State may have doomed FEMA agreement

By Steve Estes

Just as Monroe County officials were beginning to make headway on some onerous new development issues with the Federal Emergency Management Agency, the state Legislature fired a shot across the bow that might have sunk any hope for an agreement that keeps the county out of the line of fire for potential takings cases that could run into the tens of millions of dollars.

The saga started more than 20 years when environmental groups sued the US Fish and Wildlife Service and FEMA claiming that the former federal agency was abdicating its responsibility for the protection of endangered species in Monroe County by allowing the former federal agency to continue to issue flood insurance policies in sensitive habitat areas.

A federal judge agreed with that claim and over nearly a decade, the two federal behemoths tried to work out a plan that the plaintiffs would agree on.

They hit on one. The only hitch for Monroe County was that the agreement reached made the county the enforcement agency for protection of sensitive habitat under the oversight of USFWS.

County officials tried twice to get a seat at the table for the settlement negotiations and were rebuffed both times. An appeal of the last denial is still pending in federal court.

Under the terms of the settlement, the county has to monitor human development in sensitive habitat areas for FEMA, rejecting development plans that don’t meet the criteria under the court agreement.

The settlement set a maximum acreage amount that can be impacted by human development before the county must stop issuing permits in those areas. Because a lot of that acreage is inside the county’s Tier 3 land category, the category where further development is supposed to take place, county officials feared they could be on the hook for more than $60 million in land takings claims when the allotment ran out.

After months of negotiations, county officials felt they had made inroads with FEMA on definitions and calculations that would decrease the county’s potential liability and make the program easier to administer.

If implemented, county staff says the start up costs for the new programs could be nearly $450,000 with an ongoing yearly cost of more than $250,000.

County Growth Management Director Christine Hurley told the Board of County Commissioners Wednesday that the latest letters from FEMA had contained good news, allowing the county to subtract only the actual acreage impacted instead of the entire parcel, making it far more unlikely that the impact threshold would be exceeded. FEMA also agreed to eliminate the potential impact for parcels where the land is separated from either habitat areas or the buffer zones by a body of water or US 1. That change took about 6,000 parcels off the potential impact list.

And in order to get themselves off the firing line for potential takings cases, county staff has been working an ordinance through the system in the last few weeks that would require USFWS and FEMA to first decide on a finding of no significant impact or impact before the county would process new development permits.

That, says Assistant County Attorney Bob Shillinger, puts the onus on the two federal agencies to deny permits and puts them on the front line for any potential takings cases, lifting that burden from the local taxpayer.

Then came the close of the state Legislative session, and the shot that probably sunk that potential agreement.

State lawmakers overwhelmingly approved a new law last week that will be on the Governor’s desk for signature in the next few days that prohibits local governments from denying or delaying a development permit to first get approval of any state or federal agency that might need to approve the project.

“The new state legislation, which goes into effect July 1, 2012, essentially prohibits us from conditioning permit approval on state or federal permits,” said Shillinger.

Shillinger said the agreements hammered out in recent weeks would have broadened the county’s ability to declare no significant impact, and would have required only the “close calls” to go to the feds for initial review and a “thumbs up or thumbs down” decision.

Shillinger said that the federal agencies cannot require that the county violate state law with its requirements, making the agreement hammered out over the last few months almost useless.

“We gave the feds a heads up about the potential of the new law,” said Shillinger. “But they didn’t pay attention. Now they seem to be waiting to see if the Governor signs the bill before they’ll discuss its impact on the program.”

In essence, the new law means Monroe County would have to issue a development permit before getting state or federal approval even in sensitive habitat.

“We will have already issued the permit, then the Army Corps or Fish and Wildlife says no and we’re on the hook,” said County Commissioner Kim Wigington.

A failure to implement FEMA’s new regulations could mean that Monroe County is suspended from the National Flood Insurance Program, which FEMA oversees.

Flood insurance is required for all loans backed by a federal agency, and participation in the NFIP is necessary to receive federally-subsidized flood insurance. At stake also is millions in pre-storm mitigation money and post-storm debris clean up money that is tied to participation in the NFIP.

A large percentage of development permits in Monroe County require consultation with outside agencies, says Hurley.

Docks sometimes require US Army Corps of Engineers permits, building in partial wetlands requires Corps permission. Building in sensitive habitat has, until now, required the approval of USFWS.

Hurley said she plans to continue to push forward the ordinances that will implement the FEMA mandates until, and if, a solution can be found for the stone wall the state has parked on the process.

“We only received a six-month extension to implement the court agreement,” said Hurley.

“We want to talk to FEMA about a possible work around that keeps everyone compliant with the court order,” said Shillinger. “The feds haven’t even notified the court yet of this new development. We don’t know if there is a work-around to the state decision. We don’t know what that means to us if there isn’t.”

Shilinger was unavailable for comment late Wednesday after the BOCC meeting to get his opinion on whether the state’s move could be countermanded by the federal court’s ruling in the original case.

County officials tried unsuccessfully to get the state Legislature to amend the new law to exclude Areas of Critical State Concern, of which Monroe County is one, but were unsuccessful.

As an Area of Critical State Concern, Monroe County must have nearly all of its land use regulations approved by the state before they become effective.

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