Full opinion text
MEMORANDUM DECISION RE FEDERAL DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. 121) OLIVER W. WANGER, District Judge. I. INTRODUCTION This case is before the Court on the Federal Defendant’s Motion for Partial Summary Judgment. This case involves a challenge to the Federal Emergency Management Agency’s (“FEMA”) administration of the National Flood Insurance Program (“NFIP”) in the Sacramento-San Joaquin Delta (“Delta”). Plaintiffs, the Coalition for a Sustainable Delta and Kern County Water Agency, allege in their first claim for relief that FEMA’s ongoing implementation of the NFIP, by, among other things, certifying community eligibility for the NFIP, monitoring community compliance and enforcement with FEMA’s criteria for eligibility, and revising flood maps, provides incentives for development within the Delta that might otherwise not occur and therefore requires consultation under Section 7 of the ESA. Third Amended Complaint (“TAC”), Doc. 118, at ¶¶ 82-83. Plaintiffs claim that residential, commercial, and agricultural development in the Delta adversely affects four listed species: Sacramento River winter-run Chi-nook salmon, the Central Valley spring-run Chinook salmon, the Central Valley Steelhead, and the Delta smelt. Plaintiffs assert that FEMA’s actions under the NFIP cause “more development in the flood-prone areas of the Delta,” which harms listed species. Plaintiffs’ challenges to FEMA actions under the NFIP include: (1) issuance, administration, and enforcement of minimum flood plain management criteria; (2) issuance of Letters of Map Changes (“LOMCs”); and (3) providing flood insurance to property owners within participating communities. Plaintiffs specifically identify 74 LOMCs and two LOMC “Validations” allegedly issued in violation of section 7(a)(2). McArdle Decl., Doc. 123-1, Ex. 1 at 18-26; Norton Decl., Doc. 124, at ¶ 9 & Ex. C. Plaintiffs complain that FEMA’s floodplain management criteria: “Are designed to reduce threats to lives and to minimize damages to structures and water systems, and are not designed to protect aquatic habitat, threatened or endangered species, or other environmental values.” TAC at ¶ 73. This includes FEMA-conducted “community visits” and “technical assistance to local officials” to ensure participating communities adopt and enforce land management ordinances, all of which entails FEMA “discretion” in developing and administering the criteria, requiring section 7(a)(2) consultation. Plaintiffs assert this process encourages third parties to use fill to elevate properties, or build levees to provide flood protection to induce FEMA to remove the property from the SFHA, relieving property owners of the statutory obligation to purchase flood insurance. TAC at ¶¶ 70-72. These floodplain mapping activities are said to “encourage” these harmful actions, requiring section 7(a)(2) consultation. Id. Plaintiffs further complain “FEMA” has issued hundreds of new individual flood insurance policies for the new structures within floodplains utilized by and relied upon by the Listed Species without the benefit of consultation in violation of section 7(a)(2). FEMA and its director Janet Napolitano (collectively, “Federal Defendants” or “FEMA”) move for partial summary judgment on the specific grounds that: (1) Plaintiffs’ Challenge to FEMA’s Minimum Floodplain Management Criteria is barred by the statute of limitations; (2) FEMA’s alleged authority to amend the NFIP regulations does not trigger a duty to consult under the ESA; (3) FEMA’s procedure of issuing LOMCs does not trigger a duty to consult because that process has no effect on listed species; (4) Plaintiffs challenge to certain LOMCs is precluded because Title 42 U.S.C. § 4104 sets forth the exclusive mechanism for challenging LOMCs; and (5) FEMA’s issuance of flood insurance is a non-discretionary act that is not subject to Section 7(a)(2) under National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 669,127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). Doc. 122. Plaintiffs oppose. Doc. 129. FEMA replied. Doc. 138. The matter came on for hearing in Courtroom 3 on April 7, 2011. II. EVIDENTIARY DISPUTES Plaintiffs have filed several requests for judicial notice in connection with their opposition. Docs. 131, 142, 144. All but one is a public record downloaded from a public agency’s official website. These documents are subject to judicial notice under Federal Rule of Evidence 201. See Cachil Dehe Band of Wintun Indians of the Colusa Indian Comm’ty v. California, 547 F.3d 962, 968-69 n. 4 (9th Cir.2008) (taking judicial notice of gaming compacts located on official California Gambling Control Commission website); Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (taking judicial notice of “public records” that “can be accessed at Santa Monica’s official website”). However, judicially noticed documents may be considered only for limited purposes. Public records “are subject to judicial notice under [Rule] 201 to prove their existence and content, but not for the truth of the matters asserted therein. This means that factual information asserted in these documents] or the meeting cannot be used to create or resolve disputed issues of material fact. ” Coalition for a Sustainable Delta v. McCamman, 725 F.Supp.2d 1162, 1183-84 (E.D.Cal.2010) (emphasis added). FEMA asserts that Plaintiffs are attempting to use the documents for improper purposes. FEMA also raises relevance objections to some of the documents. 1. Documents A, B, L, N, Q & R. • Exhibit A — Excerpts from FEMA, Region 10, Floodplain Habitat Assessment and Mitigation, Regional Guidance (Jan. 2010), http://www.fema.gov/ pdf/about/regions/regionx/draft_ mitigation_guide.pdf. • Exhibit B — Excerpts from the Nat’l Marine Fisheries Serv., Northwest Region, Endangered Species Act Section 7 Formal Consultation and Magnusonr-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the on-going National Flood Insurance Program carried out in the Puget Sound area in Washington State (Sept. 22, 2008) (“Puget Sound BiOp”), https://pcts. nmfs.noaa.gov/pls/pcts-pub/sxn7.pcts_ upload.download?p_file=F3181/ 200600472. • Exhibit L — Excerpts from FEMA Region 10, Floodplain Management Guidebook (5th ed. Mar. 2009), http://www.fema.gov/library/view Record.do?fromSeareh= fromsearch&id=3574. • Exhibit N — Excerpts from FEMA Region 10, Community Checklist for the National Flood Insurance Program and the Endangered Species Act (July 2010), http://www.fema.gov/ pdf/about/regions/regionx/BiologicaL Opinion_Checklist8_12._10.pdf. • Exhibit Q — FEMA & NMFS, Frequently Asked Questions, Demystifying National Flood Insurance Program Alignment with the Endangered Species Act, Edmonds, WA March 1 & 2, 2011. • Exhibit R — FEMA, Overview of Compliance Options, ESA and the NFIP, Implementing a Salmon-Friendly Program — FEMA Region 10 Regional Workshop. FEMA argues that these documents, which pertain to FEMA Region 10’s implementation of the NFIP in and around Puget Sound are not relevant to FEMA Region 9’s implementation of the NFIP in the Sacramento San Joaquin Delta. Rule 401 defines “relevant evidence” liberally to include “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” (Emphasis added). Plaintiffs offer these documents to demonstrate that NMFS has determined that implementation of the NFIP in the Puget Sound region jeopardizes the continued existence of listed salmonid species in that region. This satisfies the relevance standard, as any differences in indigenous conditions in Puget Sound go to weight not the admissibility of the information. FEMA’s relevance objections are OVERRULED. Plaintiffs offer these documents for the truth of the matters asserted therein, to prove that a dispute exists over whether FEMA’s administration of the NFIP may affect listed species. This is an impermissible use of judicially noticed documents and the objections on this ground are SUSTAINED. Documents A, L, N, Q, & R, all of which were authored by FEMA, are admissible under Federal Rule of Evidence 801(d)(2)(D), which permits the admission of statements offered against a party that are the statement of the party or the party’s agent or servant, “concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” See United States v. Bonds, 608 F.3d 495, 503 (9th Cir.2010). Each of these documents is an official FEMA publication concerning matters within FEMA’s scope of operations. Exhibit B, a biological opinion prepared by NMFS, is admissible under Federal Rule of Evidence 803(8), which provides an exception to the hearsay rule: (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report..... NMFS prepares biological opinions under a duty imposed by ESA § 7(a)(2). Federal Defendants’ objections to the admission of Documents A, B, L, N, Q & R for their truth are OVERRULED. 2. Document F. • Exhibit F—Excerpts from FEMA, FEMA-1628-DR, California Federal Disaster Assistance Biological Assessment (May 2006), http://www.fema.gov/ library/viewReeord.do?id=1966. This document contains excerpts of a draft biological assessment for ESA consultation with NMFS over the potential effects of “typical projects that are funded by FEMA in response to, or in preparation for, disasters” in California. FEMA argues that this document is not relevant because its actions responding to and/or preparing for disasters are not challenged in the Complaint. This relevancy objection is OVERRULED, because the document, which concludes that activities like removal of vegetation, grading, fill, bank stabilization, and others taken under the NFIP “may affect” listed species, and has some tendency to show these activities make it more likely that implementation of the NFIP may affect listed salmonids in the Delta. This document is a party admission and separately admissible on that ground under Federal Rule of Evidence 801(d)(2). Alternatively, this document is also admissible as a public record under Rule 803(8), as the ESA mandates the preparation of biological assessments when certain conditions exist. FEMA’s objections to the admission of Exhibit F for its truth are OVERRULED. 3. Documents C, Cl, D, E, El, E2, & P. • Exhibit C — Settlement Agreement and [Proposed] Order in Audubon Soc’y of Portland v. FEMA, No. 3:09-cv-00729-HA (D. Or. filed June 25, 2009), ECF No. 20 (filed July 9, 2010), obtained by accessing the official PACER web page for the U.S. District Court for the District of Oregon at https://ecf. ord.uscourts.gov/cgi-bin/login.pl. • Exhibit Cl — Order in Audubon Soc’y of Portland v. FEMA, No. 3:09-cv-00729-HA (D. Or. filed June 25, 2009), ECF No. 21 (filed July 12, 2010), obtained by accessing the official PACER web page for the U.S. District Court for the District of Oregon at https://ecf. ord.uscourts.gov/cgi-bin/login.pl. • Exhibit D — Settlement Agreement and Stipulation of Dismissal in Nat’l Wildlife Fed’n v. Fugate, No. 1:10-cv22300-KKM (S.D. Fla. filed July 13, 2010), ECF No. 20 (filed Jan. 20, 2011), obtained by accessing the official CM/ ECF web page for the U.S. District Court for the Southern District of Florida at https://ecf.flsd.uscourts.gov/ cgi-bin/login.pl. • Exhibit E — Sixth Joint Motion for Stay in WildEarth Guardians v. FEMA, No. 09-0882-RB/WDS (D.N.M. filed Sept. 14, 2009), ECF No. 34 (filed Jan. 28, 2011), obtained by accessing the official PACER web page for the U.S. District Court for the District of New Mexico at https://ecf.nmd.uscourts.gov/ cgi-bin/login.pl. • Exhibit El — First Amended Complaint in WildEarth Guardians v. FEMA No. 09-0882-RB/WDS (D.N.M. filed Sept. 14, 2009), ECF No. 1 (filed Sept. 14, 2009), obtained by accessing the official PACER web page for the U.S. District Court for the District of New Mexico at https://ecf.nmd.uscourts.gov/ cgi-bin/login.pl. • Exhibit E2 — Settlement Agreement and Stipulation of Dismissal in Forest Guardians v. FEMA No. 1:01-cv00079-MCA-RLP (D.N.M. filed Jan. 22, 2001), ECF No. 12 (filed Feb. 25, 2002), obtained by accessing the official PACER web page for the U.S. District Court for the District of New Mexico at https://ecf.nmd.uscourts.gov/cgi-bin/ login.pl. • Exhibit P — Settlement Agreement and Order of Dismissal in WildEarth Guardians v. FEMA, No. 09-0882-RB/ WDS (D.N.M. filed Sept. 14, 2009), ECF No. 37 (filed Feb. 11, 2011, entered Feb. 15, 2011) These documents are court filings and settlements of other litigation. FEMA. objects that under Federal Rule of Evidence 408, these exhibits are inadmissible as evidence of liability. See also Green v. Baca, 226 F.R.D. 624, 640 (C.D.Cal.2005) (noting that Rule 408 bars the use of evidence of settlement negotiations or completed settlements in other cases to prove liability). Rule 408 “does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution____” Fed.R.Evid. 408(b). Plaintiffs claim these documents are offered simply to demonstrate “that FEMA has either voluntarily settled claims that it has failed to consult with respect to [in] its ongoing implementation of the [NFIP].” Doc. 131. This is to show consciousness of liability. Plaintiffs actually use these documents in their Opposition to the Motion for Partial Summary Judgment to argue “it would be curious for FEMA to voluntarily consult if, as the agency claims, it has no legal basis to do so.” Doe. 129 at 9. These are impermissible uses of the settle-merits to establish liability. For this purpose, the objection is SUSTAINED. Plaintiffs alternatively contend that the settlements demonstrate FEMA has discretion to take actions that benefit the species, because if they had no such discretion it could not enter into the settlements as a matter of law. Doc. 141 at 4. FEMA rejoins that, for example, Exhibit P, a settlement agreement pertaining to FEMA’s administration of the NFIP in New Mexico, does not state or imply that FEMA retains discretionary authority with respect to any of the three components of FEMA’s administration of the NFIP in the Delta. But, that settlement calls for initiation of consultation over, among other things, FEMA’s floodplain mapping activities within New Mexico. That FEMA could lawfully enter into consultation on that activity (which would violate Home Builders if FEMA did not have discretion to modify its mapping activities for the benefit of listed species) is relevant to whether FEMA retains similar discretion in its mapping activities in the Delta. These settlement documents are admissible for the limited purpose of demonstrating that FEMA does retain discretion to take actions to benefit the species under the NFIP, not for the truth or to demonstrate liability. FEMA’s objections as to Exhibits C, Cl, D, E, El, E2, and P are OVERRULED solely on that ground. 4. Exhibit G. • Exhibit G — Excerpts from California Resources Agency, Governor’s Delta Vision Blue Ribbon Task Force, Delta Vision Strategic Plan (Oct. 2008), http://deltavision.ca.gov/Strategic PlanningProcess/StaffDraftc/Delta_ Vision_Strategie_Plan_standarcL resolutiompdf. Exhibit G consists of excerpts of the Delta Vision Strategic Plan, prepared by Governor Arnold Schwarzenegger’s Delta Vision Blue Ribbon Task Force. Its discussion of the impacts of development on Delta species is arguably relevant, but it is subject to judicial notice solely for the limited purposes discussed above. Federal Rule of Evidence 803(8) exempts from the hearsay rule public reports concerning “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” The Delta Vision Strategic Plan was the result of California Executive Order S-17-06, requiring a Blue Ribbon Task Force to develop a strategic plan for the Delta. FEMA’s objections to Exhibit G are OVERRULED. The document is admissible as a public record, but its contents and the opinions expressed are subject to dispute. 5. Exhibit H. • Exhibit H — Excerpts from Public Policy Institute of California, Envisioning Futures for the Sacramento-San Joaquin Delta (2007), http://www.ppic.org/ content/pubs/report/R_207JLR.pdf. Exhibit H contains excerpts of a document prepared by the Public Policy Institute of California (“PPIC”). Assuming, arguendo, this document is relevant, it is not subject to judicial notice, as PPIC is a non-governmental organization. Even if it were judicially noticeable, it is not admissible for the truth of its contents. Nor is it admissible under either Rule 801(d)(2) because it is not a FEMA publication or Rule 803(8) because it was not prepared by a government agency pursuant to a legal duty. At oral argument, counsel for Plaintiffs argued that this and all other documents for which judicial notice is sought would be admissible at trial through their retained expert witness. However, any documents offered on summary judgment must be authenticated by an appropriate affidavit or declaration providing a foundation for their admissibility. See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir.2002) (“[Ujnauthenticated documents cannot be considered in a motion for summary judgment.”). Plaintiffs must submit an appropriate affidavit demonstrating the admissibility of these documents through their expert. See In Re Homestore.com Inc. Securities Litig., 347 F.Supp.2d 769, 780 (C.D.Cal.2004) (plaintiffs assertion that a document is an expert report and presentation of purported expert’s background and the source of the data insufficient to authenticate or provide the required foundation for the document). Federal Defendants must be afforded the opportunity to challenge the expert’s qualifications and the admissibility of any opinion testimony based on the documents in question. Alternatively, Plaintiffs invoke Federal Rule of Civil Procedure 56(d), which permits a court to defer considering a motion, deny it, allow time to obtain additional affidavits or discovery, or issue any other appropriate order if the non-moving party demonstrates by affidavit or declaration that it cannot present facts essential to justify its opposition. Plaintiffs’ offer of proof during oral argument that they have retained an expert who will provide foundations for Exhibit H does not explain why they did not earlier address the issue. There is no need to defer a decision on issues for which Exhibit H “may create” a material dispute of fact. The merits of the pending motion can be resolved without reference to this document. It is unnecessary to resolve Plaintiffs’ request for a rule 56(d) continuance to secure expert evidence that would render Exhibit H admissible. 6. Exhibits I through K. • Exhibit I — -Excerpts from Am. Insts. for Research, The Evaluation of the National Flood Insurance Program— Final Report (Oct. 2006) (“NFIP Evaluation Final Report”), http://www.fema. gov/library/viewRecord.do?id=2573. • Exhibit J — Excerpts from Am. Insts. for Research, The Development and Envtl. Impact of the Nat’l Flood Ins. Program: A Summary Research Report (Oct. 2006) (“The Developmental and Envtl. Impact of the NFIP”), http://www.fema.gov/library/view Reeord.do?id=2597. • Exhibit K — Excerpts from Am. Insts. for Research, Assessing the Adequacy of the Nat’l Flood Ins. Program’s 1 Percent Flood Standard (Oct. 2006), http ://www.fema.gov/Iibrary/view Reeord.do?id=2595. Exhibits I through K consist of excerpts of documents prepared by the American Institutes for Research, a private entity. Although the documents were prepared with funds provided by FEMA, the documents explicitly provide that their content “does not necessarily reflect the views or policies of [FEMA].” Norton Deck, Ex. I at 120, Ex. J at 133, Ex. K at 148. These documents are not admissions by FEMA. The documents are arguably subject to judicial notice, as they are made available for public inspection on the FEMA website. See Victoria v. JPMorgan Chase Bank, 2009 WL 5218040 *2 (E.D.Ca. Dec. 29, 2009). The statements contained in the documents are not subject to judicial notice for their truth, nor are they admissions of a party opponent or government reports. As with Exhibit H, these documents have not been properly authenticated for admission through an expert witness for the truth. Plaintiffs again offer to provide such authentication at a later stage of discovery. Again, as with Exhibit H, because Exhibits I through K are unnecessary to the merits ruling on the pending motions, it is unnecessary to resolve Plaintiffs’ request for a Rule 56(d) continuance to secure expert evidence that would render Exhibits I through K admissible. 7. Exhibits M & N. • Exhibit M- — Excerpts from Office of Flood Ins., Fed. Ins. Admin., U.S. Dept, of Housing and Urban Dev., Revised Floodplain Management Regulations of the National Flood Insurance Program, Final Environmental Impact Statement (Sept. 1976), http://www. fema.gov/library/viewRecord.do?id= 3271. FEMA does not object to judicial notice of Exhibit M, which is a public record. Plaintiffs’ request for judicial notice of Exhibit M is GRANTED. It will be considered for the truth under both Federal Rule of Evidence 801(d)(2)(D) and 803(8). 8. Exhibit 0 and 01. The Declaration of Robert C. Horton in support of Plaintiffs’ request for judicial notice lists two additional documents, Exhibits O and 01, that were not addressed in any of Plaintiffs’ requests for judicial notice. See Doc. 131 (requesting judicial notice of Exhibits A-N; Doc. 142) (same as to Exhibit P); Doc. 144 (same as to Exhibits Q-R). Exhibits O and 01 are referenced by Plaintiffs in support of their alternative request to deny Federal Defendants’ motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(d). Specifically, Exhibit 0 is a copy of FEMA’s October 19, 2010 letter responding to Plaintiffs’ request for documents under the Freedom of Information Act (“FOIA”). Exhibit 01 is a copy of a complaint filed by Plaintiffs on September 8, 2010 against FEMA alleging FOIA violations. Both of these documents are judicially noticeable court records, admissible to demonstrate their existence and content, not the truth of or any disputed parts of their contents. III. BACKGROUND A. The Endangered Species Act. The ESA provides for the listing of species as threatened or endangered. 16 U.S.C. § 1533. The Secretaries of Commerce and Interior share responsibility for implementing the ESA. The Secretary of Commerce has responsibility for listed marine species (including anadromous salmonids) and administers the ESA through the National Marine Fisheries Service (“NMFS”). The Secretary of Interior is responsible for listed terrestrial and inland fish species (including the delta smelt) and administers the ESA through the United States Fish and Wildlife Service (“FWS”). See id. § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b). ESA Section 9 prohibits “any person subject to the jurisdiction of the United States” from “takfing] any such species within the United States.” 16 U.S.C. § 1538(1)(B). “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). The ESA’s citizen suit provision allows a private plaintiff to bring an action to enjoin private activities alleged to be in violation of the ESA. Id. § 1540(g). Section 7(a)(2) directs each federal agency to insure, in consultation with FWS or NMFS (the “consulting agency”), that “any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of’ any listed species or destroy or adversely modify designated critical habitat. Id. § 1536(a)(2). The term “action” is defined 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. 50 C.F.R. § 402.02. If the agency proposing the action (“action agency”) determines that the action “may affect” listed species or critical habitat, it must pursue either informal or formal consultation. 50 C.F.R. §§ 402.13-402.14. Formal consultation is required unless the action agency determines, with the consulting agency’s written concurrence, that the proposed action is “not likely to adversely affect” a listed species or its critical habitat. Id. §§ 402.14(b)(1), 402.13(a). If formal consultation is required, the consulting agency must prepare a biological opinion stating whether the proposed action is likely to jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. The ESA’s implementing regulations provide that “Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03. Section 7 does not apply where an agency “simply lacks the power to ‘insure’ that [its] action will not jeopardize endangered species[.” See Home Builders, 551 U.S. at 667, 127 S.Ct. 2518. B. The National Flood Insurance Act and Program. A 2004 decision in a section 7 challenge to FEMA’s implementation of the NFIP in Puget Sound summarizes the NFIP: The three basic components of the NFIP are: (1) the identification and mapping of flood-prone communities, (2) the requirement that communities adopt and enforce floodplain management regulations that meet certain minimum eligibility criteria in order to qualify for flood insurance, and (3) the provision of flood insurance. As part of the NFIP, FEMA also implements a Community Rating System (“CRS”), which provides discounts on flood insurance premiums in those communities that establish floodplain management programs that go beyond NFIP’s minimum eligibility criteria. Nat’l Wildlife Fed’n v. FEMA, 345 F.Supp.2d 1151, 1155 (W.D.Wash.2004) (“NWF v. FEMA ”). 1. FEMA’s Floodplain Management Criteria. Congress created the NFIP to, among other things, “provid[e] appropriate protection against the perils of flood losses” and to “minimiz[e] exposure of property to flood losses.” 42 U.S.C. § 4001(c). The program seeks to “encourage State and local governments to make appropriate land adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses.” Id. § 4001(e). To accomplish these objectives, Congress mandated that FEMA “shall make flood insurance available” in communities that have (1) evidenced interest in securing flood insurance through the NFIP and (2) adopted adequate floodplain management regulations consistent with criteria developed by FEMA. See 42 U.S.C. § 4012(c); see id. § 4022(a); 44 C.F.R. § 60.1(a). The criteria must be designed to encourage state and local governments to adopt flood plain regulations that will: (1) constrict the development of land which is exposed to flood damage where appropriate, (2) guide the development of proposed construction away from locations which are threatened by flood hazards, (3) assist in reducing damage caused by floods, and (4) otherwise improve the long-range land management and use of flood-prone areas. 42 U.S.C. § 4102(c). In 1976, after notice and opportunity for public comment, FEMA promulgated regulations setting forth the minimum floodplain management criteria required by the NFIA. See 41 Fed. Reg. 46,975 (Oct. 26, 1976); 44 C.F.R. §§ 60.3 (criteria for flood-prone areas), 60.4 (criteria for mudslide-prone areas), 60.5 (criteria for flood-related erosion-prone areas). The regulations have not been amended in any substantive fashion since 1997. See 62 Fed. Reg. 55,706, 55,716 (Oct. 27, 1997). In order to qualify for flood insurance under the NFIP, a community must adopt and enforce a floodplain management ordinance that meets or exceeds the regulatory criteria. See 44 C.F.R. §§ 59.2(b), 59.22(a)(3), 60.1. The land management criteria for flood-prone areas require participating communities to adopt land use ordinances that restrict development of land susceptible to flooding. See 44 C.F.R. §§ 60.3, 60.1(d). In relevant part, the ordinances must require new or substantially improved structures to be built with the lowest floor at or above the “base flood elevation.” Id. § 60.3(e)(2)-(3). The base flood is the flood that has a one percent chance of being equaled or exceeded in any given year (referred to as the “100-year flood”). Id. § 59.1. The ordinances also must include effective enforcement provisions. Id. § 59.2(b). A community that fails to adequately enforce its floodplain management ordinance may be put on probation or suspended from the NFIP. See 44 C.F.R. § 59.24(b)-(c) 2. FEMA’s Floodplain Mapping Activities. Under the NFIA, Congress directed FEMA to identify and publish information for floodplain areas nationwide that have special flood hazards (referred to as “Special Flood Hazard Areas” or “SFHAs”) and to establish flood-risk zone data. 42 U.S.C. § 4101. This data is then transferred onto Flood Insurance Rate Maps (“FIRMs”). 44 C.F.R. § 59.1. The SFHA is the “land within a community subject to a 1 percent or greater chance of flooding in any given year,” also referred to as the base flood. Id. The NFIA requires FEMA to assess the need to revise and update FIRMs and flood-risk zones “based on an analysis of all natural hazards affecting flood risks.” 42 U.S.C. § 4101(e)-(f). State or local governments may request FIRM revisions, provided they submit sufficient technical data to justify the request. See 42 U.S.C. § 4101(f)(2). Individual landowners may also request that a FIRM be revised by requesting a LOMC. See 44 C.F.R. §§ 65.4-65.8; 44 C.F.R. pt. 72; 42 U.S.C. § 4104; Norton Deck, Doc. 124, at ¶ 6. 3. Letters of Map Change FEMA periodically revises FIRMs by either publishing a new FIRM or by making minor changes or corrections through Letters of Map Revisions (“LOMRs”) or Letters of Map Amendments (“LOMAs”), collectively LOMCs. 44 C.F.R. pts. 70, 72; Norton Deck, Doc. 124, at ¶ 6. A LOMR is a modification of the effective FIRM “based on the implementation of physical measures that affect the hydrologic or hydraulic characteristics of a flooding source and thus result in a modification of the existing regulatory floodway[], the effective [BFEs] or the SFHA.” 44 C.F.R. § 72.2. A LOMR may also be issued as a result of updated flood hazard data that requires a modification of the FIRM. See 44 C.F.R. §§ 65.4-65.6; Norton Decl., Doc. 124, ¶ 6.b. Any LOMR affecting flood elevation levels is subject to the administrative and judicial review procedures set forth in Section 4104 of the NFIA. See 44 C.F.R. pt. 67; Great Rivers Habitat Alliance v. FEMA 615 F.3d 985, 989 (8th Cir.2010). FEMA may issue a LOMR based on fill activities (“LOMR-F”), which is a “modification of the SFHA shown on the FIRM based on the placement of fill outside the existing regulatory floodway.” 44 C.F.R. § 72.2. If issued, a LOMR-F revises the SFHA boundary by letter to exclude the elevated property from the coverage under the SFHA. Norton Decl., Doc. 124, at ¶ 6.c. By the time any LOMR, including an LOMR-F, is requested, the project (in the case of an LOMR-F, the placement of fill) will have already been completed. An individual LOMR itself does not authorize, permit, fund, license, zone or otherwise approve construction of any projects in the floodplain. Norton Decl., ¶¶ 6.b, 6.c & Ex. B at 2, 6. A Letter of Map Amendment (“LOMA”) is an official determination by FEMA that a property has been inadvertently included in the SFHA or regulatory floodway, and the LOMA amends the FIRM to correct the error. 44 C.F.R. § 70.5; Norton Decl., ¶ 6.a. A property owner who believes his property has been inadvertently included in the floodplain may request a LOMA to establish the property’s actual location in relation to the SFHA. Id. 4. Conditional Letters of Mwp Change. In advance of completing a project (e.g., a fill activity), a community or individual may request FEMA’s comments as to whether a proposed project, if built as proposed, would result in a FIRM revision. FEMA’s comments in response to such a request are issued in the form of a Conditional Letter of Map Amendment (“CLO-MA”), Conditional Letter of Map Revision (“CLOMR”), or Conditional Letter of Map Revision based on Fill (“CLOMR-F”). 44 C.F.R. § 65.8, pt. 70, pt. 72; Norton Decl., ¶ 8 & Ex. B. A CLOMA is FEMA’s comment on whether a proposed structure would, upon construction, be located on existing natural ground above the BFE. 44 C.F.R. § 72.2. CLOMA requests do not involve any projects that physically modify the floodplain. Id. A CLOMR is FEMA’s comment on whether a project would be compliant with applicable NFIP regulations and would, upon construction, result in modification of the BFE, the SFHA, or other flood hazard data depicted on a FIRM. Id. A CLOMR-F is FEMA’s comment on whether a project would, upon construction, be elevated above the BFE and therefore out of the SFHA through the placement of engineered fill. Id. FEMA mandates that a party requesting a CLOMR or CLOMR-F provide information demonstrating that the proposed project complies with the ESA: The CLOMR-F or CLOMR request will be processed by FEMA only after FEMA receives documentation from the requester that demonstrates compliance with the ESA. The request must demonstrate ESA compliance by submitting to FEMA either an Incidental Take Permit, Incidental Take Statement, “not likely to adversely affect” determination from [NMFS and FWS] or an official letter from [NMFS and FWS] concurring that the project has “No Effect” on listed species or critical habitat. If the project is likely to cause jeopardy to listed species or adverse modification of critical habitat, then FEMA shall deny the conditional LOMC request. See Norton Deck, Ex. B at 3. If the project requires a federal permit or other form of federal authorization, “the applicant may coordinate with that agency to demonstrate to FEMA. that Section 7 ESA compliance has been achieved through that other Federal agency.” Id. at 6. If no federal agency is involved and a listed species may be harmed by the project, the applicant “would be required to obtain [ESA] compliance through the Section 10 process. This process includes applying for an Incidental Take Permit (TTP’) [from NMFS or FWS] and preparing a habitat conservation plan.” Id. at 5. 5. The Issuance Of Flood Insurance Within Participating Communities. Congress found that “many factors have made it uneconomic for the private insurance industry alone to make flood insurance available to those in need of such protection on reasonable terms and conditions” and, therefore, authorized the creation of the NFIP “with large-scale participation of the Federal Government and carried out to the maximum extent practicable by the private insurance industry.” 42 U.S.C. § 4001(b). Congress mandated that FEMA carry out a “program which will enable interested persons to purchase insurance against loss resulting from physical damage to or loss of real property or personal property related thereto arising from any flood occurring in the United States.” Id. § 4011(a). FEMA’s role in selling or underwriting flood insurance is defined as follows: The Director shall make flood insurance available in only 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 4102 of this title ... 42 U.S.C. § 4012(c). Federal flood insurance is marketed to the public in one of two ways: directly by FEMA, or through the Write Your Own (“WYO”) program, which authorizes FEMA to “enter into arrangements with individual private sector property insurance companies [WYO companies]” whereby such companies “may offer flood insurance coverage under the program to eligible applicants.” 44 C.F.R. § 62.23(a); 42 U.S.C. § 4081(a). The purpose of the WYO program is “to provide coverage to the maximum number of structures at risk and because the insurance industry has marketing access through its existing facilities not directly available to the FIA, it has been concluded that coverage will be extended to those who would not otherwise be insured under the Program.” 44 C.F.R. pt. 62, App. A Art. I. C. The Impact of Development on the Delta. For purposes of their motion for partial summary judgment, Federal Defendants do not challenge Plaintiffs’ allegations regarding the impact of development activities on the Delta and the listed species. These are undisputed facts. The Sacramento-San Joaquin Delta is the largest estuary on the West Coast. TAC ¶ 1. The Delta is crucial to California’s economy and provides critical ecosystem services to the State. TAC ¶ 1. The Delta also supports more than 750 plant and animal species, including 130 fish species, and provides critical habitat for a number of ESA listed species including the Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, the Central Valley steelhead, (collectively, the “Listed Salmonids”), and the delta smelt, (collectively, the “Listed Species”). TAC ¶ 2. Plaintiffs allege that Development in the Delta has eliminated much of the historical habitat of native Delta fishes and harmed the remaining habitat. TAC ¶¶ 79-80. According to the United States Geological Survey, more than 95 percent of the historic tidal marshes in the Delta have been leveed and experienced attendant losses in fish and wildlife habitat. TAC ¶ 8. Development in the Delta has resulted in the clearing of riparian habitat along the Sacramento River, which reduces the volume of large wood debris needed to form and maintain the stream habitat that salmon depend on in their various life stages. TAC ¶ 81. In addition, development leads to increased sedimentation, which can adversely affect salmonids during all freshwater life stages. Id. Other land use activities associated with development, such as road construction, have significantly altered the fish habitat quantity and quality by altering the streambank and channel morphology, altering water temperatures, and eliminating spawning and rearing habitat. Id. Increased development in the Delta also increases wastewater and urban runoff from lawns, sidewalks, and roads. TAC ¶ 80. Such runoff contains pesticides and other contaminants harmful to the Listed Species. Id. According to NMFS, development in floodplains and adjacent riparian habitat is among the activities that can pose a high risk of take of salmonids: Shoreline and riparian disturbances (whether in the riverine, estuarine, marine, or floodplain environment) may retard or prevent the development of certain habitat characteristics upon which the fish depend (e.g., removing riparian trees reduces vital shade and cover, floodplain gravel mining, development, and armoring shorelines reduces the input of critical spawning substrates, and bulkhead construction can eliminate shallow water rearing areas). 65 Fed. Reg. 42,422, 42,473 (July 10, 2000); see also 58 Fed. Reg. at 33,214 (“In the Sacramento River, critical habitat [for winter-run Chinook salmon] includes the river water, river bottom, and the adjacent riparian zone.... [R]iparian streambanks ... support[ ] vegetation that either overhangs or protrudes into the water and, consequently, provides shade and escape cover for salmonids and other wildlife ... [and] also increases river productivity which, in turn, provides prey for salmon-ids.”). NMFS has also determined that “concentrations of pesticides may affect salmonid behavior and reproductive success.” 65 Fed. Reg. at 42,473. Plaintiffs allege that under FEMA’s mapping regulations, communities and private landowners may place fill or construct levees to remove land from the regulatory floodplain, thereby enabling them to avoid the requirement to obtain flood insurance. See TAC at ¶¶ 70-71. D. No Formal Consultation. FEMA does not contend that it has formally consulted with NMFS over the NFIP’s impacts on the Listed Species in the Delta. IV. STANDARD OF DECISION “A party against whom relief is sought may move, with or without supporting affidavits, for summary judgment on all or part of the claim.” Fed.R.Civ.P. 56(b). “The standard applied to a motion for partial summary judgment is identical to the standard applied to adjudicate a case fully by summary judgment.” Urantia Found. v. Maaherra, 895 F.Supp. 1335, 1335 (D.Ariz.1995). “A court may grant summary adjudication — also known as partial summary judgment — if there is no genuine dispute of material fact as to a portion of a claim or issue and the moving party is entitled to judgment as a matter of law.” Prado v. Allied Domecq Spirits and Wine Group Disability Income Policy, 2010 WL 3119934, at *2 (N.D.Cal. Aug. 2, 2010) (citing Fed.R.Civ.P. 56(c)). “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). Where, as here, the movant seeks summary judgment on a claim or issue on which the nonmovant bears the burden of proof, the movant “can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case.” Id. “If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Soremekun, 509 F.3d at 984; see also Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Under the APA, agency action must be upheld, unless it is “arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A court may not set aside agency action that “is rational, based on consideration of the relevant factors and within the scope of authority delegated to the agency by the statute.... ” The scope of review under the ‘arbitrary and capricious’ standard is narrow, and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The scope of judicial review is limited to the Administrative Record before the agency at the time the challenged decision was made. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Where, as here, the claim for relief is that a federal agency failed to consult under ESA § 7, there is no administrative record of a consultation to limit the court’s scope of review. See Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir.2005) (“Because [the ESA] independently authorizes a private right of action, the APA does not govern the plaintiffs claims [for failure to consult]. Plaintiffs suits to compel agencies to comply with the substantive provisions of the ESA arise under the ESA citizen suit provision, and not the APA.” (citations omitted)). V. DISCUSSION A. Elements of an ESA Section 7 Claim. To prevail on a claim against a federal agency under ESA Section 7(a)(2), the plaintiff must establish that the agency has “authorized, funded, or carried out” “any action” without the benefit of consultation. See 16 U.S.C. § 1536(a)(2). NMFS and FWS have interpreted “action” to mean “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.” 50 C.F.R. § 402.02 (emphasis added). “Examples [of agency action] include, but are not limited to ... actions intended to conserve listed species or their habitat; ... the promulgation of regulations; ... [¶] or ... actions directly or indirectly causing modifications to the land, water, or air.” Id. Second, the agency action must be one that “may affect” listed species or critical habitat. 50 C.F.R. § 402.14(a). If an agency action may affect the Listed Species or their critical habitat, even in a beneficial way, consultation is required. Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1018-19 (2009) (citing 51 Fed. Reg. 19,926, 19,949 (June 3, 1996) (“Any possible effect, whether beneficial, benign, adverse or of an undetermined character, triggers the formal consultation requirement....”)). However, where the action will not affect the listed species at all, the consultation duty is not triggered. See S.W. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447-48 (9th Cir.1996). B. Does the Statute of Limitations bar Plaintiffs’ Challenge to FEMA’s Implementation of the Floodplain Management Criteria. Because the ESA contains no express statute of limitations, the applicable statute of limitations is found in title 28 U.S.C. § 2401(a), the general statute of limitations for civil actions against the federal government. See Alsea Valley Alliance v. Evans, 161 F.Supp.2d 1154, 1160 (D.Or.2001). Section 2401(a) provides: “Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” “Under federal law a cause of action accrues when the plaintiff is aware of the wrong and can successfully bring a cause of action.” Acri v. Intl. Ass’n of Machinists, 781 F.2d 1393, 1396 (9th Cir.1986). “Publication in the Federal Register is legally sufficient notice to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance.” Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364 (9th Cir.1990) (internal citation and quotation omitted). FEMA admits that FEMA’s promulgation of the regulations containing the minimum floodplain management criteria, 44 C.F.R. §§ 60.3-60.5, is the type of affirmative “action” that can trigger a duty to consult under the ESA. See 50 C.F.R. § 402.02 (defining “action” to include “the promulgation of regulations”). However, it is undisputed that these regulations were promulgated in 1976 and last substantively amended in 1997. See 41 Fed. Reg. 46,975 (Oct. 26, 1976); 62 Fed. Reg. 55,706, (Oct. 27, 1997). Any challenge to the promulgation of those regulations is barred by the six-year statute of limitations. The statute of limitations also bars any substantive challenge by Plaintiffs to the validity of the regulations themselves. “After the six-year limitations period has expired, a challenge to the validity of an agency’s rule can only be attacked in two ways: (1) through an ‘as applied’ challenge requesting judicial review of the agency’s adverse application of the rule to the particular challenger, or (2) by petitioning the agency for amendment or rescission of the rule and then appealing the agency’s decision.” Oksner v. Blakey, 2007 WL 3238659, at *6 (N.D.Cal. Oct. 31, 2007) (citing Wind River Min. Corp. v. United States, 946 F.2d 710, 715 (9th Cir.1991)). FEMA has not taken any action applying the NFIP regulations to Plaintiffs. Plaintiffs maintain instead the statute of limitations does not bar this action because FEMA continues to administer and enforce the regulations by providing technical advice, conducting community visits, reviewing participating communities’ land management ordinances, and retaining authority to suspend a community for noncompliance. See TAC ¶ 75. Federal Defendants cite Cedars-Sinai Medical Ctr. v. Shalala, 177 F.3d 1126 (9th Cir.1999), for the proposition that “allowing suit whenever a regulation was administered by a federal agency would virtually nullify the statute of limitations for challenges to agency orders.” Id. at 1129 (internal quotations and citations omitted). However, Cedars-Sinai is an APA case in which Plaintiffs challenged procedural errors in the promulgation of a regulation, a cause of action that accrues upon the issuance of the rule. Id. The Ninth Circuit rejected the argument that the cause of action did not accrue until the administrative agency applied the challenged regulations to the hospital appellees. Id. Cedars-Sinai is not dispositive in this case. Here, Plaintiffs do not challenge the validity of the rules themselves, but rather whether FEMA’s implementation of those rules is subject to the consultation requirements set forth in the ESA. More relevant here are a series of cases applying the ESA to “ongoing” agency programs. These cases fall into two broad categories: (1) where the agency retains discretion under a plan or program to act on behalf of listed species and thereafter continues to act pursuant to that discretion on an ongoing basis, Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th Cir.1994); Washington Toxics Coalition v. EPA 413 F.3d 1024, 1032 (9th Cir.2005); Turtle Island Restoration Network v. NMFS, 340 F.3d 969, 977 (9th Cir.2003); and (2) where the agency either has not retained any discretion to act on behalf of the species or the nature of any discretion retained is insufficient to constitute discretionary “involvement or control” that might trigger a consultation obligation, Karuk Tribe of Cal. v. U.S. Forest Service, 640 F.3d 979 (9th Cir.2011); Cal. Sportfishing Protection Alliance v. FERC, 472 F.3d 593 (9th Cir.2006); Western Watersheds Project v. Matejko, 468 F.3d 1099 (9th Cir.2006); Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir.1995); Envt’l Protection Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073 (9th Cir.2001) (“EPIC”). See Center for Biological Diversity v. Chertoff, 2009 WL 839042, *5 (N.D.Cal.2009) (reviewing caselaw and generally defining the two categories described above). 1. Ongoing Agency Action Cases. Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th Cir.1994), concerned a 1990 Long Range Management Plan (“LRMP”) promulgated under the National Forest Management Act, 16 U.S.C. §§ 1600-1614, et seq., for two National Forests in Oregon. After the 1992 listing of the Snake River Chinook salmon as threatened under the ESA, an environmental organization sued the Forest Service, arguing that the agency was not complying with its duty to consult with NMFS over the impacts of the LRMP on the species. Id. at 1052-53. The Ninth Circuit rejected the Forest Service’s argument that LRMPs are not agency actions under § 7(a)(2): The LRMPs are comprehensive management plans governing a multitude of individual projects. Indeed, every individual project planned in both national forests involved in this case is implemented according to the LRMPs. Thus, because the LRMPs have an ongoing and long-lasting effect even after adoption, we hold that the LRMPs represent ongoing agency action. We affirm the district court’s decision requiring the Forest Service to consult with the NMFS as required under the ESA, 16 U.S.C. § 1536(a)(2). Id. at 1053. A broad definition of “action” under the ESA was adopted: [A]s the Supreme Court emphasized in TVA v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), “one would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the [ESA].” The ESA’s plain language affirmatively commands all federal agencies to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.... ” 16 U.S.C. § 1536(a)(2) (emphasis added). “This language admits of no exception.” TVA, 437 U.S. at 173, 98 S.Ct. 2279. The regulations defining agency action also admit of no limitations: Action means 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. 50 C.F.R. § 402.02 (emphasis added). In short, there is little doubt that Congress intended to enact a broad definition of agency action in the ESA, and therefore that the LRMPs are continuing agency action. Indeed, the Supreme Court has interpreted the plain meaning of agency action broadly, in conformance with Congress’s clear intent, in a case that presents striking similarities to this case. In TVA v. Hill, the Court rejected the Tennessee Valley Authority’s contention that the ESA did not apply' to a federal project (a $102 million dollar dam) that was well under way when Congress passed the ESA in 1973. TVA, 437 U.S. at 173, 98 S.Ct. 2279. The Court noted that “[t]o sustain [this] position ... we would be forced to ignore the ordinary meaning of [the] plain language [in § 7(a)(2) ].” Id. Although the dam had been planned and approved years before the passage of the ESA, the Court found that TVA’s operation of the dam constituted agency action, and it enjoined the dam’s operation. Id. The Court recognized that its reading of the ESA would produce results requiring the sacrifice of many millions of dollars in public funds. But it asserted that “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, thereby adopting a policy which it described as ‘institutionalized caution.’ ” Id. at 194, 98 S.Ct. 2279. Id. at 1053-55 (emphasis added, footnotes omitted). The Ninth Circuit also rejected the Forest Service’s argument that LRMP are agency actions only at the time they are adopted, revised, or amended. In this action, the Forest Service makes ... the ... argument! ] that the ESA does not apply to programs or activities undertaken before the listing of a species. It argues that it is not required to reinitiate consultation because the LRMPs are not continuing agency actions, but are agency actions only at the time they are adopted, revised, or amended. It further maintains that the existence of the LRMPs by themselves are not agency actions. Rather, only the specific activities authorized by the LRMPs are agency actions within the meaning of the ESA. The LRMPs themselves, the Service argues, do not mandate any action and are “merely” programmatic documents. However, the Forest Service can cite no precedent of this or any other court which lends support to such a reading of the statute. And as shown above, TVA weighs heavily against the Forest Service on this point, as is evident from the TVA Court’s observation that “Congress foresaw that § 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.” Id. at 186, 98 S.Ct. 2279. Following the Supreme Court’s lead in TVA we have also construed “agency action” broadly. See Lane County Audubon Soc’y v. Jamison, 958 F.2d 290, 294 (9th Cir.1992); Conner v. Burford, 848 F.2d 1441, 1452 (9th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989). More importantly, we have recognized that forest management plans have ongoing effects extending beyond their mere approval. In Lane County, we found that a forest management plan implemented without consultation violated the ESA. Although the management plan in that case was implemented after the listing of the threatened species, our reasoning is relevant. We stated that the “[forest management plan] is action that ‘may affect’ the spotted owl, since it sets forth criteria for harvesting owl habitat.” Lane County, 958 F.2d at 294. Thus, we implicitly recognized that forest management plans can be actions even after their implementation. Given the importance of the LRMPs in establishing resource and land use policies for the forests in question there is little doubt that they are continuing agency action under § 7(a)(2) of the ESA. The fact that , the Forest Service adopted these LRMPs before the listing of the Snake River chinook is, therefore, irrelevant. We affirm the district court’s order requiring the Forest Service to reinitiate consultation under § 7(a)(2) Id. at 1055-56 (emphasis added, footnotes omitted)., Turtle Island Restoration Network v. NMFS, 340 F.3d 969 (9th Cir.2003) concerned the High Seas Fishing Compliance Act (“Compliance Act”), passed in 1995 to implement various international conventions applicable to fishing vessels on the high seas. Id. at 973 (citing 16 U.S.C. § 5501). The Compliance Act requires American vessels to obtain permits to engage in fishing operations on the high seas and authorizes NMFS to promulgate regulations implementing the act. Id. (citing 16 U.S.C. §§ 5504-5506). The Ninth Circuit examined the language of the Compliance Act: The plain language of the Compliance Act provides Fisheries Service with ample discretion to protect listed species. The intent of the Compliance Act was to implement the “Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas” and “to establish a system of permitting, reporting, and regulation for vessels of the United States fishing on the high seas.” 16 U.S.C. § 5501. The “Conditions” subsection provides that “[t]he Secretary shall establish such conditions and restrictions on each permit issued under this section as are necessary and appropriate to carry out the obligations of the United States under the Agreement, including but not limited to” the markings of the boat and reporting requirements. 16 U.S.C. § 5503(d) (emphasis added). Id. at 975-76. The Ninth Circuit reasoned that NMFS’s “continuing issuance of fishing permits” under the Compliance Act “constitutes ongoing agency action” and that the Compliance Act “entrusts [NMFS] with substantial discretion to condition permits to inure to the benefit of the listed species.” Id. at 976; see also Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1213 (9th Cir.1999) (explaining “well-settled” rule that “contractual arrangements can be altered by subsequent Congressional legislation” so long as the federal agency retains some measure of control over the activity); NRDC v. Houston, 146 F.3d 1118, 1125 (9th Cir.1998) (section 7(a)(2) applies to negotiating and executing water contracts, where agency retained discretion to change previously negotiated t