were to adopt FEMA's argument it would mean that a federal agency could fulfill its ESA S 7(a)(J) conservation duty by implementing a voluntary national program that has no effect on the specific species affected by the agency's actions. Such a holding would be incon- sistent with the plain reading and intent of ESA 7(a)(J). nl8 nl8 As discussed above, section 7(a)(J) of the ESA directs agencies to develop conservation plans aimed at de-listing the particular species. Allowing a federal agency to satisty this requirement with- out having any affect on the specific species would undermine the intent of this statute. [**40J Accordingly, the Court finds that FEMA has failed to implement any conservation plan with respect to the Listed Species as required by ESA S 7(a)(J) and Plaintiffs are entitled to summary judgement on Count III. VI. CONCLUSION Based on the foregoing it IS ORDERED AND ADJUDGED as follows: I) Plaintiffs' Motion for Summary Judgment is GRANTED on Counts I, II and III; 2) Defendants' Motion for Summary Judgment is DENIED; 3) The parties shall report for a status confer- ence on Tuesday, April 12, 2005, at 9:30 a.m. in Courtroom Three, Eleventh Floor, James Lawrence King Federal Justice Building at 99 N.E. 4th Street, Miami, Florida. DONE AND ORDERED in Charmoers at Miami, Florida, this 29th day of March, 2005. K.M. Moore UNITED STATES DISTRICT JUDGE K. MICHAEL MOORE