FEMA injuncton lifted, new process coming

By Steve Estes

A federal judge has officially lifted the infamous FEMA injunction that has so affected building issues in the Keys for years.

And that, says Mike Roberts, Monroe County environmental resources, almost immediately freed some 15,000 parcels from the onerous rules of the injunction.

According to Roberts, there were nearly 50,000 parcels on the injunction list handed down by the judge and enforced by the Federal Emergency Management Agency.

The list was driven by real estate numbers.

But to get the injunction lifted, Monroe County had to agree to a new building permit review process that sorts the remaining parcels into categories depending on how much development of those properties would affect the endangered species that call Monroe County home.

Those decision are guided by Species Area Focus Maps that show which parcels are inside areas that are reportedly inhabited by endangered species or within a buffer zone for those same species that allows expansion of the particular herd.

“The SFA maps include about 35,000 parcels,” said Roberts. “We haven’t yet done an analysis to determine which specific parcels are no longer restricted.”

He said that the SFA maps would be on the county’s web site in the very near future in a searchable format, “Or people can just call us with an RE number and we can tell them.”

Under the old injunction, parcels on the list had to get released by a firm representing the winners of a 20-plus-year-old lawsuit. That was environmental groups that had sued the US Fish and Wildlife Service and FEMA claiming that the former was abdicating responsibilities under the federal Endangered Species Act for species protection by allowing the latter to continue to issue flood insurance for development in sensitive habitat areas.

Under the terms of the injunction, properties listed couldn’t be eligible for federally subsidized flood insurance to build, with flood insurance a requirement for mortgages backed by any federal agency.

That didn’t mean building there couldn’t take place, it simply meant that mortgages were hard to come by, if not impossible, but building could still take place with cash. There were also other restrictions such as size of the unit, and rebuilds could be no larger than double the footprint of the original home or 1,500 square feet. There were also stringent limits on clearing of habitat.

There are still limitations under the county’s new plan, but most of the decisions can be made locally and parcels can be removed from the conditions and be eligible for flood insurance through the local Growth Management Division.

The erasure of the injunction list allows the county’s new review process to be implemented, said Roberts.

Under the new process, which went into effect the day the injunction was lifted two weeks ago, once the property owner applies for a permit, county staff will review the property. Under certain conditions, the staff can make the determination that the project will not likely affect the listed species. Under certain conditions staff can determine the mitigation that will be necessary to allow a project to proceed that is still covered by the SFA maps. And there will be times, said Roberts, when a project will require consultation with USFWS.

Under the latter scenario, the county would review the permit based on its codes, and add to the notice to proceed after the property owner presents a letter from USFWS with specific conditions or determinations. The property owner would have to agree to those conditions before permits would be issued. Anyone not agreeing would be ineligible for flood insurance.

During the time when the injunction was in place, Roberts said the county put on hold 64 new residential building permits for single-family homes. Those folks are being notified now that the injunction has been lifted and that they can pick up their permits and start work after the determination of affect is completed.

He said there are 160 Rate of Growth Ordinance (ROGO) or NROGO) Non-residential Rate of Growth) allocations that are in the pipeline where plans have been submitted but no permits have yet been acted on.

The developers will have six months from that notification to get inspections on the former and pull permits on the latter.

Those requiring USFWS consultations after the county’s review will have a year.

County staff is finalizing the detailed steps of the new review process and hopes to have it available in the next month or two, said Roberts.

He said that permit holders who have been on the hold list should act quickly because the new review process will require extensive work by county biologists and it’s possible that building fees for biological review may have to be raised.

“That can’t be done without going through the normal channels and approval by the county commission, so it won’t happen overnight,” he said.

“The best thing this does is gives people a procedure to move forward with plans to build,” said Roberts. “They are no longer simply stopped by the injunction.”

Last week, the county threw a minor wrench into the works, however, by approving an ordinance that requires plans to be upgraded to current building codes before final permits can be issued. That has sparked a round of internal debates between staff and contractors over fees already paid versus fees for additional services, costs to engineers and architects that add to the costs of the projects, and which permits will be affected because a date of implementation for the new rule hasn’t been firmly established.

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