FEMA threatens flood insurance

Unless Monroe County agrees to act as the enforcement agent for the federal Endangered Species Act here by Jan. 12, 2012, it risks being booted from the National Flood Insurance Program.

That was the highlight of a letter the county received last Friday from the Federal Emergency Management Agency in response to the county’s concerns about implementing new growth management rules through its flood plain management ordinances to limit impacts on endangered species in Monroe County.

The issue stems from a two-decade-old lawsuit that was settled in January. In that suit, environmental groups sued FEMA and the US Fish & Wildlife Service claiming that USFWS was failing in its duty to protect endangered species because it continued to allow FEMA to issue federally subsidized flood insurance in sensitive habitat for human development.

As part of the settlement, FEMA and USFWS outlined new rules the county would have to implement to prevent those impacts in the future.

Under those rules, it would be up to Monroe County to monitor the acreage affected and when certain impact plateaus were reached, to cease issuing development permits.

That, claim county officials, would put the Monroe County taxpayer squarely on the hook for what is estimated to be more than $60 million in possible land takings cases over the next 20 to 30 years.

In a prepared statement released Tuesday, county officials stated, “The ordinance changes demanded by FEMA would impose additional environmental and conservation conditions on building permits issued by the county to owners of property thought by the US Fish and Wildlife Service to contain suitable habitat for a number of threatened and endangered species.”

“The county has resisted adopting FEMA’s proposed changes primarily out of a concern that it could lead to millions of dollars in liability for the taking or private property rights,” stated the release. “The county also contends that the federal government is unlawfully delegating its enforcement obligations under the Endangered Species Act to the county and has violated the Federal Administrative Procedures Act by bypassing the formal rule making process.”

County officials sent a letter to FEMA in mid-June outlining their concerns with the proposed rules. Since then, the two have been in negotiations.

The FEMA stance last week came as a disappointment to county officials.

“It is disappointing that FEMA has chosen to take this position after over a year of negotiations. They took six months to respond to our letter and, then only did so on the eve of a deadline that—because of their delay—is now impossible to meet,” said Mayor David Rice in the prepared statement. “We’ve been telling them for over a year that they’re putting us in an untenable situation. Either FEMA doesn’t care or isn’t listening.”

Monroe County has tried twice to intervene in the original case, and has twice been rebuffed. The latest denial is currently being appealed on the docket of the 11th Circuit Court of Appeals.

The county maintains that the two federal behemoths reached a settlement that puts the federal burden on the backs of the local county without any input from the county as to the potential ramifications of such a far-flung set of new regulations.

To bring about the court settlement, USFWS was ordered to author a biological opinion on the possible impact of continued issuance of flood insurance by FEMA in areas of sensitive habitat.

That opinion found that continued human development beyond certain limits would likely jeopardize the continued existence of the Key Largo woodrat, Lower Keys marsh rabbit, Key Largo cotton mouse and Keys tree cactus.

To alleviate that jeopardy, FEMA ordered that certain Reasonable and Prudent Alternatives be implemented by the county.

Some of those RPAs include denying permits for further development on private property when a maximum impact acreage has been reached. That is the program that could potentially result in what the county calls “unsustainable” losses in takings cases.

FEMA’s answer to those concerns, penned by Brad Loar, chief of the FEMA community mitigation program, seemed to county officials to be somewhat ambiguous.

In one section, Loar states that it is beyond FEMA’s authority to direct Monroe County not to issue permits for development in listed species habitat. “The prohibition is the issuance of a flood insurance policy that results in unauthorized take.”

But according to the RPAs, Monroe County would be required to cease issuing permits in affected habitat when the maximum acreage has been reached.

Loar says that before that maximum is reached, another consultation will be opened if it appears that the authorized impacts are about to be exceeded.

“I am shocked that FEMA is now threatening us with suspension from the NFIP for not implementing the RPAs,” said County Administrator Roman Gastesi. “The letter we received completely ignores the pending court case appealing the denial of intervenor status.”

Every county official on a media conference call Tuesday admitted that the county cannot implement the ordinance changes by the Jan. 12, 2012 deadline. Under the state’s rules for land use changes, it takes a minimum of about five months to put new regulations into affect.

FEMA has threatened to issue a probationary status determination on Jan. 12, and implement the status on May 12, 2012. If the RPAs aren’t fully implemented by six months after the beginning of the probationary status, the county will be suspended from the NFIP. During the probationary period, the county will not be able to issue development permits in habitat areas outlined by USFWS in a series of species area focus maps.

A probationary status also means that the 17,169 existing flood insurance policies in the Keys, that protect about $4 billion in property values, would each be charged an additional $50 to keep the policies in effect. If suspension takes place, no flood policies would be issued or renewed with federal backing. All flood insurance would have to be purchased from private providers, usually double or more the cost of a policy backed by the NFIP.

The loss of status under the NFIP means that no one would be able to purchase federally subsidized flood insurance, a requirement to receive a federally backed mortgage.

Being booted from the NFIP could also mean that Monroe County would receive little or no federal assistance during disaster recovery after hurricanes.

The threat to suspend Monroe County from the NFIP changes the game plan for the county. Originally, the Board of County Commissioners had voted not to spend the approximately $450,000 it will take to implement the RPAs until the outcome of the intervenor appeal.

A hurried timeline may force other action.

One of the actions that could be taken is the filing of a suit by the county against the implementation of the RPAs.

“We could challenge the grounds used for determining the RPAs including a claim that FEMA bypassed the federal rule making policies,” said Chief Assistant County Attorney Bob Shillinger.

He said that an injunction against further action by FEMA could be part of the filing, “although we may have to wait for the notice of suspension for the case to become ripe for court. We will have to research that further.”

Facing the Jan. 12, 2012 deadline, that can’t possibly be met, the BOCC will discuss potential future moves at its Dec. 14 meeting.

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