Court asked to lift FEMA injunction
Order will be replaced by new permit program

By Steve Estes

The US Fish and Wildlife Service and Federal Emergency Management Agency have asked the federal court to release the development injunction placed on Monroe County several years ago.

The two federal behemoths were sued 23 years ago by environmental groups, claiming that USFWS wasn’t doing enough to protect the endangered species that call Monroe County home because it allowed FEMA to continue to issue flood insurance in sensitive habitat.

A federal judge agreed with that claim and slapped an injunction on nearly 50,000 properties in the Keys that prohibited renovations, new construction and flood insurance in many instances.

More than five years after the injunction went in place, FWS, FEMA and the plaintiffs came to an agreement on a program to answer the group’s concerns and get the injunction lifted. That settlement, however, forced Monroe County to be the first level of enforcement for the federal Endangered Species Act here.

That didn’t sit well with local officials who balked for more than a year at implementing the guidelines for a new permit process suggested by the settlement. Finally, after being threatened by FEMA with a loss of flood insurance and more than a year of negotiations, the county agreed two months ago to implement the program.

With that agreement, the federal agencies have gone back to the judge to ask that the injunction be lifted.

For Monroe County property owners who have been baffled by the injunction for years, that’s not all necessarily good news.

The injunction remains in place until the court has accepted the motion to lift it. Once the injunction is lifted, the county’s new permit review process kicks in to take the place of the rules of the injunction.

Under the new guidelines, properties that are within habitat areas for listed species, or within buffer zones for listed species will have to have a review from county staff. If the lot is scarified, separated from large tracts, in a well-built-out subdivision, or useless to species, the permits can be handled by the county. If only some of those conditions don’t apply, the permit can be issued by the county with some mitigation conditions. If all of those conditions don’t apply, the owner must consult with USFWS for development approval. The county can continue the permit issuance process, but no notice to proceed can be given until the FWS sign-off is complete and any conditions mandated by the federal agency agreed to by the owner.

The county has already adopted the general parameters of the review program such as which properties can be released for permit approval under what circumstances, but the particulars of how property owners go about getting that release are still being worked on by county staff.

At this point, review comes once a permit is applied for. Staff hasn’t yet outlined the procedure to simply request that the property be removed.

Once the injunction is lifted, owners who have been awaiting that event will lose their tolled status. Issued building allocations that were on hold because they were on the injunction list will no longer have that protection and the permits must be picked up soon and work started. Failure to adhere to the permit process rules going forward means the permit expires and the owner has to start over again.

County Growth Management Director Christine Hurley said the new rules, while sometimes confusing, are actually much less Draconian than what FEMA originally proposed.

Under the county’s negotiated program, more than 40 percent of the lots affected by the injunction can actually be released just by county review. Prior to the county’s approval, owners who wanted off the injunction list had to pay a $100 non-refundable fee for review by the plaintiff biologist who could then release the property with the judge’s approval.

No one is sure when the judge will rule on the request, although most seem certain that it will be accepted because all parties have been involved in the long process to develop the new program.

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