Extension is sought

Monroe County may get a short reprieve from the need to implement new growth management regulations to keep its place in the National Flood Insurance Inspection Program.

In a deal brokered last week, the Federal Emergency Management Agency, overseer of the NFIP, has agreed to ask a federal court to extend Monroe County’s deadline to implement those regulations until July 1.

The county was supposed to have implemented the new regulations by last Thursday or have FEMA begin the process to place the county on probation from the NFIP, with a possible expulsion from the program down the road.

Following negotiations with county staff, however, FEMA relented on the Jan. 12 deadline.

In papers filed Wednesday, FEMA acknowledged that the timeline for implementing the regulations wasn’t attainable.

The new regulations are the result of a court settlement between environmental groups, FEMA and the US Fish and Wildlife Service. More than two decades ago, the groups filed suit against FWS claiming that the federal agency was abdicating some of its responsibility to protect endangered species that call Monroe County home by allowing FEMA to continue to subsidize development in sensitive species habitat by issuing federally backed flood insurance.

The courts agreed with that claim and first issued an injunction against human development on more than 40,000 lots in Monroe County while the sides worked out an agreement.

The agreement the three came to, without input from Monroe County, was to have Monroe implement a series of growth management regulations to protect the endangered species.

Under the Reasonable and Prudent Alternatives outlined by FWS, the county would be responsible to monitor development impact in sensitive habitat, keeping such development impact below a maximum threshold in acreage.

Once that threshold was crossed, the county was expected to deny development permits on remaining lots within special species focus areas.

That, said county officials, would put Monroe taxpayers in the cross hairs for potentially $65 million or more in land takings cases from private property owners unable to utilize their land for any economic purpose.

Aside from the potential takings liabilities, county officials also balked at the estimated $450,000 needed to establish the monitoring and review programs, as well as the estimated $250,000 needed yearly to operate the program.

Neither FEMA nor FWS offered to help defray any of that cost.

The settlement agreement was adopted by the court Jan. 11, 2011 and both federal agencies agreed they would have the safeguards in place, through the county, within one year, hence the original Jan. 12 deadline for implementation.

FEMA admits, however, that it didn’t get the county a needed set of species assessment guides until December 23, giving it less than a month to prepare and adopt the mandated regulations.

Under Florida rules, it takes nearly six months to legally adopt land use changes. Once the draft ordinance is written, it must go before the county Development Review Committee at least once, and the county Planning Commission at least once.

Rarely do those presentations fall within the same month as staff has to adjust the working to accommodate recommendations from the DRC before the planning commission sees the revised draft.

Once the planning commission has offered its revisions and recommendations, the proposal goes to the Board of County Commissioners for approval to transmit the language to the state Department of Economic Opportunity. DEO has a couple of months to review the language and can either accept it as is, ask for revisions, or reject it.

After a public comment period, the final document comes back to the county for final adoption.

FEMA sent notice to the county in April that it would be requiring the implementation of the RPAs, but without final assessment guides. The county replied with several concerns it had in late June, and got a letter from FEMA reiterating the need to adopt the regulations in early December.

In that last letter, FEMA told the county it would be placed on probation from the NFIP on May 10 if the regulations hadn’t been adopted. There wasn’t enough time for the county to adopt the ordinances under the current procedural rules.

“As of the date of this filing, Monroe County has not yet revised it floodplain damage prevention ordinances to reference the species focus area maps…..” wrote FEMA attorneys in the extension request. “However, these communities have represented to FEMA they are taking good faith steps toward revising their respective…ordinances.”

FEMA also admitted to the court that it knew Monroe County had drafted an ordinance that does reference the RPAs and planned to submit that draft to the Board of County Commissioners for direction at Thursday’s meeting.

“On that date, the commission will be asked to authorize staff to commence the legislative process which would culminate in a public hearing by the county commission on April 18,” wrote FEMA.

FEMA told the courts that Monroe County needed a five-month extension to accomplish the procedural steps needed to implement any land use changes relating to the RPAs.

What county staff was expected to present to the BOCC Thursday was a draft ordinance that requires property owners in the sensitive habitat areas to get approval first from FWS before the county would accept the permit for processing.

That, said Assistant County Attorney Bob Shillinger, is an attempt to meet the spirit of the FWS and FEMA mandates without the need to implement potentially devastating regulations.

County officials have also already agreed to take FEMA to court over the matter, claiming that the federal agency violated rule-making procedures and went beyond its authority in ordering the county to implement enforcement policies for the federal Endangered Species Act.

Shillinger had said the county’s suits would be filed upon notice of probation proceedings from FEMA, but it was unsure at presstime whether that had changed in light of the FEMA request for an extension.

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