County stands firm on FEMA

The Monroe Board of County Commissioners has authorized their legal staff to take “any and all legal action” to stave off a threatened suspension from the National Flood Insurance Program.

That, according to Chief Assistant County Attorney Bob Shillinger, is precisely what the legal staff will be doing in the coming weeks as county officials wait for the Federal Emergency Management Agency to blink.

FEMA has threatened to suspend Monroe County from the federally-subsidized flood insurance program because the county hasn’t yet begun the process to implement some controversial land-use regulations.

The regulations have been ordered on Monroe County by the courts as a settlement agreement between FEMA, the US Fish and Wildlife Service and conservation groups. The groups sued USFWS more than 20 years ago, claiming the agency charged with protecting endangered species had fallen down on the job by allowing FEMA, through the flood insurance program, to continue to write policies in sensitive species habitat.

As a settlement to the long-running suit, USFWS offered a series of Reasonable and Prudent Alternatives that could be followed to minimize further impact on habitat. Those alternatives were accepted by the court.

The only problem county officials have found with the settlement agreement is that it forces Monroe County to act as the watchdog against development in the habitat areas. And as the watchdog, local officials fear that when the federal agency’s maximum acreage of impacts are reached, Monroe will be the entity that has to deny any further permits, thus putting itself on the front lines for what officials estimate could be tens of millions of dollars in land takings cases.

The county, which has twice tried to get their concerns noted by the courts and been rebuffed, was told by FEMA early this month that county officials would have to implement the RPAs by January 12, 2012 or face suspension from the NFIP.

Because Monroe County’s a high hazard area for flooding, residents are required to carry flood insurance for a mortgage approval. The NFIP supplies subsidized policies that are half the cost, or less, of what private flood insurance would be.

The BOCC has balked at implementing any of the alternatives, still trying to ask the question why Monroe County, which had no input in the settlement agreement, is tasked with enforcing the federal Endangered Species Act.

No implementation, no flood insurance, is the stance FEMA has taken.

In addition to the loss of individual flood insurance, the county also faces the potential loss of federal money for pre-storm mitigation and post-storm debris clean up.

For its recalcitrant behavior, Shillinger said, “We fully expect to get a letter in January from FEMA informing us that they are placing us on probation from the NFIP.”

As soon as that occurs, he says, county legal staff will be ready to file all of its actions in an attempt to enjoin FEMA from potential suspension of the county.

County Mayor David Rice has said that the county will take all legal actions at its disposal to fend off suspension of the county from the NFIP.

“We intend to pursue every possible avenue,” said County Administrator Roman Gastesi. “We’re going to take the carpet bomb approach. We’ve put in calls to FEMA’s upper echelon and more local officials. We’ve tried to open a dialogue with Fish and Wildlife. We’ve asked for the support of Congresswoman Ileana Ros-Lehtinen.”

Gastesi went so far as to say he expected a call any day from FEMA to talk about the situation.

Ros-Lehtinen has already lambasted FEMA Administrator Craig Fugate, writing a letter in early December to “express my indignation” over the letter from FEMA Mitigation Director Brad Loar that threatened the county with suspension from the NFIP.

“Over 17,000 of my Keys’ constituents who are NFIP policyholders are being held hostage by FEMA as it attempts to coerce the implementation of measures…”wrote Ros-Lehtinene. “It’s hard to believe that FEMA’s solution to the lawsuit…is to demand that Monroe County revise its Flood Plain Management ordinances to implement Endangered Species Act protective measures and take on all liability…”

The alternatives proposed by USFWS call for county staff to monitor development in the affected habitat areas for the nine species listed in the lawsuit. FEMA has already stated it won’t issue flood insurance in those areas, but that doesn’t stop people from using cash or private insurers for mortgages.

Another of the county’s concerns is that it doesn’t have the authority to regulate development by other governmental agencies, such as the federal and state governmental agencies, the school board, mosquito control, nor does it have much say so on development by public utilities as long as they use established rights-of-way.

Monroe County officials do plan to cover some bases other than a legal fight, according to Shillinger.

“The BOCC gave staff the authority to start drafting ordinances that meet the spirit, if not the intent, of the settlement agreement and the FEMA mandate,” said Shillinger.

He said the ordinances would be written in such a way that FEMA and USFWS would first have to review the development application and make a determination of whether the development would have an adverse impact before the county would even entertain the application into its system.

“What we hope to do with that is give FEMA pause to stand back and review whether we have acquiesced to the spirit of the RPAs and thus avoid suspension from the NFIP,” said Shillinger.

County staff has opined that the legal fight would take several fronts. The first is an already-filed action to appeal the denial of the county’s intervention in the original lawsuit.

Others could include a suit challenging the actual settlement agreement, and one claiming that FEMA failed to follow its own rule-making procedures before laying the onus for enforcement on the county’s lap.

County Commissioners Sylvia Murphy has said that what FEMA is trying to do simply isn’t fair. “I don’t think you can settle a case between A and B by telling C they have to enforce the agreement, which is what FEMA is trying to do.”

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