BOCC plots FEMA strategy

The Monroe Board of County Commissioners met behind closed doors Wednesday afternoon in an attempt to determine what its next steps should be in an attempt to shunt aside a mandate from the Federal Emergency Management Agency that commissioners believe could cost county taxpayers more than $65 million in eventual land takings cases.

And according to Brad Loar, chief of the mitigation division for FEMA, not adhering to the federal agency’s mandate could spell expulsion from the National Flood Insurance Program for Monroe County residents.

The battle is shaping up as the result of a two decades old lawsuit by environmental groups against the US Fish and Wildlife Service that claimed USFWS was abdicating its enforcement responsibilities of the federal Endangered Species Act by allowing FEMA to continue to issue flood insurance policies for human development in sensitive habitat for the endangered species that call Monroe County home.

Federal Judge K. Michael Moore agreed with the environmental groups and issued an injunction against further issuance of flood policies in sensitive Monroe County habitat until the groups could produce a biological opinion on whether that development caused jeopardy to listed species.

USFWS issued the opinion last year and claimed that jeopardy was possible through continued human development in sensitive habitat.

To alleviate that jeopardy, USFWS mandated that FEMA set up a program to police the issuance of development permits with federally subsidized flood insurance that impact habitat.

In turn, FEMA offered the judge a program whereby Monroe County becomes responsible for monitoring habitat impact and once a predetermined number of acres have been impacted, must then cease issuing development permits in sensitive areas.

It’s the last part of that plan, accepted by Moore, that has county officials up in arms.

By being forced to deny development permits on private property, county officials believe the ruling puts them on the front line to defend land takings cases and have estimated that could cost taxpayers up to $65 million over the next 20 years.

In its program outline, FEMA issued Reasonable and Prudent Alternatives for Monroe County to follow, including the cut off of permits in the future.

County leaders have not agreed to implement the RPAs. Loar informed officials in early December that if they didn’t implement the RPAs by January, FEMA would begin proceedings to first suspend, then expel the county from the National Flood Insurance Program.

The NFIP provides federally subsidized flood insurance in high-hazard areas. Flood insurance is mandatory for mortgages in a flood zone backed by any federal agency such as Farmers Home Administration or Housing and Urban Development, which nearly 90 percent of local mortgages are.

County officials had decided they would not implement the RPAs, at a cost estimated to be nearly half a million dollars initially and nearly a quarter-million annually, instead asking the court to allow them to intervene in the original case. Two previous attempts at intervention have been rebuffed and the latest denial is still on appeal in the 11th Circuit Court.

Then came Loar’s letter.

“I have never seen a letter from any government agency as strongly worded as that one,” said Commissioner Kim Wigington.

But privately BOCC members have vowed not to cave to FEMA’s demands.

What to do next was the subject of Wednesday’s closed session. No vote was taken and no discussion held after the session.

“I think residents will see they have a commission that is looking out for their best interests,” said Wigington.

“What FEMA is asking us to do is just not right. I don’t feel as though it’s in the parameters of what the NFIP is all about,” she said. “If the court believes FEMA hasn’t done what it’s supposed to do, our residents shouldn’t be forced to bear their burden for that mistake.”

Commissioners had hoped that they could stave off the mandate by waiting for the outcome of the intervention appeal. That appeal has been briefed by attorneys, but “the judge could rule tomorrow, next week, next year,” said Assistant County Attorney Bob Shillinger.

Although details of the session haven’t been released, Shillinger did say last week that the county has some legal options.

Monroe County can file a lawsuit separate from the ongoing case, charging that the FEMA mandate is unfair and that the agency didn’t follow federal rulemaking procedures before it demanded implementation.

Part of that process could be a request for an injunction against implementation of the RPAs until the legal battles are over.

If county property owners lose flood insurance, mortgage lenders would have the option to force place flood coverage on properties. Because the insurance wouldn’t be federally subsidized, the costs for that insurance would be steep, much steeper than what residents pay today.

Lenders would also have the option to foreclose on the properties.

In addition to the mortgage questions that arise, the county would stand to possibly lose millions in federal funding for both pre- and post-storm expenses, including federal funds for debris removal after a storm.

Wigington said that Monroe residents would see what direction the BOCC intends to take “very soon.”

Deliberations involving ongoing or potential litigation are allowed to be closed to the public under Florida statute.

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