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HomeMy WebLinkAboutK. Growth ManagementBOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20, 2010 Division: Growth Mann ement Bulk Item: Yes _ No X Department: Staff Contact Person/Phone #: Christine Hurley Phone: 289-2517 AGENDA ITEM WORDING: Discussion and possible action concerning whether property owners using Section 130-61.1 Affordable Housing Incentive Programs, of the land development code should be exempt from planning and development review/approval fees. ITEM BACKGROUND: Monroe County adopted Section 130-161.1 Affordable Housing Incentive Programs several years ago. The intent of the program is to allow existing mobile home park sites to restrict the existing units to affordable housing and, for the long term affordability restriction, the owner may obtain affordable ROGO allocations for those units, thereby freeing up "market rate units" from the site, with the ability to transfer the units to Tier III lands in the same sub -area that are developable. In the end, the total number of units are in essence "doubled" — half of the total units are restricted to affordability for 99 years, while the other half of the units end up market rate. To date, this program has not been used; although there are several owners that have either submitted applications to participate in this program or are working on applications to be submitted. Staff is seeking input from the Board on whether applications under Section 130-161.1 for development agreements, and more than likely a minor or major conditional use for the sender site, as well as the possible minor or major conditional use for the receiver site should be exempt from fees, based on Fee Resolution 295-2010 (attached). The fees for a Development Agreement are $12,900 and a minor conditional use is $8484. The wording in the fee resolution related to affordable housing is: "No application or other fees for affordable housing projects" Attached is a letter from Trepanier & Associates, Inc. requesting fee exemption for their proposed development agreement for Roy's Trailer Park, Inc. to get them started in the Affordable Housing Incentive program. We are seeking a general interpretation, as this may apply to other applicants. Options: 1. Exempt all fees for projects participating in Section 130-161.1 (including applications for sender site and receiver sites). 2. Exempt all fees for projects participating in Section 130-161.1 for sender site only, where affordable housing will be retained for a long term. Charge fees for receiver sites. 3. Exempt no fees for projects participating in Section 130-161.1 PREVIOUS RELEVANT BOCC ACTION: n/a CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Staff cannot support exempting all fees for this program, as it creates market rate units at receiver sites. Therefore, staff supports Option 2 or 3. TOTAL COST: INDIRECT COST: _ DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: REVENUE PRODUCING: Yes No UDGETED: Yes No SOURCE OF FUNDS: - AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing Risk Management _ DOCUMENTATION: Included x Not Required DISPOSITION: AGENDA ITEM # Sec. 130-161.1. -Affordable housing incentive programs. (1)Purpose and intent. The intent of this section is to set forth a program to help incentivize affordable housing development within Monroe County. (2)Program 1: Transfer of ROGO Exemptions from Mobile Nome Parks. (a)Purpose and intent: The intent of this program is to establish an appropriate incentive for mobile home park owners to maintain mobile home park sites, mobile home developments in URM and URM-L districts, and contiguous parcels under common ownership containing mobile homes where any of the foregoing is presently serving as a primary source of affordable housing in Monroe County (any of the foregoing being an "eligible sender site") by providing an alternative development strategy to straightforward market -rate redevelopment. This program is intended to allow the transfer of market rate ROGO exemptions associated with lawfully established dwelling units now existing at an eligible sender site to be transferred to another site or sites in exchange for maintaining an equal or greater number of deed -restricted affordable dwelling units within Monroe County. This program seeks to address the housing needs of the Florida Keys as a regional obligation. This program provides an eligible sender site owner the opportunity to transfer market rate ROGO exemptions currently associated with existing and lawfully established dwelling units from eligible sender sites to receiver site(s) within Monroe County, provided that it involves the pooling of affordable dwelling unit rights for redevelopment at donated, purchased or otherwise appropriately deed -restricted sites, and transfer of ROGO exemptions or allocations for the purpose of implementing and facilitating one or more affordable housing projects. The provisions of this section shall control over all contrary provisions of this chapter related to the transferability of ROGO exemptions. (b)Procedure. (i)This transfer shall require an approved development agreement. (ii)Minor conditional use approval is required to complete the transfer. (iii)A development agreement shall not be required for an eligible sender site containing ten or fewer mobile homes. For the purposes of this exception, property owners shall not be permitted to subdivide by deed, split ownership or otherwise divide larger contiguous parcels containing more than ten mobile homes to create parcels containing fewer than ten mobile homes. (c)Development agreement requirements. (i)Sender site restrictions: (1)R000 exemptions transferred under this program may be transferred on a 1 for 1 basis where the ROGO exemptions are to be transferred to single-family residential lots or parcels within the same ROGO planning subarea. However, where transfers are to be made to commercial or recreational working waterfronts (as defined by Florida Statutes), or to multi -family projects in non -IS districts, the transfers shall result in no fewer than two deed -restricted affordable or workforce housing units remaining on an eligible sender site(s) for each market rate ROGO exemption transferred. This section expresses the county's preference for transfer of ROGO exemptions to single-family lots/parcels. The following examples are set forth only to show some potential transfer scenarios. A given potential scenario may depend upon availability of affordable ROGO allocations provided by the county. Example 1: Transfer on a 1 for 1 basis. Existing 100-unit mobile home park. A development agreement with the county may, if approved, allow the owner to transfer up to 100 ROGO- exemptions to single-family lots/parcels as long as an equivalent number of deed -restricted affordable dwelling units remain or are created on one or more created on one or more eligible sender site(s). Example 2: Transfer on a 1 for 2 basis. The same existing 100-unit mobile home park. A development agreement with the county may, if approved, allow the owner to transfer up to 50 ROGO-exemptions to commercial or recreational working waterfront or multi -family projects in non -IS districts, as long as at least twice as many deed -restricted affordable dwelling units remain or are created on one or more eligible sender site(s). Example 3: Transfer on both 1 for 1 and 1 for 2 basis. The same existing 100-unit mobile home park. A development agreement with the county may, if approved, allow the owner to transfer up to 25 ROGO exemptions to a commercial or recreational working waterfront Mixed Use parcel, and 50 ROGO-exemptions to single-family lots/parcels, as long as 100 deed -restricted affordable dwelling units remain or are created on one or more eligible sender site(s). (2)The eligible sender site property(ies) shall be donated or sold to Monroe County, or otherwise appropriately deed -restricted for long-term affordability. Prior to acceptance of a donated or purchased parcel, all units to be maintained on site shall pass a life safety inspection conducted in a manner prescribed by the Monroe County Building Department. Monroe County may then lease the sender site property to a party who will serve as lessee and sub -lessor of the eligible sender site(s). (3)The number of transferred ROGO exemptions shall not exceed the number of restricted affordable dwelling units maintained at the eligible sender sites. (4)The resulting development or redevelopment of affordable housing pursuant to the governing development agreement will be targeted to serve as closely as possible the following household income categories: 25 percent very low income households, 25 percent low income households, 25 percent median income households, and 25 percent moderate income households (or as otherwise approved by the BOCC). (5)Lot rents and/or sales prices for resulting deed -restricted dwelling units shall be established in accordance with restrictions outlined in Florida Statutes and/or the Monroe County Code. (6)Ali units designated by the applicable development agreement to remain as deed restricted affordable housing at the donated, purchased or appropriately deed -restricted site(s) shall comply with hurricane standards established by the Florida Building Code and habitability standards established under the Florida landlord and Tenant Act. Compliance shall be accomplished in a manner and within a timeframe set forth in the development agreement or, if applicable, in the relevant minor conditional use. (7)A development agreement proposed under this program shall not utilize more than 50 percent of the existing affordable housing allocations then available to Monroe County, unless otherwise approved by the BOCC. (8)Ail of the redeveloped or preserved affordable housing units, whether redeveloped or retained at the original sender site(s), or at alternate alternate or additional locations, shall remain in the same planning sub -district as the original sender site(s). (d)Minor conditional use requirements. (i)Receiver site criteria: (1)The receiver site shall be located in a Tier III designated area. (2)The receiver site shall not be located in a velocity (V) zone. (3)A property owner cannot receive a certificate of occupancy for any unit constructed as a result of a transferred ROGO-exemption until all corresponding eligible sender site units are completed and deed -restricted as affordable dwelling units. (4)AII or any portion of the redeveloped or preserved affordable housing units may be redeveloped or retained at one or more alternate or additional locations donated or sold to Monroe County, identified in the Development Agreement and otherwise compliant with the remainder of this section, including but not limited to the requirements set forth in subsection (2)(c)(i)(2)• (5)Transferred ROGO-exemptions shall remain in the same ROGO planning subarea. (e)Nothing herein shall preclude the county's replacement of sender site dwelling units with affordable allocations and recovery and transfer of market -rate ROGO-exemptions from the sender sites for use in administrative relief programs or other like purposes. Date: 6/7/10 To: Mr. Townsley Schwab, Planning Director From: Mehdi Benkhatar CC: Owen Trepanier Re: Roy's Trailer Park, Inc. Project Description Dear Mr. Schwab, T REPANIE% &ASSOCIXFFS INC LAND USE PLANMNC DEVELOPC'ENT CONSULTANT', I am pleased to propose a development agreement that will lead to the preservation of up to 107 affordable housing units in the Lower Keys. We are requesting consideration of the attached development agreement for the Island Life Village Trailer Park, formerly known as Roy's Trailer Park, under Ordinance 002-2008. We also request the County waive the application fee associated with this application based on the public benefit that will be realized by preserving these de facto affordable units. The development agreement contained within this packet is for a 108-unit mobile home park d/b/a "Island Life Village Trailer Park, Inc." on Stock Island. The agreement builds off of County Ordinance 002-2008, which provides ROGO incentives for Mobile Home Park owners to maintain mobile home parks, sites, lots, and developments for affordable housing purposes. Island Life desires to transfer its existing market rate ROGO exemptions associated with its lawfully established dwelling units to another site or sites in exchange for maintaining an equal or greater number of deed -restricted affordable dwelling units within Monroe County. Thank you for your consideration. Please don't hesitate to call if you have any questions or need additional information. Best, ��- Mehdi Benkhatar Planner/Development Specialist 402 Appelaouth I.,ane - P.O. Box 2155 - Key West, FL - 33045-2155 Phone: 305-293-8983 • Pax: 305-293-8748 - Email: mail@owentrepanier.corn RESOLUTION NO.295 -2010 A RESOLUTION AMENDING THE PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT FEE SCHEDULE TO INCLUDE THE NUMBER OF INTERNAL STAFF MEETINGS AND THE NUMBER OF PUBLIC HEARINGS INCLUDED IN BASE FEES AND ADDING ADDITIONAL FEES AFTER INCLUDED MEETINGS AND HEARINGS ARE EXCEEDED; CLARIFYING THAT APPLICANTS ARE REQUIRED TO PAY HALF OF ANY HEARING OFFICER TRAVEL AND EXPENSES; ADDING A DOGS IN RESTAURANT PERMIT FEE; REPEALING ANY OTHER FEE SCHEDULES INCONSISTENT HEREWITH. WHEREAS, the Monroe County Board of County Commissioners wishes to provide the citizens of the County with the best possible service in the most cost effective and reasonable manner; and WHEREAS, the Board finds that it would be in the best interests of the general public to charge the true cost for such services, thereby placing the burden of such costs directly upon those parties deriving the benefit from such services; and, WHEREAS, the updated fee schedule prepared by the Growth Management Director for providing these services includes the estimated direct costs and reasonable indirect costs associated with the review and processing of planning and development approval applications and site plans, on -site biological reviews, administrative appeals, preparation of official documentation verifying existing development rights and other processes and services; and WHEREAS, the Board has discussed the need to adjust the fee schedule to compensate the county for resources needed in excess of the fee estimates included in the base fees; and WHEREAS, the Board heard testimony and evidence presented as to the appropriate fee schedule during a public hearing on September 15, 2010; and WHEREAS, the Board of County Commissioners wishes to amend fees to compensate for resources expended in applications for private development approvals. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY FLORIDA: Section 1. Pursuant to Section 102-19(9), the following schedule of fees to be charged by the Growth Management Division for its services, including but not limited PLANNING FEE RES© - PROPOSED - 09 15 2010 without underline Page 1 of 4 to the filing of land development permit applications, land development approvals, land development orders, and appeal applications, and requests for technical services or official letters attesting to development rights recognized by the County shall be implemented: Administrative Appeals 1500.00 Administrative Relief 1,011.00 Alcoholic Beverage Application 1,264.00 Appeal ROGO or NROGO to BOCC 816.00 Beneficial Use 4,490.00 Biological Site Visit (per visit) 280.00 Biologist Fee (misc — per hour) 60.00 Boundary Determination 1,201.00 Comprehensive Plan Amendment 5,531.00 Conditional Use Application, Major 10,014.00 Conditional Use, Application, Minor 8,484.00 Conditional Use, Minor Deviation 1,768.00 Conditional Use, Revised Plan Review 638.00 Conditional Use, Time Extension 986.00 Conditional Use, Transfer of Development Rights 1,239.00 Conditional Use, Transfer of Floor Area 1,944.00 Conditional Use, Transfer of ROGO Exemption 1,740.00 Development Agreement 12,900.00 Development of Regional impact 28,876.00 DOAH Appeals 816.00 Dock Length Variance 1,026.00 Future Land Use Map Amendment 5,531.00 Grant of Conservation Easement 269.00 Habitat Evaluation Index (per hour) 60.00 Home Occupation Application 498.00 Inclusionary Housing Exemption 900.00 Land Development Regulations Text Amendment 5,041.00 Land Use District Map Amendment — Nonresidential 4,929.00 Land Use District Map Amendment —Residential 4,131,00 Letter of Current Site Conditions 936.00 Letter of Development Rights Determination 2209.00 Letter of ROGO Exemption 215.00 NROGO Application 774.00 Planning Fee (misc - per hour) 50.00 Parking Agreement 1,013.00 Planning Site Visit 129.00 Platting, 5 lots or less 4,017.00 Platting, 6 lots or more 4,613.00 Pre -application with Letter of Understanding 689.00 Pre -application with No Letter of Understanding 296.00 Public Assembly 149.00 PLANNING FEE RESO - PROPOSED - 09 15 2010 without underline Page 2 of 4 Dog in Restaurant Permit Application Fee 150.00 Research, permits and records (per hour) 50.00 Road Abandonment 1,533.00 ROGO Application 748.00 ROGO Lot/Parcel Dedication Letter 236.00 SB 360/SB 1752 Additional 2 Year Extension for Development Orders/Permits 250.00 Sign Variance 1,076.00 Special Certificate of Appropriateness 200.00 Vacation Rental Application 493.00 Vacation Rental Manager License Fee 106.00 Vacation Rental Renewal 100.00 Variance, Planning Commission 1,608.00 Variance, Planning Director 1,248.00 Vested Rights Determination 2,248.00 Waiver, Planning Director 1,248.00 Wetlands Delineation (per hour) 60.00 Growth Management applications may be subject to the following additional fees or requirements: 1. Advertising and /or notice fees; $245 for newspaper advertisement and $3 per property owner notice. 2. No application or other fees for affordable housing projects. 3. Hearing fees: applicant shall pay half the cost of the hourly rate, travel and expenses of any hearing officer. County is currently charged $142.00 per hour by Department of Administrative Hearings (DOAH). If the fee charged to the County is increased, the charge will change proportionately. 4. Base fees listed above include a minimum of (when applicable) two internal staff meetings with applicants; one Development Review Committee public hearing; one Planning Commission public hearing; and one Board of County Commission public hearing. If this minimum number of meetings/hearings is exceeded, the following fees shall be charged and paid prior to the private development application proceeding through public hearings: a. Additional internal staff meeting with applicant $500.00 b. Additional Development Review Committee public hearing $600.00 c. Additional Planning Commission public hearing $700.00 d. Additional Board of County Commission public hearing $850.00 The Director of Growth Management or designee shall assure these additional fees are paid prior to hearing scheduling. These fees apply to all applications filed after September 15, 2010. PLANNING FEE RESO - PROPOSED - 09 15 2010 without underline Page 3 of 4 S. Subject to technology fee of $20. 6. Applicants for Administrative Appeal who prevail based on County error, as found by the Planning Commission, shall have the entire application fee refunded. Section 2. Any other fees schedules or provisions of the Monroe County Code inconsistent herewith are hereby repealed. Section 3. The Clerk of the Board is hereby directed to forward one (1) certified copy of this Resolution to the Division of Growth Management. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 15th day of September, 2010, Mayor Sylvia Murphy Yes Mayor pro tem Heather Carruthers Yes Commissioner Kim Wigington lies Commissioner George Neugent Yes Commissioner Mario Di Gennaro Not Present BOARD OF COUNTY COMMISSIONERS OF MONROE OUNT , F I A BY: -� _. May Sylvi Murphy = (SEAL) TEST: DANNY L. KOLHAGE, CLERK J Deputy Clerk M0 E UMTY AiTORHEY �PP OVED A5 TO FOR Oita: T. PLANNING FEE RESO - PROPOSED - 08 18 2010 Paae 4 of 4 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20, 2010 Bulk Item: Yes No X Division: Growth Mana ement Department: Planning and Environmental Resources Staff Contact Person/Phone #: Trish Smith 305 304-0412 AGENDA ITEM WORDING: Discussion and status report relating to a sublease agreement with the Florida Department of Environmental Protection, Office of Greenways and Trails to manage the "Swimming Hole" property on Big Pine Key as a passive recreational facility. ITEM BACKGROUND: The State of Florida owns six parcels on the west end of Big Pine Key on the north and south sides of US 1. These parcels are undeveloped and include a deep boat basin with a shallow entrance. In 2003 and 2005, the BOCC directed staff to pursue a sublease agreement with the State for development of a passive park. During this time, the parcels were managed by the US Fish and Wildlife Service (USFWS). In 2008, USFWS released their lease when the property was deemed more appropriate for recreational purposes than for the management of endangered species. The Florida Department of Environmental Protection, Office of Greenways and Trails (OGT) took over the lease, and the property has remained closed to the public. OGT has no long term plans for the property. OGT has expressed an interest to sublease the parcel to Monroe County for use as a passive park and a rest area along the Florida Keys Overseas Heritage Trail. These parcels are identified in the Big Pine Key Liveable Communikeys Plan as a future passive recreational facility. Staff has identified $1.2 million in capital improvements funds programmed in the FDOT 5 Year Workprograrn for FY 2012 that may be able to fund capital improvements to this project. This money can be used for the development of scenic overlooks along the Florida Keys Scenic Highway and the Florida Keys Overseas Heritage Trail. Maintenance funds have not been secured for this project, to date. PREVIOUS RELEVANT BOCC ACTION: April 20, 2005 — BOCC provided approval for the staff to pursue a sublease agreement with the State Office of Greenways and Trails for partnership and management of the "Swimming Hole" property on Big Pine Key for development of a passive recreational park. December 17, 2003 — BOCC discussed the status of the "Swimming Hole" property. They directed staff to pursue the development of a passive recreational park in coordination with the state and to report back to the Board. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Request direction on the following: 1) Does the BOCC want us to continue pursuing a sublease agreement at this time with no immediate capital improvement or maintenance allocations? 2) Does the BOCC want us to wait until Fall 2011 to determine the feasibility of funding for capital improvements (restrooms, walkways, kayak launch, parking area, etc.) before bringing the sub -lease forward for BOCC consideration? TOTAL COST: $300 per year (sublease ag eement) INDIRECT COST: trash collection BUDGETED: Yes No X COST TO COUNTY: 300 SOURCE OF FUNDS: REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: April 20, 2005 Division:.__ _Growth Management Bulk Item: Yes X No _ Department: Marine Resources Staff Contact Person: _George Garrett AGENDA ITEM WORDING: Consensual approval for staff to pursue a sub -lease agreement with the State Office of Greenways and Trails for partnership and management of the 'Swimming Hole' property on Big Pine Key for development as a passive recreational park. ITEM BACKGROUND: The 'Swimming Hole' property on Big Pine Key is a disturbed, scarified property with a deep boat basin with a shallow entrance. The property has been used for decades by liveaboard boaters in Pine Channel. In 2003 the Division of State Lands leased the property to the U.S. Fish and Wildlife Service (USFWS). The USFWS subsequently fenced off the property and has pursued back -filling of the boat basin. The Department of Marine Resources (Department) has developed preliminary plans for the site as a passive recreational park, which provides for the needs of the Department, the Overseas Heritage Trail Program, as well as the residents of Big Pine Key. The Department has been attempting to coordinate a transfer of lease from the USFWS to the County for the past year. The Division of State Lands now indicates that it is amenable to leasing the property to the Office of Greenways and Trails, which will in turn sub -lease the property to Monroe County. PREVIOUS RELEVANT BOCC ACTION: At its December 17, 2003 Board meeting the BOCC discussed the status of the'Swimming Hole' property on Big Pine Key. The Board directed staff to pursue the development of a passive recreational park at the'Swimming Hole' property on Big Pine Key in coordination with the State and report back to the Board. CONTRAC'TIAGREEMENT CHANGES: NIA STAFF RECOMMENDATIONS: Approval TOTAL COST: NIA BUDGETED: Yes No COST TO COUNTY: NIA SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty NIA OMB/Purchasing NIA Risk Management NIA DIVISION DIRECTOR APPROVAL: DOCUMENTATION: Included X Timothy J. McGarry Not Required DISPOSITION: AGENDA ITEM # Board of County Commissioners Agenda item Summary Meeting Date: December, 17, 2003 Division: Board of County Commissloners Balk Item: Yes 0 No Department: George R. Neugent AGENDA ITEM WORDING: Discussion and direction to stab as to moving forward on the contractual agreement with Department of fnvironmen ai Protection Dhdslon of State Lands regarding a parcel of propertV on Big Pine Key known as the "Swimming Hole'. ITEM BACKGROUND: PREVIOUS RELEVANT SOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: TOTAL COST: BUDGETED: YES 0 NO 0 COST TO COUNTY: $ Source of Funds: REVENUE PRODUCING: YES 0 NO 0 ANT PER MONTH: YEAR: APPROVED BY: COUNTY AITY 0 OMB/PURCHASING 0 RISK MANAGEMENT 0 APPROVAL: DISMCT II DOCUMENTATION: INCLUDED � TO FOLLOW 0 NOT REQUIRED 0 DISPOSITION: AGENDA ITEM # a 2—r 0-03: 9: 32AM, 0, County of Monroe 2798 Overmoas Highway, Suite 420 MA *hon, Florida 33050 Phone: (305) 289-2805 FAX: (305) 2M2536 Tracy Peters, Senior Acquisition Review Agent Department of Environmental Protection Bureau of Public Land Administration 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Dear Ms. Peters: Mayor Dixie SDist I Mayor No Tem Murray NeIsm Dist. 5 Comm. Charles "Sonny" McCoy, Diet. 3 Caron. George Neugeat. Dist 2 Corms David Rice, Dist. 4 Thank you for your assistance regarding Monroe County's inquiry of proposed uses of the 'swimming hole' parcel located on Big Pine Key. As per our phone conversation on 12/11/03 I am providing additional information describing the County's desire to utilize the property for a variety of recreational and conservation purposes. Please accept this letter as Monroe County's proposal to manage the property. Background: For the last several years the Monroe County Department of Marine Resources has recognized the potential for passive recreational use at the 'swimming hole' site, particularly due to the proximity to Pine Channel and US1. The site is already disturbed, which Iends itself to low - impact limited development. A deep boat basin was dredged at the site decades ago and the site was scarified. Since that time invasive exotics were allowed to take over the uplands and the site remained unmanaged. Liveaboard boaters anchored in the adjacent waters have utilized the shoreline at the site for many years and have generated additional impacts. The site has been used as a dumping grounds for debris both upland and on the adjacent sovereign submerged lands. In the last several years cleanup efforts have occurred, including the removal of debris from the site as well as the removal of the invasive exotics. Most recently the site was used as a rehabilitation area for stranded pilot whales. The results of all these activities is a cleaner site with fewer impacts from the liveaboard boaters in Pine Channel. At this time, however, the site still remains relatively void of vegetation and without a comprehensive plait for future utilization, management or improvements. Identification of County and State Objectives: Over the past year several years state and county entities have considered utilization of the 'swimming hole' site for a number overlapping objectives. The County Department of Marne Resources initially considered using the site as a shoreside facility for a mooring field for the adjacent liveaboard boaters. That objective was cited in the 2001 'Project Proposal for a Keys- Wide Mooring Field System'. Although it has since been determined that under the CARL acquisition requirements the site would not be suitable for such a facility, the Department of Marine Resources recognizes that the site is, however, conducive to providing educational and environmental education to visiting boaters. Marine Resources staff and County Commissioner George Neugent met with CAMA manager Kacki Andrews at the `swimming hole' in April 2002 to discuss the potential of Monroe County managing the site and Ms. Andrews was receptive to our objectives, The Florida Keys Overseas Heritage Trail program, part of the DEP Division of Greenways & Trails, has also shown a strong interest in the `swimming hole' parcel. The development of the bicycle trail includes trailheads to be located at strategic points along USI. FKOHT staff woriang for Monroe County (and fimded by the state) and Florida Park Service staff have determined that the site at the foot of the bridge connecting Big Pine Key to Little Torch Key is optimal as a stopover for the Heritage Trail. This location provides a scenic water overlook as well as being proximate to one of the historic bridges. The Moraine County Planning Department, as part of their current 'CommuniKeys' master plan has included a US I Corridor Area Enhancement Plan for Big Pine Key. That plan, generated by input from the community, includes a passive recreational area at the `swimming hole' site, including the state owned parcel on the north side of US l . The plan calls for limited parking on the northern parcel, with a walk-through underpass connecting pedestrians to the swimming hole' parcel. The Enhancement Plan shares objectives of the above mentioned entities, including: low impact recreation with an emphasis on educational istoncai components. The Enhancement Plan describes a resident -oriented amenity emphasizing environmental awareness, walkways, and sunset viewing. Finally, a recent objective has been identified by the Florida Keys Discovery Program (and supported by Commissioner George Neugent) to relocate a historic house currently located in the interior of Big Pine Key to the `swimming hole' site. The house, the oldest building in Big Pine Key, was used originally as a fishing cabin and is recognized by the Chamber of Commerce as historically significant. The relocation of the house to the `swira ring hole' site would provide an additional cultural and historical component to the project and may be use for display of photographs depicting Flagler's development of the Keys and the construction of the Overseas Railroad. A Comvrehensi_ve Plan: The above described objectives have been identified through communications with a variety of County and State staff. Projects which previously were being conducted separately are being coordinated to create a single proposal which encompasses overlapping objectives for the 'swimming hole' site. Those primary objectives include: 1) provide passive recreation to both residents and visitors 2) provide environmental education to the public 3) provide a cultural and historical component focusing on the Overseas Highway (previously the Overseas Railroad), and the Keys culture of the early 1900's 4) provide a scenic waterfront experience 5) provide a tiailhead for bicyclists using the Overseas Heritage Trail 12—e0-03a 3:12AM: a It is the desire of Monroe County, in cooperation with the State Office of Greenways & Trails, to lease the properties (both the swimming hole parcel and the adjacent parcel on the north side of US1) from the State and manage it for the State to create a small passive area open to the public for the public's enjoyment. The public area would provide only those amenities and structures necessary to hi frll the above outlined objectives. Currently, the vision (see attached conceptual diagram) entails limited parking surrounded by native vegetative buffers on the north parcel connected to the 'swimming hole' parcel by a bicyclelpedwt= underpass. Access to the 'public area' would also be provided for non - motorized craft (i.e. kayaks, canoes) at the dredged basin. The bicycle trail head would be a dominant feature on the southern parcel adjacent to US 1 providing location maps, benches, etc. Further from the highway would be, narrow boardwalks winding through native hammock that would be planted, returning the site to it's natural state. Educational kiosks would be located along the boardwalks informing users of the vegetation and the fragile Keys ecology. A boardwalk would also be provided around the perimeter of the dredged basin and erosion controls would be implemented upgrading the walls of the basin. A small step-down floating dock would be installed, providing access for non -motorized craft. An observation tower is included in the vision, providing a 360 degree overlook of Big Pine Key, Pine Channel and the historic bridge. Information provided at the top of the tower would educate visitors on the history of the Keys, from the native Americans to Flagler to commercial fishing and finally tourism. Numerous funding opportunities exist for this proposed project. Monroe County currently has funding for re -vegetating the northern parcel. The planting plan will be adapted to provide for the proposed parking area and underpass. The County Department of Marine Resources can acquire funding for any sovereign submerged lands needs adjacent to the basin. The Florida Keys Overseas Heritage Trail program will be a major source of finding for upland amenities (walkways, kiosks, etc.). Monroe County Planning Department and State Scenic Highway planners are prepared to begin on a comprehensive management plan for the project. In closing I would like to express that this project is, and will continue to be a partnership between Monroe County and the State's Florida Keys Overseas Heritage Trail Program. Monroe County will be the lead player ensuring that residents and visitors are provided a low -impact public area with emphasis on conservation and education. I look forward to your review and comments on this proposal. Please do not hesitate to call if you have finther questions. Sincerely, Richard Jones Senior Planner Department of Marine Resources. 0 100 200 400 600 800 1 m m &Y-WA BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20, 2010 Division: Growth Management Bulk Item: Yes _ No L Department: Staff Contact Person/Phone #: Christine Hurley, 289-2517 AGENDA ITEM WORDING: Discussion of Monroe County Hurricane Evacuation Clearance Time Final Report, prepared by Reid Ewing, Ph.D. dated September 17, 2010. ITEM BACKGROUND: Objective 101.2 of the Monroe County Comprehensive Plan requires Monroe County to reduce hurricane evacuation clearance times to 24 hours by the year 2010. In November, 2009, County staff and other State of Florida agencies attended a Hurricane Modeling Work group meeting to develop various assumptions (see appendix of report) to be used in the hurricane evacuation modeling. Since development of the initial (MILLER) model used previously for hurricane evacuation modeling, the County also amended the comprehensive plan, adding Policy 216.1.8, which requires phased evacuation with visitors leaving 48 hours, mobile homes leaving 36 hours, and permanent residents leaving 30 hours in advance of tropical storm winds in a category 3-5 storm. Two "assumptions" used previously in the modeling effort have been substantially changed since the initial model was developed including participation rates and flow rates. The initial model used approximately 70% participation (meaning 70% of people would evacuate) and flow rates had been established by FDOT. The DCA retained Dr. Baker to survey approximately 400 residents in unincorporated Monroe County and his data indicated closer to 90% of those surveyed would evacuate. The final report includes data from the new phased model that includes results for a range of participation (70%- 75% and 90%-95%) and it also includes the initial flow rates recommended for each road segment and new flow rates recommended for each road segment submitted by FDOT. The results are as follows: Flow Rates Low Participation (70-75%) High Participation (90-95%) Miller Flow Rates 16 hours 46 minutes 19 hours 42 minutes FDOT new Flow Rates 19 hours 28 minutes 23 hours 20 minutes The next step is for the Department of Community Affairs to submit the Annual Report to the Cabinet by the end of November. The Hurricane Evacuation report will be submitted to them at that time. As you know, ROGO allocations are tied to hurricane evacuation. It is possible annual ROGO allocations may change, pending State review and acceptance of the various assumptions in the report. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: TOTAL COST: n/a INDIRECT COST: BUDGETED: Yes No _ DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing Risk Management DOCUMENTATION: Included Not Required. DISPOSITION: AGENDA ITEM # September 17, 2010 THE Or, TAH Y"'gamwmmasr aae CRY a movowaha. mu­k�y.,p V5611, 10 E'. Phi 215 AAA 544Lake Ovy, fl,?SlfP"e&012-0370 foot $581-8255 Fa.XMIi 59149W7 ReportMonroe County Hurricane Evacuation Clearance Time — Reid Ewing, Ph.D. Professor of City and Metropolitan Planning University of Utah Mr. in jJ .. - The federal government, under FEMA, mandates that all states have comprehensive emergency operations plans for such disasters as hurricanes. The majority of states have a two -tiered approach to emergency planning and response. Evacuation planning, response, and recovery activities are done at the local level (either county or city) while the state is responsible for coordinating local emergency management activities and state -level law enforcement and transportation. The state emergency management agency in Florida plays a larger role in managing and developing evacuation plans than other states since the state of Florida is highly susceptible to hurricanes. Evacuation models are used to estimate clearance time. Clearance time is the total time it will take to evacuate all anticipated evacuees from the vulnerable area following an evacuation order. Clearance time is calculated by adding the amount of time it takes residents of an area to prepare for an evacuation (mobilization response time) and the amount of time it takes them to leave the area (evacuation time). Hurricane evacuation clearance times are used as emergency management tools throughout the state of Florida. However, in Monroe County only, estimated hurricane evacuation clearance times are also used for regulatory and growth management purposes. Specifically, since 1992, Monroe County has used clearance times to control the rate of growth in the county, with State of Florida oversight. In 2005, the Monroe County Year 2010 Comprehensive Plan was amended to establish a three-phase evacuation process, as follows: Policy 216.1.8 In the event of a pending major hurricane (category 3-5) Monroe County shall implement the following staged/phased evacuation procedures to achieve and maintain an overall 24-hour hurricane evacuation clearance time for the resident population. 1. Approximately 48 hours in advance of tropical storm winds, a mandatory evacuation of non-residents, visitors, recreational vehicles (RV's), travel trailers, live- September 17, 2010 aboards (transient and non -transient), and military personnel from the Keys shall be initiated. State parks and campgrounds should be closed at this time or sooner and entry into the Florida Keys by non-residents should be strictly limited. 2. Approximately 36 hours in advance of tropical storm winds, a mandatory evacuation of mobile home residents, special needs residents, and hospital and nursing home patients from the Keys shall be initiated. 3. Approximately 30 hours in advance of tropical storm winds, a mandatory phased evacuation of permanent residents by evacuation zone (described below) shall be initiated. Existing evacuation zones are as follows: a) Zone 1— Key West, Stock Island and Key Haven to Boca Chica Bridge (MM 1- 6) b) Zone 2 — Boca Chica Bridge to West end of 7-mile Bridge (MM 6-40) c) Zone 3 — West end of 7-Male Bridge to West end of Long Boat Key Bridge (MM 40-63) d) Zone 4 — West end of Long Boat Key Bridge to CR 905 and CR 905A intersection (MM63-106.5) e) Zone 5 — 905A to, and including Ocean Reef (MM 106.5-126.5) The actual sequence of the evacuation by zones will vary depending on the individual storm.. The concepts embodied in this staged evacuation procedures should be embodied in the appropriate County operational Emergency Management Plans. The evacuation plan shall be monitored and updated on an annual basis to reflect increases, decreases and or shifts in population; particularly the resident and non-resident populations. [9J-J.012(3)(c)41 Objective 101.2 of the Comprehensive Plan requires Monroe County to reduce hurricane clearance time to 24 hours by 2010. The Miller Model, developed specifically to estimate clearance time for the Florida Keys, has yet to be tested with a phased evacuation scenario to see if Monroe County meets this objective. Our charge is to conduct such a test, while updating the model based on 2000 U.S. Census data, recent building permit data, the best available tourist data, all available hurricane survey results, realistic roadway link capacities, and other data that have become available since the last test. This report estimates clearance time under three-phase evacuation for a worst case Category 5 hurricane. Clearly, estimated clearance time will vary with the assumptions made in the Miller Model update. The matrix in the Appendix at the end of this report sets forth the assumptions proposed by different agencies. This update is based on the assumptions in the Ewing column, which the author views as most realistic. 2 September 17, 2010 Conventional Evacuation Models Conventional hurricane models make use of traditional urban transportation models, the same models used in long-range transportation planning. There are more than 30 transportation modeling tools that have been used for evacuation modeling. In addition, there are also several specialized transportation planning models that were developed specifically for hurricane evacuation events, including ETIS, HEADSUP, and HURREVAC. These three models are described in more detail below. There are three basic ways to model a traffic network: macro, micro and meso. The three models differ in terms of scale (geographic area) and the level of detail (how precise the analysis is). Therefore, "[u]nderstanding the potential of transportation modeling to support decision -making for evacuations hinges on identifying those decisions in the process that best lend themselves to the strengths of a particular modeling approach.s' Macro models are able to represent a large geographic area such as an entire metropolitan area; however, these models cannot represent individual vehicles or people on the road network. A sub -category of macro models that are time sensitive, real-time decision support tools, are becoming increasingly popular. Micro models represent only a portion of a road such as milemarkers along an interstate. These models are helpful in modeling smaller sections of a network such as a specific roadway corridor and are able to calculate precise results since individual vehicles are tracked on the network for a small segment of time (normally 1/10'' of a second). A third type of model, meso models, are able to represent larger geographic areas than micro models and at the same time are able to allow for more precise results than macro models. In addition, these models are able to represent individual roadway links and vehicles on a network; however, they are not able to represent individual lanes on each roadway segment. HURREVAC is a macro model designed by the U.S. Army Corps of Engineers for FEMA to assess hurricane evacuation scenarios. The model estimates the amount of time it will take to evacuate an area and can be used to determine the best time to begin an evacuation. The model uses information from the National Hurricane Center, flood estimates from the SLOSH model, and information on the utility of all shelters in the area. PBS&J developed the ETIS model following Hurricane Floyd. This is a macro -level modeling and analysis system which is primarily comprised of an Internet travel demand forecasting system. The system is able to predict congestion from evacuation traffic as well as traffic flows between states. It allows emergency officials to input the category of storm, the estimated participation rate, tourist occupancy rate, and destination percentages for the counties of concern. With such data, the model is able to output the level of congestion on major highways as well as tables of anticipated vehicle volumes. The Florida HEADSUP program is used to manage traffic proactively during an evacuation. Although HEADSUP uses the same information as ETIS, the program is more detailed and 3 Hardy, Matthrew and Wunderlich, Karl. (2007). Evacuation Management Operations (EMO) Modeling Assessment: Transportation Modeling Inventory. Pg. 19. September 17, 2010 complete. The program is able to automatically process real-time traffic data from 27 strategically located traffic counters throughout Florida in order to analyze evacuation conditions and assist in emergency management decisions. The program is also able to run hourly dynamic travel demand forecasts, impact analyses of contraflow lanes, socio- economic statistics on evacuees, a map -based user interface, a traffic model that gradually loads evacuees onto the roadway network, and an archival capability which records when key events occurred during a hurricane evacuation. The Florida Keys Hurricane Evacuation Model, widely known as the Miller Model, is a deterministic model that supplies a specific model output — clearance time — based on such inputs as the number of dwelling units and capacity of roadway links. Miller Consulting developed this hurricane evacuation model in 2000 to measure and analyze the unique characteristics of the Florida Keys and to determine the clearance time required to evacuate the Florida Keys up to Florida City, based on existing US 1 conditions. The Miller Model was designed to model the behavior of residents and tourists in responding to a mandatory hurricane evacuation order in the Florida Keys and is able to test various scenarios in order to determine the clearance time for each scenario. State -of -the -Art Evacuation Models Traditional urban transportation models are static. They do not take into account the dynamic changes that occur in travel behavior during the evacuation process. The static models assume stable conditions both in demand variables and traffic flows. Haoqiang Fu and Chester Wilmot have developed a sequential logit dynamic travel demand model for hurricane evacuation. The model considers the evacuation order as a time - dependent variable rather than a static variable and thereby analyzes both the impact of the type and timing of evacuation orders. The model divides evacuation time into discrete intervals; the probability of a household evacuating in a particular interval is the product of the probability of evacuating in that time period and the product of the probability of not evacuating in all earlier time intervals. The model is also designed to test phased evacuation. Fu and Wilmot used a small dataset from Southeast Louisiana from Hurricane Andrew to develop their dynamic model. Due to the limitations with the size of this dataset, Fu and Wilmot then estimated a similar sequential logit model using a larger dataset from South Carolina collected after Hurricane Floyd. This model is considered state-of-the-art because it is able to analyze the impact of the type and timing of evacuation orders. Fu and Wilmot used the model to better understand household evacuation behavior under different evacuation order conditions. The model can also be used to study the impact of a variety of factors such as the type and location of the residence, and storm -specific characteristics such as wind speed, forward speed, and the path of the hurricane. Monroe County could benefit from developing a dynamic model for future hurricane evacuation updates. It would provide a more accurate measure of clearance time than the currently used evacuation response curves. 4 September 17, 2010 2. The Miller Model While other modeling options exist and may be pursued in the future, time and budget limitations under our contract led to a decision to update a conventional model developed specifically for the Florida Keys, the Miller Model. The model is a spreadsheet -based program executed in Microsoft Excel. The model is comprised of 39 Excel spreadsheets, 31 of which relate to individual roadway segments. The 31 roadway segments are defined by roadway cross-section, capacity, and mile markers. The model is deterministic, predicting evacuation movement link -by -link, in 2-minute increments, assuming a 30 mph average driving speed. Clearance Time There are different definitions of clearance time, depending on the hurricane model that is utilized. The Miller Model's definition is: "...the time required to clear the roadways of all vehicles evacuating in response to a hurricane situation. Clearance time begins when the first evacuating vehicle enters the road network and ends when the last evacuating vehicle reaches its destination." This definition had to be modified to account for the phasing of evacuation and the tendency of some residents to evacuate spontaneously before an evacuation order is issued. "Clearance time" begins 30hours prior to tropical force winds when mobile home residents are ordered to evacuate (at the beginning of Phase 2), and it ends when the last evacuating vehicle exits, or passes by the northbound entrance to Florida's Turnpike on US 1 in Florida City. For purposes of determining total time to safety for evacuating vehicles, the Miller model adds Dade County travel time to Monroe County clearance time to reflect an approximate time to get from Florida City to the evacuation shelter at Florida International University (FW). This additional time is assumed to be 30 minutes for Category 1-2 hurricanes, and 52 minutes for Category 3-5 hurricanes reflecting addition congestion under the worst case. As we are only interested in time to safety for the most intense hurricanes (Category 5), the updated Miller model adds 52 minutes to Monroe County clearance time. Zone Structure When the Miller Model was developed in 2000, a decision was made to delineate seven evacuation zones, as that was what the Monroe County's Emergency Management Division was using at the time. The Monroe County's Emergency Management Division has since transitioned to five hurricane evacuation zones. Moreover, the South Florida Regional Planning Council has opted to base the zone structure of its evacuation model on census geography, which simplifies model updates. For this application, we held to the seven -zone structure of the Miller Model. The seven zones are defined by mile makers: 0 September 17, 2010 Table 1. Mile Marker Limits for each Evacuation Zone Evacuation Zone Mile Marker Lower Keys 1 0-13 2 13-46 Middle Keys 3 46-64 Upper Keys 4 64-84 5 84-95 6 95-113 7 106-ICWW To update inputs to the Miller Model based on the 2000 Census, it was necessary to determine how census geography relates to the seven Miller Model evacuation zones. We used a combination of maps provided in the 2000 Miller Model Report and descriptions of the zonal boundaries to produce the following correspondence table (Table 2). Table 2. Zone Structure for Updated Miller Model (2008) Zone „'22 ` , , tl'' 1!1 (l 1 Census Tract } , } , s , , ! i V Ujl t t Bl+ck Group' !'t i4�\� 1 Percentage f Block - Zone 1 (Key West to Saddle Bunch Channel Bridge - mm 0-13) 9726 All block groups 100% 9725 All block groups 100% 9724 All block groups 100% 9723 All block groups 100% 9722 All block groups lo0% 9721 All block groups 100% 9720 All block groups 100% 9719 All block groups 100% 9718 All block groups 1000 9717 All block groups 100% Zone 2 (Saddle Bunch Bridge to Knight Key Channel -nun 1346) 9716 All block groups 100% 9715 All block groups 1000 9714 All block groups 100% Zone 3 (Knight Key Channel to Long Key Viaduct - mm 46-64) 9713 All block groups 100% 9712 All block groups 1000 9711 All block groups 100% 9710 2 100% 6 September 17, 2010 9710 3 100% Zone 4 (Long Key Viaduct to Whale Harbor Channel - nun 64-84) 9710 1 100% 9709 1 40% 9709 2 45% 9709 3 100% 9709 4 100% 9709 5 100% Zone 5 (Whale Harbor Channel to Mslemarker 95 - mm 84-95) 9709 1 60% 9709 2 55% 9708 All block groups 100% 9707 All block groups 100% 9706 3 100% Zone 6 (along U.S. 1 - mm 95-113) 9706 1 100% 9706 2 100% 9705 All block groups 100% 9704 All block groups 100% 9703 All block groups 100% 9702 1 40% 9702 3 60% Zone 7 (along CR 905 - mm 106-ICWW) 9702 1 60% 9702 2 100% 9702 3 40% 9701 All block groups 100% Inputs The Miller Model requires the following inputs related to housing, evacuee behaviors, and road network performance. • How many dwelling and tourist units exist in the evacuation area; • What fraction of the dwelling and tourist units will be occupied at the time of evacuation; • How many people will leave their dwellings to go someplace safer (i.e., evacuation rate or evacuation participation rate); • When evacuees will leave, with respect to when evacuation orders are issued; • What effect a policy of phased evacuation will have; 7 September 17, 2010 • Where the evacuees will go, in terms of ultimate destinations inside or outside the county; • How many vehicles will be used in the evacuation; • Where evacuating traffic will load onto the road network; • How much background traffic will be using the road network at the same time; • How much traffic can be handled by critical links in the road network; The following chapter outlines sources of data, methods of estimation, and values for each of the above used in our update of the Miller Model. 3. Update of the Miller Model Numbers of Dwellings and Tourist Units Miller Model Evacuating population comes from three types of units: 1) permanent dwelling units, 2) mobile home units, and 3) tourist units. The 2000 run of the Miller Model began with the official number of dwelling units as of 1990 from the U.S. Census. Monroe County Planning Department then provided numbers of new units based on certificates of occupancy (CO) issued each year. The number of COs was summed, cumulatively, from 1990 to 1999. After 1999, the methodology followed by the County shifted to the potential number of dwelling units available under the permitting guidelines of the Rate of Growth Ordinance (ROGO). Updated Miller Model The number of permanent dwelling units and mobile homes was determined from the 2000 U.S. Census, updated to reflect new dwellings occupied between 2000 and 2008 (see Tables 3 and 4). Permanent dwellings in 2000 included all census categories of permanent structures from single-family detached to multifamily with 50 or more units. Mobile homes included census categories of "mobile home" and "RV, boat, van, etc." The decision to include the latter with the former was prompted by belief that permanent residents living in RVs (many in mobile home parks), boats, vans, etc. would behave more like mobile home residents than tourists in an evacuation. Permit data for new residential units issued from 2000 through 2008 were provided by the Monroe County Building Department and the equivalent departments of the five incorporated cities in Monroe County —Key West, Islamorada, Key Colony Beach, Layton, and Marathon. Post-2000 unit counts were added to 2000 unit counts to obtain current estimates of dwelling units by evacuation zone. Tourist unit data was collected from the Department of Profession and Business Regulation. This department licenses hotels, motels, bed and breakfasts, timeshares and vacation rental 8 September 17, 2010 units — all of which were included in the update. The data from DPBR were geocoded by Bryan Davisson, the GIS Planner in Monroe County's Growth Management Department. Table 3. Permanent Dwelling Units in 2000, constructed and occupied between 2000-08, and total in 2008 Zone 2000 2000-08 Key West 2000-08 Islamorada 2000-08 Marathon 2000-08 Key Colony Beach 2000-08 Layton 2000-08 County 2008 Total 1 14,509 319 280 15,108 2 6,143 360 6,503 3 6,972 124 170 47 7,313 4 1,880 21 3 1,904 5 5,095 169 42 5,306 6 5,093 242 5,335 7 1,310 0 1,310 Total 41,002 319 169 124 170 21 974 42,779 Table 4. Mobile Home Units in 2000, permitted between 2000 and 2008, and in 2008 Zone 1 2 2000 2,496 1,751 2000-08 2008 2,496 1,751 3 1,940 1,940 4 720 2 722 5 1,219 1 1,220 6 2,459 1 2,460 7 8 8 10,593 4 10,597 E September 17, 2010 Table 5. Tourist Units in 2008 Zone 2008 lodging 2008 vacation rental 2008 timeshare 2008 Total 1 8,148 0 0 8,148 2 491 23 0 514 3 2,997 29 19 3,045 4 1,734 2 1 1,737 5 576 0 0 576 6 1,960 3 14 1,977 7 36 0 19 55 15,942 57 53 16,052 Occupancy Rates Miller Model The Project Steering Committee (PSC) identified f°% Occupancy of Dwelling Units" as a critical variable. The PSC used 1990 Census data to determine the occupancy rates during the month of April (when the Census data are collected). For tourists, the occupancy rate utilized was from the 1991 Hurricane Evacuation Analysis of the Monroe County Comprehensive Plan and the 1995 update, both prepared by PBS&J. The occupancy was estimated as 45% on the low end and 75% on the upper end. The Project Steering Committee studied these numbers and decided to estimate the occupancy rate by subregion of the Keys. Actual rates, based on specific knowledge of the Project Steering Committee members, were used whenever available. For example, an occupancy rate of 72% was used for Key West since members knew that overall occupancy rate here was higher than the rest of the county. Updated Miller Model Occupancy rates for permanent dwellings were determined by zone from the 2000 Census. Occupancy rates for the county as a whole appear to have declined by about 20 percent between the 2000 Census and the 2008 American Community Survey. We therefore prorated 2000 occupancy rates by zone to account for this decline. Table 6.Occupancy Rates for Permanent Dwellings and Mobile Homes (2000 and 2008 estimate) RM September 17, 2010 Zone Percent Occupied Housing Units — 2000 Census Percent Occupied Housing Units — Adjusted for 2008 American Community Survey 1 84% 67% 2 67% 54% 3 59% 47% 4 44% 35% 5 58% 46% 6 65% 52% 7 34% 27% To update tourist occupancy rates, we referred to Smith Travel Research's latest Trend Report, submitted annually to Monroe County's Tourist Development Council. Occupancy rates have remained relatively constant over the years. During the hurricane season (June 1 through November 30), July is the highest occupancy month, while September is the lowest. We used July 2008 values (see Table 7). This is a worst -case assumption, since the peak of Atlantic hurricane activity is in September, the month with the lowest occupancy. Table 7. Occupancy Rates for Tourist Units (July 2008) Zone Percentage Occupied Units 1 (Key West) 82% 2 71% 3 71% 4 71% 5 71% 6 (Key Largo) 77% 7 71% Evacuation Participation Rates Miller Model To estimate evacuation participation rates, the Miller Model relied heavily on a survey conducted by Dr. Carnot Nelson in 1989. The assumed evacuation participation rates are shown in Tables 7 and 8. All are taken from Dr. Nelson's behavioral analysis, except 11 September 17, 2010 participation rates for tourist units which were assumed to be 100%. Dr. Nelson had suggested lower numbers. Nelson's survey was done before Hurricane Andrew, and it simply asked people what they intended to do in response to a number of hypothetical hurricane threats. Intended -response data may be unreliable predictors of actual evacuation behavior. Much more information has become available since Nelson's pre -Andrew survey (Baker 2000): • A University of Florida group conducted a survey following Andrew, not only asking what people did in Andrew, but also using the very same intended -response questions previously used by Nelson. • James Mattson conducted a survey following Andrew, dealing with Andrew response and intended response in future storms. • Dr. Earl Baker did a survey following Andrew for the National Science Foundation that documented response in Andrew, perceptions of vulnerability, confidence in construction, and intended responses in future threats. • Following Georges, FIU conducted a survey documenting response to Georges as well as asking about certain subjects that could have a bearing on future response. • Also following Georges, the Monroe County School Board had public school students take home a questionnaire asking what their households did in Georges. • Dr. Earl Baker conducted interviews in the Lower Keys as part of a post -Georges survey for the Corps of Engineers and FEMA. It dealt with response to Georges as well as vulnerability perception, concerns about traffic congestion, and future response. • Dr. Earl Baker conducted an additional survey in the Lower Keys, dealing with response to Georges but also posing several hypothetical threat scenarios and evaluating the effect on intended response of roadway improvements and having refuges of last resort in Key West. • Following Hurricane Ivan, a Post -Ivan Behavioral Analysis was prepared for the Federal Emergency Management Agency and the U.S. Army Corps of Engineers in September 2005. A total of 200 interviews were conducted in Monroe County. The questionnaire asked questions regarding evacuation decisions and behavior, home mitigation and/or preparation, household circumstances, economic impacts, and household information needs. • The South Florida Behavioral Survey was conducted in 2007-2008 as part of Statewide Regional Evacuation Study Program. The primary aim of the survey was to provide data to assist in deriving evacuation behavioral assumptions for transportation and shelter analyses. In each non -coastal county of the state 150 interviews were conducted randomly by telephone. In each coastal county of the state, 400 interviews were conducted. 12 September 17, 2010 Baker Study Based on actual and intended responses to hurricanes, from several surveys after Hurricanes Georges, Andrew, and Irene, Professor Earl Baker at Florida State University derived most probable evacuation participation rates for a number of hurricane threat scenarios. Earl "Jay" Baker is an associate professor of geography and an expert in the field of hurricane evacuation. His research is focused on how people respond to warning and evacuation orders and how emergency managers are able to use forecasts to implement evacuation plans. He has studied peoples' vulnerability perceptions and hurricane preparedness in most areas of the Gulf of Mexico and Atlantic coasts. Table 8 provides Baker's best estimates of participation rates for Category 5 storms approaching the Keys from the south, posing a greater risk to the Lower Keys. Table 8 also provides his best estimates of participation rates for storms at latitudes similar to Andrew, posing a greater risk to the Upper Keys. The table assumes mandatory evacuation orders and aggressive actions by public officials to educate the public about appropriate responses. Table 8. Evacuation participation rate assumptions for Category 5 hurricanes approaching from different latitudes, aggressive mandatory evacuation ordered and improved public education regarding vulnerability (Baker 2000) from latitudes south of Key West from latitudes similar to Andrew Lower Keys 90 35 Middle Keys 95 95 Upper Keys 95 100 South Florida Behavioral Survey The 2008 South Florida Behavioral Survey asked whether respondents intended to evacuate their homes for some place safer if mandatory evacuation notices were issued due to potential flooding (see Table 9). The question was asked for both Category 3 and 5 hurricanes. Results weren't presented for Category 4 hurricanes. The Category 5 results are most relevant to this worst -case analysis. Table 9. Would Leave Home if Mandatory Evacuation Notice is Given for a Category 5 Hurricane N Yes No Don't know/depends Yes plus Don't know/depends Monroe 400 88% 8% 4% 92% Key West 100 89% 90/0 3% 92% Lower Keys 100 91% G% 3% 94% 13 September 17, 2010 Middle Keys 100 90% 7% 3% 93% Upper Keys 100 84% 80/6 8% 92% Perhaps a better predictor of evacuation participation than intended response to hurricanes is perceived vulnerability to both wind and water in hurricanes of different intensities. Table 10 reports Monroe County responses to the question of whether respondents would remain safe in a Category 4 hurricane (Category 5 results weren't released). Table 10. Safe from Wind and Water in a Category 4 Hurricane N Yes No Don't know/depends Monroe 400 15% 80% 5% Key West 100 19% 76% 4% Lower Keys 100 11 % 81 % 7% Middle Keys 100 15% 83% 1% Upper Keys 100 13% 79% 8% Monroe County residents were also asked if they left home during Hurricanes Georges (a Category 2), Ivan (a tropical depression as it approached Florida), and Wilma (a Category 2 hurricane in Monroe County). Hurricane Georges prompted 38% of households in the Monroe County region to evacuate, with the Middle Keys reporting the highest participation (50%). Hurricane Ivan caused 28% of households in Monroe County region to evacuate, with the Upper Keys reporting the highest participation (34%). Hurricane Wilma caused 32% of households in Monroe County to evacuate, with the Lower Keys reporting the highest participation (37%). These results are for low -intensity hurricanes; no Category 4-5 hurricanes have hit the Keys in recent years. Updated Miller Model The worst case is a Category 5 hurricane that approaches from latitudes below Key West, with aggressive mandatory evacuation ordered and improved public education regarding vulnerability (see Table 11). Baker suggests that 90-95% of residents might evacuate under such circumstances. While no clear geographic pattern of evacuation compliance emerges from the various surveys, we will go an upper bound evacuation participation rate equal to Baker's recommended rates. In this worse case, a 100% evacuation rate will be assumed for mobile home and tourist units. Actual evacuation rates during past hurricanes have reportedly been much lower than this worst case. True, these were less intense hurricanes than posited here, but it seems likely that respondents overstate their willingness to evacuate when asked to speculate in surveys. We 14 September 17, 2010 will therefore conduct a sensitivity test of clearance time, assuming a lower bound evacuation participation rate of 70-75% for permanent dwellings in response to a more typical hurricane. Table 11. Category 5 Storm Evacuation Participation Rates Mobile Homes Tourist Units Other Units Lower Keys Zones 1 & 2 100% 100% 70-90% Middle Keys Zone 3 100% 100% 75-95% Upper K Zones 4 5 6& 7 100% 100% 75-95% Evacuation Timing Evacuation timing refers to when evacuees depart their residences. While some spontaneous evacuation occurs, it is unusual for more than 15% of the eventual evacuees to have departed before officials issue evacuation orders. Departures then occur depending upon the urgency perceived by evacuees. Miller Model The Miller Model uses tables to represent the rate at which evacuating traffic enters U.S. 1. The exact number of hours over which the traffic is loaded is not terribly important. The main thing is that the scenarios reflect a range of plausible response distributions, based on the timing of evacuation orders prior to landfall, to assess the sensitivity of clearance times to those variations. The Miller response curves don't reflect the fact that some evacuees will leave before an evacuation order is issued. That is clearly wrong. Dr. Baker calls 10% spontaneous evacuation a conservative figure. Baker Study Dr. Baker developed the curves in Figure 1. They indicate how promptly evacuees depart when evacuation orders are issued under three scenarios of urgency. "Late, normal, and early" refer to when evacuation orders were issued relative to expected arrival of a hurricane. These curves assume 10% spontaneous evacuation even before the evacuation order is issued. Figure 1. Early, normal, and late evacuation timing curves ELI September 17, 2010 Typical Evacuation Timing Cu 100 so cc LU V80 CD Lj m 40 .' U 2D ." W . o 6 4 2 0 2 4 6 8 10 12 14 16 IS 20 22 24 Hours Before/After Evacuation Order Late - Normaty- Early Based on evacuation response to Hurricanes George and Andrew, Baker developed the two- day curve in Figure 2. This response curve accounts for early evacuees even before evacuation orders are issued. At least for strong hurricanes, Baker concluded that such a curve could apply to Monroe County. ;100 W 20 0 Figure 2. Two-day evacuation timing response curve 0 2 4 8 8 W 12 14 18 18 20 22 24 26 28 30 32 34 36 Hours After Evaaiabon Notice 16 September 17, 2010 Updated Miller Model The three Baker curves in Figure 1 seem most applicable to evacuation scenarios for Monroe County, where a mandatory evacuation order is issued early, at a normal time, or late. The fact that Baker provides three different curves allows us to perform sensitivity tests on evacuation timing assumptions. One anomaly associated with the Baker curves is that the clearance time cannot be less than 24 hours when an evacuation order is issued early, which is arguably the scenario which involves the least risk to the public. Therefore, in assessing clearance time, primary emphasis will be placed on the late response scenario. Effect of Phased Evacuation Miller Model The 2000 Miller Model was not used to test phased evacuations. All residents and tourists were assumed evacuate at the same time. Updated Miller Model In 2005, Monroe County adopted a mandatory phased evacuation policy as part of the update of its comprehensive plan. This phased evacuation requires that all tourists, recreational vehicles, military and live aboard vessels begin to evacuate from the county 48 hours in advance of tropical force winds. Next, mobile homes and special needs residents will receive the order to evacuate 36 hours in advance of tropical force winds. Last, the residents living in permanent dwelling units will receive the order to leave 30 hours in advance of these winds. The Miller Model had not been used to test phased evacuations before and therefore needed to be adapted. Phase 1 evacuation was modeled independently to determine if all vehicles would clear by the time Phases 2 and 3 begin. No data were available on the response of tourists to evacuation orders. Assuming that tourists respond as do permanent residents, the Miller Model predicts that Phase 1 would clear in 14 to 16 hours. This means that very few evacuating tourists would likely conflict with Phase 2 evacuees, and none at all with Phase 3 evacuees. Since Phase 3 is the critical phase, we will assume that all tourists have left the Keys in the 18 hours between the Phase 1 and Phase 3 evacuation orders. The Phase 2 evacuation of mobile home residents is another matter. They will not be ordered to evacuate until 36 hours before tropical force winds, and hence, many will be on the road at the same time as permanent dwelling residents. This overlap was handled by having two different response curves, one for mobile home residents beginning 36 hours before tropical force winds, and another for permanent dwelling residents beginning 30 hours before tropical force winds. The two groups of evacuees were assumed to follow the same response curve, but with a six hour time lag in the case of the permanent dwelling units. The Miller Model had to be significantly modified to represent a phased evacuation. 17 September 17, 2010 Destinations Miller Model Based on Dr. Nelson's research, the Miller model provides four possible destinations for the non -tourist population: 1) Monroe County public shelter, 2) Monroe County motel, 3) Monroe County friend or relative, and 4) Out of Monroe County. Baker Study Based on several surveys of actual and intended behavior after Hurricanes Georges and Andrew, the Baker 2000 report indicates the most likely percentage of evacuees from the three different areas of the Keys who will go to destinations outside of Monroe County for different categories of storm intensity (see Table 12). Table 12. Planning assumptions for percent of evacuees leaving Monroe County, aggressive mandatory evacuation ordered throughout Monroe County for all categories Cat 3-4 Cat 5 Lower Keys 80 90 Middle Keys 90 95 Upper Keys 95 100 South Florida Behavioral Survey The 2008 survey asked respondents where they would go if they evacuated for hurricanes of different intensities. Results for Category 5 hurricanes are shown in Table 13. Table 13. Evacuation Destination (Category 5) n Own Own county Someplace else Someplace Don't neighborhood in Florida outside know Florida 1{6 is ,q�/�t,(''" ?70 Key West 72 70/6 13% 52% 14% 14% Lower Keys 79 20/a 7% 69% 19% 3% Middle Keys 77 1% 1% 71% 21% 6% Upper Keys 76 2% 6% 68% 15% 8% Data are available on the destinations of evacuees during three previous hurricanes (Tables 14-16). The great majority of evacuees leave the county. Residents of Key West are most IN September 17, 2010 likely to leave the county, while residents of the Upper Keys are least likely to leave the county (though a majority still do). Table 14. Destinations of Evacuees (Hurricane Georges) n Own Own county Someplace else Someplace Don't neighborhood in Florida outside know Florida 11""I'VR"i"I"i '15W 5 W PAYSIQ Key West 20 2% 5% 91% 1% 0% Lower Keys 18 00/0 2% 68% 25% 5% Middle Keys 26 1% 19% 79% 1% 0% Upper Keys 16 8% 37% 46% 8% 00/0 Table 15. Destinations of Evacuees (Hurricane Ivan) n Own Own county Someplace else Someplace Don't neighborhood in Florida outside know Florida Mot�ro..... ..... .... 12%, 31,�,2li ,,,, Key West 22 0% 3% 93% 4% 00/0 Lower Keys 25 5% 1% 75% 90/0 10% Middle Keys 17 0% 8% 79% 12% 00/0 Upper Keys 20 0% 24% 56o/. 20% 00/0 Table 16. Destinations of Evacuees (Hurricane Wilma) n Own Own county Someplace else Someplace Don't neighborhood in Florida outside know Florida ... x "A' c11 ""1,,Q,q, ,� 0, Key West 20 4% 4% 91% 1 % Lower Keys 27 0% 3% 84% 11% 2% Middle Keys 13 0% 11% 89% 00/0 0% Upper Keys 22 0% 30% 62% 8% 0% 19, September 17, 2010 Updated Miller Model The survey data indicate that the majority of evacuees from Monroe County would leave the county and evacuate to another county within the state of Florida. Beyond this generalization, the data are difficult to interpret. The intended response and actual response questions point in different directions, with the percentages intending to leave the county increasing as you move north from the Lower Keys to Middle Keys to Upper Keys. But the percentages actually leaving during past hurricanes decrease as you move north. Most likely the small numbers of evacuees during past hurricanes are atypical of the larger populations. We will assume that 90% of evacuating residents from Lower Keys (Zones 1 and 2) will leave the county, that 95% of evacuating residents from the Middle Keys (Zone 3) will leave the county, and that 100% of evacuating residents from the Upper Keys (Zones 4 through 7) will leave the county. These assumptions are in line with Dr. Baker's recommendations and the original Miller model. 100% of tourists are assumed to leave the county. Vehicle Use Not all vehicles available to households are used in evacuations. Vehicle use is predicted well by hypothetical response data. Miller Model The source of the vehicle usage rates used in the Miller Model is not included in their report. It is assumed that 69 to 71 % of available vehicles will be used. Baker Study Dr. Baker states that the normal range for vehicle usage is 65% to 75%. Based on behavior during Hurricane Georges, the Baker 2000 report recommended that for planning purposes, it be assumed that 701/o of the vehicles available to evacuating households will be used, and 10% of those households will pull a camper, trailer, or boat or take a motor home. South Florida Behavioral Survey The 2008 survey asked how many vehicles would be available to a household that could be used to evacuate, and how many vehicles would a household take if they evacuated? As can be seen from Table 17, the percent of available vehicles that would be used in an evacuation varies from a low of 72% in the Lower Keys to a high of 91% in Key West. September 17, 2010 Table 30. Vehicle Availability and Use During an Evacuation N Available Vehicles % of available % of vehicles used in vehicles used households evacuation in evacuation with no vehicle 400 t «�. i s 1 9, sus+`,� rr>' " ����' i ' ti 7 s «s s t ,t ` �1�4,, Key West 100 1.5 1.5 91 % 10% Lower Keys 100 2.6 1.3 72% 2% Middle Keys 100 1.8 1.3 79% 2% Upper Keys 100 1.8 1.4 80% 3% Updated Miller Model The South Florida survey data are the most recent, and we believe the most accurate data available. The one exception is the very high vehicle usage rate for residents of Key West, out of line with all the other data available. Baker reports that residents of Key West used 1.11 vehicles per evacuating household during Hurricane Georges. That amounts to about 80% of the vehicles owned by households in Key West. We therefore assumed the following vehicle usage rates for residents: 80% vehicle usage for Key West (Zone 1); 72% vehicle usage for the rest of the Lower Keys (Zone 2); 79% vehicle usage for the Middle Keys (Zone 3); and 80% vehicle usage for the Upper Keys (Zones 4-7). We assumed 100% vehicle usage rates for tourists. Background Traffic Background traffic is the measure of vehicles using the roadways for reasons other than hurricane evacuation. The Miller Model defines background traffic as including: out -of - County traffic (business trips and recreational trips), non -evacuating vehicles conducting hurricane preparation trips, typical day commuting trips, etc. In sum, this traffic is comprised of non -evacuating vehicles on the road. Background traffic increases the level of traffic on the roadway system and therefore, has a direct effect on clearance time. This traffic is comprised of non -evacuating traffic and includes trips to run errands and buy hurricane supplies. Miller Model The model uses approximations of background traffic based on recorded traffic volumes. This background traffic affects processing time through each of the 31 links and, eventually, this background traffic declines as the evacuation occurs and decreases to zero background vehicles at the end of the evacuation. For example, if a 12 hour response curve is selected for modeling purposes, the background traffic is 100% of the actual recorded count at hour one of the evacuation and zero at hour 12. A uniform distribution is assumed for the rate of decline of the background traffic. 21 September 17, 2010 Updated Miller Model We have no basis for refinement of the Miller Model's background traffic assumptions. Capacity of Critical Links Miller Model The Miller Model uses 31 outbound evacuating links. It relies on the critical link concept. This concept means that the evacuation time is mainly affected by the link with the highest demand to service volume ratio. This link experiences the longest delay due to the overload of evacuating vehicles. This link, the critical link, is not static and can shift due to either demand changing by link or from capacity improvements to a link. A critical variable in the determination of evacuation time is the assumed capacity of roadway links. The Miller Model takes the capacity of uninterrupted flow highways (essentially freeway quality roads) and makes downward adjustments to account for driveways and intersections. There are two potential problems with this procedure. First, U.S. 1 isn't an uninterrupted flow facility but rather a state signalized arterial, whose capacity is determined using different formulas. Second, the downward adjustments are essentially arbitrary as opposed to empirically based. FDOT Flow Rates Based on site -specific capacity studies and observational studies of actual hurricane evacuations, the Florida Department of Transportation (FDOT) has recommended the use of capacity assumptions that are generally below those of the original Miller Model. Values are compared in Table 31. Updated Miller Model The same 31 links will be used in our analysis. Using roadway cross sectional data supplied by the Florida Department, we confirmed the number of evacuating lanes for each link in the Miller Model. Given the critical nature of the maximum flow rates assumed, we conducted runs with both Miller Model maximum flow rates and the newer FDOT maximum flow rates. Results are reported for both in the final section. 22 September 17, 2010 Table 31. Maximum Sustainable Flow Rates per Hour Link Name Miiemarkers Configuration Evacuation Outbound Lanes Miller Flow Rates FDOT Flow Rates From To Per Lane Total Per Lane Total Al 2.0 4.0 41- 2 900 1,800 900 1,800 A2 4.0 9.0 41-1) 2 900 1,800 900 1,800 B 9.0 17.0 21. 1 1,350 1 1,350 1,100 1,100 C 17.0 22.0 21. 1 1,350 1,350 1,100 1,100 D1 22.0 24.0 21. 1 1,350 1,350 1,100 1,100 D2 24.0 25.0 3L 1 1,350 1,350 1,100 1,100 D3 25.0 30.0 2L 1 1,350 1,350 1,100 1,100 E 30.0 34.0 2L 1 1,050 1,050 1,050 1,050 F1 34.0 35.2 2L 1 1,350 1,350 1,100 1,100 F2 35.2 36.5 41.1) 2 1,350 2,700 1,100 2,200 F3 36.5 37.5 2L 1 1,350 1,350 1,100 1,100 G 37.5 47.0 2L 1 1,500 1,500 1,200 1,200 H1 47.0 48.0 2L 1 1,350 1,350 11100 11100 H2 48.0 50.2 4L 2 900 1,800 900 1,800 11 50.2 50.8 5L 2 900 1,800 900 1,800 12 50.8 54.0 41-1) 2 900 11800 900 1,800 11 54.0 54.5 41-1) 2 900 1,800 900 1,800 J2 54.5 58.0 21. 1 1,350 1,350 1,100 1,100 K 58.0 74.0 21. 1 1,350 1,350 1,100 1,100 L 74.0 80.0 21. 1 1,350 1,350 1,100 1,100 M1 80.0 83.5 31. 1 1,350 1,350 1,100 1,100 M2 83.5 85.6 21. 1 1,350 1,350 1,100 1,100 N 85.6 90.0 21. 1 1,350 1,350 1,100 1,100 0 90.0 100.0 41-1) 2 900 1,800 900 1,800 P 100.0 105.0 41-1) 2 900 1,800 900 1,800 Q 105.0 106.3 41-1) 2 900 118W 900 1,800 R1 106.3 126.5 2L/4L 1 1,500 1,500 1,200 1,200 R2 126.5 HEFT 41-1) 2 900 1,800 900 1,800 S 106.3 Int CR 9051 CR 905 A 21. 1 600 600 11100 11100 T Ocean Reef Int CR 9051 CR 905A 2L 1 1,350 1,350 1,100 1,100 U Int CR 905 I CR 905A US 1 1 21. 1 1,350 1,350 1 1,100 1,100 LEGEND: 23 September 17, 2010 2L = 2u4L = 3L = 4L = 4LD = 5L = Additional Clearance Time to Reach Shelter Miller Model The Miller Model added a fixed 30 minutes (category 1 or 2) and fixed 52 minutes (category 3-5) to the clearance time for the trip from the Monroe County boundary to the public shelter at FTU. One of the weaknesses of the Miller Model is that it assumes a fixed time for all vehicles to travel to the FIJ shelter and it does not include the effects of traffic from Miami - Dade County. The South Florida Regional Planning Council was charged with creating a model to address this deficiency. However, that model is not available at the time of this writing. Updated Miller Model Due to the limited scope and budget of our project, we assumed the fixed 52 minute travel time from the county line to the FIU shelter. More precise estimates of travel time will be available in the future when the Statewide Regional Evacuation Study is completed. Clearance Time Estimates Table 32 provides clearance times for the different assumptions. The "Low Participation" rates are the suggested lower bound rates for permanent dwelling units in a Category 5 hurricane coming from the southeast (70-75%). The "High Participation" rates are the suggested upper bound rates for the same scenario (90-95%). The two maximum flow rates are the Miller Model's assumed rate for 2000 and FDOT's downward adjusted rates. In Table 32, clearance time is measured relative to the evacuation order for permanent dwelling unit residents, 30 hours in advance of tropical force winds. The updated Miller Model assumes time zero is 36 hours before tropic force winds. Therefore, we subtracted six hours from the Miller Model clearance time outputs to arrive at the values in Table 32. Table 32. Clearance Times (relative to the permanent unit evacuation order) Low Participation (70-75%) High Participation (90-95%) Miller Flow Rates 16 hours 46 minutes 19 hours 42 minutes FDOT Flow Rates 19 hours 28 minutes 23 hours 20 minutes September 17, 2010 PBSW Hurricane Evacuation Analysis Wc.1991(1990 Census) Same behavioral parameters of 1989 ACOE 2000 Miller Model 11990 Census & PSC) Final Report In 2001 2004 Miller Update j2000 Census) 2008 Statewide Regional udy Evacuation StProgram south Florida Behavioral Survey Report Sample sine (num) Ken Metcaff Miller Model ary Analysis • Summary of 2000 Census Reid Ewing Recommendations Report 7 evac zones ' 7 evac zones 7 evac cones ' ; 7 evac zones Zone 1 - 2.44 Zwe 1 - 2.44 Zone 1- 244 Zone 1 - 2.35 2-2.31 2-2.31 2.Z31 2-2.21 3-2.25 3-2.25 3-2.25 3-2.16 4-1.97 4-1.97 4-1.97 4-2.08 5-2.27 5-2.27 5-2.27 5-2.27 Number of People per 6 - 227 6 - 2.27 6 - 2.27 6 - 227 M.H. Unit 7 - 2.11 7 - 2.11 7 - 2.11 7 -1.74 Zane 1- 2.44 Zone 1 - 2.44 Zone 1- 2.44 Zone 1- 2.35 2-2.31 2-2.31 2-2.31 2-221 3-2.25 3-2.25 3-2.25 3-2.18 4-1.97 4-1.97 4-1.07 4-2.08 5-2.27 5-2.27 5-227 5-227 Number of People per 6 - 2.27 6 - 2.27 6 - 2.27 6 - 227 Pemranerri Unit 7-2.11 7-2.11 7-2.11 7-1.74 Zone 1 - 2.90 Zone 1 - 2.90 Zone 1- 2.90 Zane 1.2.90 2-3.76 2-3.76 2-3.76 2-176 3.2.75 3-2.75 3-2.75 3-2.75 4-2.53 4-2.53 4-253 4-2.53 5-12.80 5-3.00 5-3.00 5-3.00 6 -12.90 6 - 3.00 6 - 3.00 6 - 3.00 of People per Number of 7 -12.90 7 - 3.00 7 - 3,00 7 - 3.00 Tourist Zara 1-1.80 1 -1.35 1 -1.36 Key West 1.5 Key West Vehicle/occupied 1 •1.36 2-1.80 2-1.76 2-1.74 1.5 unit 2.1.73 3 -1.82 Zane 1 -1.38 4-2.00 2-1.73 5 - 2.00 3 -1.39 3 -1.56 Lower 2.6 Lower 1.3 3 -1.56 3 -1.80 Number of Vehicles per 6 - 2.00 4 -1.63 Unit 7 - 2.00 4 -1.65 4 -1.65 Middle 1.8 Middle 1.3 5 -1.69 4 -1.34 6 -1.83 5 -1.76 5 -1.71 Upper 1.8 Upper 1.4 7 -1.43 5 -1.75 6 -1.61 6 -1.83 (avabW vehicles IveWes 6 -1.83 26 September 17, 2010 7 -1.58 7 -1.43 -page 65) used in 7 -1.44 evacuation - page 65) Zone 1 -1.04 Zone 1-1.04 Zone 1- 0.83 2-1.04 1-1.04 2-1.04 2-1.23 3-1.05 3-1.05 3-1.23 4-t.10 2-1.04 4-1.10 4-1.13 5-1.10 3-1.05 5.1.10 5-1.13 Number of Vehicles per 7 -1.10 4 1.10 7 -1.10 7 1.55 Tourist Unit 5 -1.10 6 -1.10 7 -1.10 % Par"alion of M.H. 95% 95% 95% 100% Units Zane 1 - 60% Zone 1 - 60% Would leave if Woufd Zane 1- 70-90% 2 - 60% 2 - 60% mandatory leave if 2 - 70 M 3 - 80% 3 - 80% en watio n notice mandatory 3 - 76-95% 4 - 85% 4 - 86% is given for a Cat evacuation 4 - 75.95% 5 - 85% 5 - 85% 3 Hurricane (page notice is 5 - 7"5% 6 - 85% 6.86% 36) given for a 6 - 75.95% 60% lower keys (1 7 - 85% 7 - 85% Key West 77% Cat 5 7 - 75-95% % Participatom of &2) Lower 69% Hurdcerne Category 5 Stonn Other Units 80% middle keys (3) Middle 74% (page 36) 85% upper keys (4-7) Upper 71% Key West 89% Lower 91% Middle 90% Upper 84% Zone 1- 86% Zane 1- zone 1- 83.5% Zone 1- 87% 2-71% 84.10% 2-69.8% 2-54% 3 - 69% 2 - 66.85% 3 - 66.6% 3 - 47% 4.57% 3 - 58.95% 4 - 47.9% 4 - 35% 5-66% 4-45.43% 5-602% 5-46% % Occupancy of 6 - 65% 5 - 57.99% 6 - 67.6% 6 - 52% &yelling Units 7 - 42% 6 - 66.37% 7 - 33.3% 7 - 27% 7 - 32.84% 2008 Estimate 83% % Participation by 95% 100% 100% 17% downward Tourists Units at Risk adjusbnent for evacuafing by air Zone 1- 72% 63.77% - average July 2008 Smith 2 - 64% Keys occupancy Travel Research 3 - 64% 2003-2007 Zone 1- 82% 4 - 70% my 2 - 71% % Occupancy of Tourist 45 % tow occupancy 5 - 70% 45% tow (peak s comerJune- (peak summer 3 - 71% Units 75% high occupancy � 7-70% 4H7%Sept - 5-71% October (lowest) 8 - 77% 70.38% average 7 - 71% ' September 17, 2010 Key west occupancy 2003- 2D07 Zane 1- 69% Zone 1- 69% Zone 1- 69% Key West 91% Zane 1.80% 2-69% 2-69% 2-69% 2-72% 3-70% 3-70% 3-70% { r72% 3-79% 4-71% 4-71% 4-71% 4-80% 5-71% 5-71% 5-71% 5-80% Vehicle Usage % 6-71% 6-71% 6-71% Middle79% 6-� 7-71% 7-71% 7-71% 7-80% Upper 80% (% of available vehicles used in evaaua6an - page 65) Tourist Vehicle Usage 100% 100% 10D% % Zones 1 to 7 Zones 1 to 7 = % Dlstdbution Pubilc = 0% 0% Shelters Residents Out of County Zones 1 to 3 = 5% Zones 1 to 3 = Zone 1 - 9D% (Perm. Residents} Zones 4-7 = ° Zones 4-7 = 0% 2 - �0 3-95% FriendlRelative 0% 4 -10D% 5 -100% Zones 1 to 7 Zones 1 to 7= 6-100% = 0% 0% 7-100% Hotellllotel Zones 1 to 3 Zones 1 to 3 = = 95% 95% Zones 4-7 = Zones 4-7 Out of Coun 100% 100% rII Florida Department of Transspartatil CHARLIE CRIST 1000 NW 111 th Avenue GOVERNOR Miami, Florida 33172 Craig Diamond Florida Department of Community Affairs Division of Community Planning 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 11�1111 Il!! III li�il 111111 Jill. I 1�111 WMPANN" SIR O=tdl Woo reasonably sustained under extended periods Or 11MIS Tor eVaCuallon-iiezet or alemana per ,:,egment Idened. The efforts undertaken to determine these rates included a site -specific capacity study in which I traffic flow data were coliected and analyzed under a variety of demand conditions. A comprehensive review of traffic conditions that have occurred during other hurricanz evacuations in Florida, specifically the Florida Keys, as well as in the State of Louisiana, was also conducted. Our studies incorporated data over a 10-year period since the original 2001 Keys Evacuation Study was conducted. Most importantly, this data includes observational studies of actua". hurricane evacuations that have added to our understanding of traffic operations under rnasz_� evacuation demand conditions. W jFj$& Jill IoNmeMl M@LF�111111!;T-Ti EUMN vwm.dot;.sMt;eAus QD RECYMED PhlYn. June 18, 2010 Page 2 CC: Sandy Meyer, DEM Rebecca Jetton, DCA Jeff Alexander, NERFC Richard Ogburn, SFRPC Roman Gastesi, Monroe Count Christine Hurley, Monroe Coun John Taylor, FDOT Vidya Mysore, FDOT Ed Ward, FDOT Gus Pego, FDOT Debora Rivera, FDOT Gary Donn, FDOT Omar Meitin, FDOT Barbara Culhane, FDOT Phil Steinmiller, FDOT , _. f � , 1 Ails, t\ 4 in A S .- .._ f 4 }, ✓�, iv i. , i; t $ _.. , 1 [ ..a. >fA. `s s s! \} 1\ ) t - -_Fll i $7 { s 1 6 ,1 ,1.,�.. ;s. tx) . k �i s i �,�k,. �.. it Location/Description arkers Suggested Maximum Sustainable Flow Area From--L To Rate per Hour per Functional Evacuation Lane Lower Keys ; 2.0 I 4.0 'Key Wee to Stock Island 900 Lower Keys 1 4.0 9.4 1 Stock island to Big Coppid Key 900 Lower Keys ; 9.0 17,0 Big Coppitt Key to Sugarloaf Key 1,100 Low Keys = 17.0 22.0 Sugarloaf Key to Cudjoe Key I 1,100 Lower Keys 22.0 24.0 Cudjoe Key to Surnmerland Key Cove Airport 11100 Lower Keys 1 24.0 1 25.0 'Summerland Key Cove Airport to Summerland Key 1,100 Lower Keys 1 25.0 ; 30.0 ISurnmeriand Key to Big Pine Key E 1,100 Lower Keys t 30.0 = 34.0 (Big Pine Key to West Summerland Keys 1,050 Lower Keys ' 34.0 35.2 West Summerland Keys to Spanish Harbor Keys i 1,100 Lower Keys 35,2 ; 36.5 Spanish Harbor Keys to Bahia Honda Bridge 1,100 Lower Keys I 36.5 37.5 Bahia Honda Bridge to Bahia Honda Key 1 1,100 Middle Keys 1 37.5 47.0 (Bahia Honda Key to Hog Key 1,200 Middle Keys i 47.0 j 48.0 Hog Key to Boot Key 1,100 Middle Keys ; 48.0 I 50.2 Boot Key to Marathon 900 Middle Keys 50.2 I 50.8 (Marathon to Marathon Shores 900 Middle Keys ® 50.8 ! 54.0 °Marathon Shores to Key Colonial Beach ! 900 Middle Keys ° 54.0 54.5 Key Colonial Beach to Deer Key 900 Middle Keys ° 54.6 58.0 Meer Key to Grassy Key ! 11100 Upper Keys 58,0 ° 74.0 =Grassy Key to Matecumbe Harbor r 1,100 Upper Keys I 74.0 t 80.0 IMatecumbe Harbor to Teatable Key t 1,100 Upper Keys l 80.0 83.5 ®Tearable Key to Islamorada 1,100 Upper Keys ! 83.5 85.6 t Islamorada to Windley Key m 1,100 Upper Keys 1 85.6 1 90.0 �Windley Key to Plantation Key 1 1,100 UpperKeys I 90.0 100.0 (Tavernier Key to Newport Key 900 Upper Keys 100.0 ! 105.0'Newport Key to Sexton Cove i 900 Upper Keys 105.0 106.3 i Sexton Cove to Rattlesnake Key r 900 Upper Keys ; 106.3 126.5 !Rattlesnake Key to Card Sound Rd 1 1,200 South Dade 126.5 ! HEFT (Card Sound Rd to HEFT t 900 Upper Keys i Int CR 9051 I 106.3 ; CR 905 A iLake Surprise to Crocodile Lake I 1,100 Int CR 9051 Upper Keys i Ocean Reef ; CR 905 A iTangiefish Key to Crocodile Lake t 1,100 j Int CR 9051 Upper Keys I CR 905 A i US 1 !Crocodile Lake to South Miami -Dade l 1,100 aam A Functional Evacuation Lane has a pavement width of at least 10 feet The above flow rates are maximum values that are expected to be sustained for extended periods (more than 8 hours). During night conditions, these flaw rates may be lower than the ones shown above. BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20.2010 Division: Growth Management Bulk Item: Yes _ No X Department: Staff Contact Person/Phone #: Christine Hurley 289-2517 AGENDA ITEM WORDING: Presentation by United States Fish and Wildlife Service (USFWS) and Federal Emergency Management Agency (FEMA) of the USFWS 2010--2023 Biological Opinion (BO) for consultation under Section 7 of the Endangered Species Act (ESA) of 1973, as it relates to participation in the administration of the voluntary National Flood Insurance Program (NFIP) and property eligibility/issuance of flood insurance in the Florida Keys (Keys) that may impact the following species: eastern indigo snake, Key deer, Key Largo woodrat, Key Largo cotton mouse, Schaus swallowtail butterfly, Key tree cactus, Stock Island tree snail, Lower Keys (marsh) rabbit and silver rice rat (species and habitat) in Monroe County (County). ITEM BACKGROUND: See attached Memo. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: TOTAL COST: Increased staff resources will be needed to implement. Cost unknown at this time. Computer software or hardware may be necessary. INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing Risk Management DOCUMENTATION: Included DISPOSITION: Not Required AGENDA ITEM # Revised 7/09 MEMORANDUM MONROE COUNTY GROWTH MANAGEMENT DIVISION We strive to be caring, professional and fair To: Board of County Commissioners From: Christine Hurley, AICP Division Director Date: October 5, 2010 RE: USFWS Biological Opinion Section 7 of the Endangered Species Act (ESA) requires Federal agencies to "consult" with USFWS to determine whether there would be negative effects of their activities on federally protected species and their habitat, prior to taking action within an area that may impact species or their habitat. In 1990, the National Wildlife Federation, Florida Wildlife Federation, and the Defenders of Wildlife (plaintiffs) filed suit against FEMA in the United States District Court, Southern District of Florida (Court) and later added the USFWS, claiming that FEMA had not consulted with USFWS while implementing the National Flood Insurance Program (NFIP), by providing Federal flood insurance to home owners that constructed homes within areas that may impact federally protected species and their habitat. During this time period, the USFWS issued Biological Opinions for the effects of the NFIP on federally protected species in the Keys in 1997 with an amendment in 2003 and another BO in August 2006. In 2005, the Court granted plaintiffs' motion for summary judgment and entered an injunction aainst FEMA issuing flood insurance on any new residential or commercial development in suitable habitats of federally listed species in the Keys. The injunction order became effective on September 12, 2005 when it was filed with the Clerk. In granting summary judgment, the Court found that: 1. USFWS and FEMA violated the ESA's section 7(a)(2) and Administrative Procedures Act prohibition against actions that are arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the law by failing to protect against jeopardy; 2. USFWS and FEMA failed to ensure against adverse modifications of critical habitat for the endangered silver rice rat; and 3. FEMA failed to develop and implement a conservation program for listed species under section 7 (a)(1) of the ESA. On April 1, 2008, the I I' Circuit Court of Appeals affirmed the order granting the injunction. A list of real estate numbers was developed of properties within geographic areas of suitable habitat, and those properties were stopped from obtaining flood insurance if they constructed homes or commercial businesses. The plaintiffs agreed to eliminate some properties from the list, if requested by the property owners and it appeared the habitat was not significant, enabling some owners to obtain flood insurance after review of the sites and the habitat. Actions taken by County after FEMA Injunction The Monroe County Commission adopted three resolutions (Resolution 420-2005; 185- 2007; and 219-2008) related to the FEMA injunction (attached). These resolutions basically allow the Growth Management Division to "toll" the 60-day time limit for a property owner to obtain their building permit after they are notified they have received a Rate of Growth Ordinance (ROGO) allocation. In the interest of the public, the Commission initially gave property owners 180 days for the "tolling" of the allocation and/or building permits. Then, the later resolutions extended the "tolling" to until the injunction is stayed or lifted. To date, it is estimated that approximately 165 allocations or permits have been "tolled" based on the resolutions passed by the Commission. If the BO is approved by the Court or the case is settled, it is anticipated the County will need to adopt an interim process for notifying property owners who were awarded allocations or permits that they are now eligible for their allocations or permits and give them a time period to obtain their building permits or relinquish their allocations or permits. Property owners may be eligible for Senate Bill 360 or Senate Bill 1752 permit extensions (these extensions are not applicable to allocations). Actions taken by USFWS and FEMA after FEMA injunction The Court ordered the USFWS to submit a new BO. USFWS submitted the BO on April 30, 2010. The new BO found jeopardy (based on habitat loss and indirect effects from development expected to occur over a 13-year period of implementation of the NFIP for: Key Largo cotton mouse, Key Largo woodrat, Key tree -cactus, and Lower Keys marsh rabbit. Development within the habitat areas would also result in incidental take for: eastern indigo snake, Key deer, Schaus swallowtail butterfly, Stock Island tree snail, and silver rice rat (species and habitat) in Monroe County. As required by the ESA, the BO provides Reasonable and Prudent Alternatives (RPA) for the four jeopardy species and Reasonable and Prudent Measures (RPM) for the five non - jeopardy species. The Court directed the USFWS and FEMA that the RPA and RPM in the new BO be less voluntary and do more to protect against habitat loss and fragmentation and otherwise account for cumulative effects of the permitted projects (homes/businesses). The RPA and RPM (beginning on page 164 of the BO) include actions the County must take to ensure that FEMA's NFIP does not violate the ESA. In other words, the County now has additional responsibilities to protect listed species as a condition of participating in the NFIP. These responsibilities are similar to the process which was in place from about 1997 until 2005. This time, however, the responsibilities are required whereas before they were voluntary. A general summary of how the process should work, if the BO is accepted by the Court follows: 1. Using new County aerial photography, the USFWS developed Species Focus Area Maps. These maps identify potentially suitable habitat for the federally listed species referenced above. 2. USFWS will coordinate with the County to develop a list of real estate numbers for the properties that occur within listed species habitat based upon the Species Focus Area Maps. 3. FWS will provide the maps to FEMA and to participating communities in Monroe County. 4. FEMA will require participating communities in the County to revise their Flood Damage Prevention Ordinances to: A. Use the "the list" of real estate numbers and Species Focus Area Maps to evaluate where development may affect species habitat. a. If an area to be developed is not on the list and not within the boundaries of the Species Focus Area Maps, no consultation with FWS is needed. b. If area to be developed is on "the list" and/ or within the boundaries of the Species Focus Area Maps, whether the property is in an area not subject to NFIP or not: i. The USFWS will work with Monroe County and participating communities to develop keys to help County staff determine whether further review by the USFWS is necessary. ii. The keys will include conservation measures such as replanting of important host plant species if they are removed, or deer - friendly fence construction agreements. If these agreements are established with the land owner and become part of the development permit then no further USFWS review will be required. c. For properties that require further USFWS review, the County will forward "weekly" the applications for new development (occurring in the Species Focus Areas where the development expands the footprint of a structure that requires clearing of or placement of fencing into vegetation) to USFWS. The USFWS will then determine: 1. If development is NOT LEKELY TO ADVERSELY AFFECT — this finding and any specific proiect modifications _required shall be incomorated into the County permit AND ENFORCED or the County will request that FEMA deny individual flood insurance for the development being_ permitted. FEMA will provide a yearly report to USFWS of permits receiving this determination. 2. If development MAY ADVERSELY AFFECT individually or cumulatively — this finding may necessitate changes in the permit conditions. The finding and conditions shall be incorporated into the Counq nermit AND ENFORCED or the County will request that FEMA doy individual flood insurance for the development being_ ermitted. Any "take" of habitat for these sites must not exceed the levels identified within the April 2010 BO. FEMA will also provide a yearly report to USFWS of these types of permits that will include the amount of incidental take exempted under the incidental take provision in the BO. As permits are issued in areas where habitat exists for the nine species evaluated in the BO, and where a property would participate in the NFIP, the amount of the habitat that is cleared or impacted resulting from development (the direct FEMA Action Impact in the table below) shall not exceed the following acreages (only acreage that is cleared or impacted is counted toward standard — entire site acreage is not counted). If total acreage for a given species is exceeded, re - initiation of formal consultation is required for that species. If a permit is issued for property that occurs in a Species Focus Area, but is not subject to the NFIP, or any other Federal program (e.g., Army Corps of Engineers Federal permit, Federal grant, etc.) the acreage impacted will be deducted from the Cumulative Impact Acreage in the table below. An example of a cumulative impact project is utility or school construction. The USFWS will work with the County and municipalities to identify and track these impacts. Species FEMA Action Cumulative Impact Acres Impact acres Eastern Indigo 1789 645 Snake Key deer 291 81 Key Largo 218 35 Cotton Mouse Key largo 218 35 woodrat Key tree cactus 587 70 Lower Keys 84 37 marsh rabbit Schaus 372 43 swallowtail Silver rice rat 172 75 Critical Habitat — 37 40 silver rice rat Stock Island tree 587 70 snail B. FEMA will request that each participating community, which proposes a change to the Rate of Growth Ordinance or the Tier classifications, shall provide notice of the proposed change to FEMA and the USFWS. In the event that current Habitat Conservation Plans (HCP) designated in the Keys under section 10 of the ESA expire, all properties addressed by these HCPs that fall within the Species Focus Areas will be referred to the Service for review per the guidelines in this RPA. C. FEMA will coordinate with the County and the USFWS in development of a brochure, website and materials for addressing predation by domestic and feral cats in areas within the Species Focus Areas and their buffer zones to give to permittees. FEMA will report yearly how many permits were issued. D. FEMA will monitor compliance and evaluate the County every 6 months. ANY violation of the procedures established under the RPA will be considered a substantive program deficiency or violation under 44 CFR 60.3 and FEMA will warn the County; give them 60 days to remedy/correct deficiencies (through enforcement actions of permit conditions with corresponding request to deny flood insurance, up to and including seeking civil or criminal penalties or other appropriate legal action against the property owner). If FEMA determines non-comuhance that has caused take of threatened or endangered s ecies that cannot be corrected or offset, FEMA will initiate procedures for pLobation or suspension of community eli 'bili for flood insurance. E. FEMA will conduct training. F. FEMA will require the County to provide a brochure to permit applicants about the referral process to USFWS and post information on the website. Upon acceptance of the BO by the Court (expected at the earliest in October) or prior to the plaintiffs reaching a settlement with USFWS and FEMA, there are time limits within the BO that would need to be followed as far as implementation of the above listed action items. 1,1 &Yl7 AI1I A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA AUTHORIZING THE GROWTH MANAGEMENT DIVISION DIRECTOR TO TOLL THE TIME LIMIT REQUIREMENTS FOR OBTAINING A BUILDING PERMIT OR REQUIRED PERMIT INSPECTIONS FOR PROPERTIES ADVERSELY IMPACTED BY THE COURT ORDERED PERMANENT INJUNCTION ON THE ISSUANCE OF NEW FLOOD INSURANCE POLICIES UNDER THE NATIONAL FLOOD INSURANCE PROGRAM PENDING RESOLUTION OF SAME, OR 180 DAYS, WHICHEVER FIRST OCCURS; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; DIRECTING THE PLANNING DIRECTOR TO FORWARD A CERTIFIED COPY OF THIS RESOLUTION TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS AND PROVIDING FOR AN EFFECTIVE DATE, WHEREAS, the U.S. District Court for the Southern District of Florida entered a permanent injunction preventing the Federal Emergency Management Agency (" FEMA') from issuing flood insurance policies for residential and commercial development commenced after September 9, 2005, until such time as U.S. Fish and Wildlife Service has demonstrated compliance with that Court's order of March 20, 2005; and WHEREAS, the Court's Orders have imposed severe limitations on new construction for all but the most wealthy property owners in the affected areas; and WHEREAS, the Growth Management Division staff estimates that over 60 percent of the applicants recently receiving ROGO allocation awards are adversely affected by the injunction; and WHEREAS, Section 9.5-122.1(g), Monroe County Code dictates that the ROGO allocation award and corresponding building permit expire within sixty (60) days of notification from the date of the mailing of the allocation award; and WHEREAS, the Florida Building Code and Section 6-20, Monroe County Code provides that permits shall become null and void unless work authorized by the permit is Page 1 of 3 commenced within 180 days or required inspections are conducted within 180 days from the last required inspection; and WHEREAS, an unknown number of these applicants receiving a ROGO allocation award or permit holders may be financially unable to proceed with the financing and construction of their homes without federally backed flood insurance; and WHEREAS, it is uncertain how long the Court ordered injunction on issuance of flood insurance under the National Flood insurance Program will continue; however, it is certain to have an adverse impact on those applicants who require this insurance to construct new homes; and WHEREAS, at the Board of County Commissioners' October 19, 2005, regularly scheduled meeting, the Growth Management Division staff received conceptual approval to prepare a resolution that will authorize the Growth Management Division to toll the permit time limits for those applicants with ROGO allocation awards and other permit holders who are unable to proceed with the financing and construction of their residential projects; and WHEREAS, the Growth Management Division staff has prepared this resolution based on the direction provided by the Board of County Commissioners. NOW THEREFORE BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: ecti n 1. The Growth Management Division Director or his designee is authorized to toll the time limits of Section 9.5-122.1(g) and Section 6-20, Monroe County Code for any applicant receiving a ROGO allocation award or building permit holder that meets the following criteria: 1) The property, which is the subject of the ROGO allocation award or building permit, is on the list of parcels subject to the Court ordered injunction for new flood insurance; and 2) The holder of the ROGO allocation award or building permit shall provide written proof to the Building Department of the denial of either an application for flood insurance for the subject property or denial of financing by a lender due to the inability to obtain flood insurance. on 2. The applicable ROGO allocation award or building permit that meets all the criteria in Section 1 above may be tolled for a maximum of 180 days or until the injunction is stayed or lifted, whichever comes first. Page 2 of 3 Section 3. This resolution shall be transmitted by the Planning and Environmental Resources Department to the Florida Department of Community Affairs to determine the consistency of this ordinance with Chapter 380 of the Florida Statutes. Section 4. This resolution shall be filed in the Office of the Secretary of State of the state of Florida, but shall not become effective until approved by the Department of Community Affairs or Administrative Commission. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regularly scheduled meeting of said Board held on the 16'h day of November, 2005. Mayor Charles "Sonny McCoy Yes Mayor Pro Tem Murray Nelson Yes Commissioner Dixie Spehar Yes Commissioner George Nugent Yes Commissioner David Rice Yes (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: DANNY L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA By Q.. %aj%Ww& Deputy clerk By fl h Mayor/ n 3 � v on= a = rnr--t and �. ,=:5= n r• I M w eA r� rrf v -n Cl M n v Page 3 of 3 RESOLUTION NO. 185 - 2007 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA AMENDING RESOLUTION NO. 420-2005 TO ALLOW THE GROWTH MANAGEMENT DIVISION DIRECTOR TO CONTINUE TO TOLL THE TIME LIMIT REQUIREMENTS FOR OBTABUNG A BUILDING PERMIT OR REQUIRED PERMIT INSPECTIONS FOR PROPERTIES ADVERSELY IMPACTED BY THE COURT ORDERED PERMANENT INJUNCTION ON THE ISSUANCE OF NEW FLOOD INSURANCE POLICIES UNDER THE NATIONAL FLOOD INSURANCE PROGRAM UNTIL THE INJUNCTION IS STAYED OR LIFTED; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the U. S. District Court for the Southern District of Florida entered a permanent injunction preventing the Federal Emergency Management Agency ("FEMA") from issuing flood insurance policies for residential and commercial development commenced after September 9, 2005, until such time as U. S. Fish and Wildlife Service has demonstrated compliance with that Court's order of March 20, 2005; and WHEREAS, Section 9.5-122. l(g), Monroe County Code dictates that the ROGO allocation award and corresponding building permit expire within sixty (60) days of notification from the date of the mailing of the allocation award; and WHEREAS, the Florida Building Code and Section 6-20, Monroe County Code provides that permits shall become null and void unless work authorized by the permit is commenced within 180 days or required inspections are conducted within 180 days from the last required inspection; and WHEREAS, an unknown number of applicants receiving a ROGO allocation award or permit holders may be financially unable to proceed with the financing and construction of their homes without federally backed flood insurance; and WHEREAS, on the I day of November, 2005, the Board of County Commissioners approved Resolution No. 420-2005 which states: Egon 1. The Growth Management Director or his designee is authorized to toll the time limits of Section 9.5-122. l (g) and Section 6- 20, Monroe County Code for any applicant receiving a ROGO allocation award or building permit holder that meets the following criteria: 1). The property, which is the subject of the ROGO allocation award or building permit, is on the list of parcels subject to the Court ordered injunction for new flood insurance; and 2) The holder of the ROGO allocation award of building permit shall provide written proof to the Building Department of the denial of either an application for flood insurance for the subject property or denial of f wncing by a lender due to the inability to obtain flood insurance. "Sectkowl. The applicable ROGO allocation award of building permit meets all the criteria in Section I above may be tolled for a mwdmum of 180 days or until the injunction is stayed or lfled whichever comesfffrst. " WHEREAS, the permanent injunction preventing the Federal Emergency Management Agency (" FEMA") from issuing flood insurance policies for residential and commercial development commenced after September 9, 2005, has not yet been lifted; and WHEREAS, it is still necessary to toll the time limits of Section 9.5-122.1(g) and Section 6-20, Monroe County Code for any applicant receiving a ROGO allocation award or building permit holder that meets the criteria set forth in Section 1. of Resoluhon No. 420-2005 until the injunction has been lifted; NOW THEREFORE, BE ff RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: 1. That Section 2. be amended to read: Section 2. The applicable ROGO allocation award or building permit that meets all criteria in Section 1 above may be tolled until the injunction is stayed or lifted. 2. This Resolution shall be effective retroactive to May 15, 2006 and will remain in effect until the injunction is stayed or lifted. PASSED AND ADOPTED by the Board of Count Commissioners of Monroe County, Florida at a regularly scheduled meeting of said Board held on the 16 day of May, 2007. Mayor Mario DiGennaro 'Yes 3 cm.n Mayor Pro Tem DM* *o Spehar Absent C> y M r= Commissioner George Neugent Yes mac, t c Commissioner Charles "Sonny" McCoy Yes Commissioner Sylvia Murphy Yes CDC), a (SEAL) �_,-r _ cn r- ,� n " :%) r �-.1 © d BOARD OF COUNTY COMMISSI$NERS -J DANNY L. KOL GE, CLE OF MONROE COUNTY, FLORIDA B By Deifuty Clerk mayortefigirperson MONROE COUNTY ATTORNEY PPR D A TO FORM: SUSAN .ORIMSLEY Date ASSISTANT N� ATTORNEY 2 RESOLUTION 219 _2008 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA AMENDING RESOLUTION 185-2007 RENEWING THE AUTHORITY OF THE GROWTH MANAGEMENT DIVISION DIRECTOR TO TOLL THE TIME LIMIT REQUIREMENTS FOR OBTAINING A BUILDING PERMIT OR REQUIRED PERMIT INSPECTIONS FOR PROPERTIES ADVERSELY IMPACTED BY THE COURT ORDERED PERMANENT INJUNCTION ON THE ISSUANCE OF NEW FLOOD INSURANCE POLICIES UNDER THE NATIONAL FLOOD INSURANCE PROGRAM PENDING RESOLUTION OF THE INJUNCTION; MODIFYING THE REQUEST CRITERIA. WHEREAS, the U.S. District Court for the Southern District of Florida entered a permanent injunction preventing the Federal Emergency Management Agency ("FEMA") from issuing flood insurance policies for residential and commercial development commenced after September 9, 2005, until such time as U.S. Fish and Wildlife Service has demonstrated compliance with that Court's prior order of March 20, 2005 (the "FEMA Injunction"); and WHEREAS, the Board of County Commissioners of Monroe County, Florida makes the following findings of fact: 1. The U.S. District Court Orders referenced above have imposed severe limitations on new construction for all but the most wealthy property owners in the affected areas. 2. The Growth Management Division staff estimates that over 60 percent of the applicants recently receiving ROGO allocation awards are adversely affected by the injunction. 3. Section 9.5-122. 1 (f), Monroe County Code provides that a ROGO allocation award and corresponding building permit expires after sixty (60) days, from the date of the mailing of the notice of the allocation award unless it is picked up. 4. The Florida Building Code and Section 6-20, Monroe County Code provides that permits shall become null and void unless work authorized by the permit is commenced within I80 days and, once commenced, required inspections are conducted within 180 days from the last required inspection. Page 1 of 3 5. An unknown number of these applicants receiving a ROGO allocation award or permit holders may be financially unable to proceed with the financing and construction of their homes without federally backed flood insurance. 6. It is uncertain how long the Court ordered injunction on issuance of flood insurance under the National Flood Insurance Program will continue; however, it is certain to have an adverse impact on those applicants who require this insurance to construct new homes. 7. At the Board of County Commissioners' October 19, 2005, regularly scheduled meeting, the Growth Management Division staff received conceptual approval to prepare a resolution that will authorize the Growth Management Division to toll the permit time limits for those applicants with ROGO allocation awards and other permit holders who are unable to proceed with the financing and constriction of their residential projects. 8. At the Board of County Commissioners' November 16, 2005 scheduled meeting, the Board passed Resolution No. 420-2005, directing the Growth Management Director to toll time limit requirements for obtaining a building permit or permit inspections for properties adversely impacted by the court ordered permanent injunction on the issuance of new flood insurance policies under the National Flood Insurance Program pending resolution of same or 180 days whichever comes first. This resolution was extended by Resolution 166-2006 by the BOCC on April 19, 2006 and again by Resolution 185-2007 on May 16, 2007. 9. The Growth Management Division staff has prepared this resolution to renew the authority for the Growth Management Director to begin tolling of time limit requirements for building permits and permit inspections following a written request from the property owner, until termination of the injunction. NOW THEREFORE BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. The Growth Management Division Director or his designee is authorized and directed to toll the time limits of Section 9.5-122.1(f) and Section 6-20, Monroe County Code for any applicant receiving a ROGO allocation award or building permit that meets the following criteria: 1) The property, which is the subject of the ROGO allocation award or building permit, is on the list of parcels subject to the Court ordered injunction for new flood insurance; and 2) The holder of the ROGO allocation award or building permit provides a written request to the Building Department for the tolling of an application based on the property being subject to the federal flood insurance injunction (subject to staff verification). Page 2 of 3 Se on 2. The applicable ROGO allocation award or building permit that meets the criteria in Section I above will be tolled by the Growth Management Division Director for an additional 180 days after expiration of Resolution No. 420-2005 or until the FEMA Injunction is stayed or lifted, whichever comes first. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regularly scheduled meeting of said Board held on the 1 b`h day of July, 2009. vtti. Mayor Mario DiGennaro Yes Mayor Pro Tern Charles "Sonny" McCoy Yes Commissioner Dixie Spehar Yes Commissioner George Nugent Yes Commissioner Sylvia Murphy Yes BOARD OF COUNTY COMMISSIONERS L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA By Page 3 of 3 Mayor Mario DiGennaro 0 � 7C 2 s r;Cn tJ7 �a 471 Y, Cn w UNITED STATES DISTRICT COURT SOUTEERN DISTRICT OF HARIDA FLORIDA KEY DEER,er aL, Plain ifFs, vs. MICHAEL D. BROWN erd-, Defdrdamu. Case No. 90-10037-OY-MOORE ,•11 , �Y[?.C• 1�29� 4L..1FL.:C.L � N•Y L% ala.. �.� o�i riri a a a tug- AWN TM CAUSE cww before the Cam apon Plwnbffs' Motion for Summary sudgmcut (DE # I M and Defendants' Cross Motion for Summary Judgment (DE # 192). UPON CONSIDERATIONof the Motions, the padneW portions of the record, having hcwd Mal argttt:C11% and berg admwift fbily advised in the premises, the Cotnt enters the following Order. L RACKGROUND A. Parties Phtinti$a, the Notional Wildlife Fedtnation. Florida Wildlife Fedemdon, and D eIkudeu of Wildlife, btnttglrt this action Mmmaed to the EndwWred Species Act ("ESA") and the Adtninish ive.hocedwe Act CAPA") an hehaif of ct& wed and Amami species of the Florida Keys: thq ,l ey Largo Dalton mouse, Key Deer, Key LOW woodmt, Lower Keys marsh rabbit; Scha%W swellawtail butterfly, silver rice rat, 3to& Island tree snail and Kcy ute-cacdm' Defendants we Wichad Brawn, in his ofchd capacky as the l With the exoeptioa of die lt;ey Vwmmcft and Sch&W swallowtail tanaEly. all oldie speeim am md=k to the Florida Keys. Undcrsectetary of Emergency Preparedneu and Response for the Depara nat of Homeland Security, which incinrdes the Federal Emergency Mm Mernent AS=W ("FEMA") and Gate Norton, in deer official capacity as Secretary of the United Su t s Department of the Ia rior. which lrreludes the Fish and Wildlife Service ("FWS'). B. Procedural History Plsindifa BW this acboa irk 1990. seems to compel FEMA to aim left ESA consultation with FWS corree:ring FEMA's adminiseraiion of the National Flood Inomanee Progmt n CWMP'") in the Florida Keys. Following a bench trial, an August 24, 1994, the undersigned directed FEMA to consult with FWS in accordwxe with its duties under 16 U.S.C. $1536(a)(2X"ESA §7(a) 2n As a =$rh of tba consultation, FWS drpemriacd, in .its 1997 Biological Opinion C1997 130'7. that FEMA's adrain tration of the NFIP within the Florida Keys was jeoperdhmn the Key Deer, Key Largo cotton mouse, Key Largo woodrat, Key tree, Lower Keys rrrarsh rabbit, Scheaa' swsniaww buttm , silver riot rat, Qarber's Sponge and Stock Island t we snail. As required by 16 U.S.C. § 1536(b)(3XA), FWS proposed reasonable and prudent alternatives ("RPAs") which it concluded would eliminate jeopardy to lbeae species and allow FEMA to continue *)Iemading the NFIP in the Keys. FEMA adopted the 1997 RPAs reomnmaaded by FWS as its plan for avoiding jeopardy. Plaintiffs filed an Amended Cow4dairl in 1997 (DE #119). elaitnintg that the 00 end accompanying RPAs recommended by FWS, and implemented by FEMA, violated both the ESA and APA. 9 Subsequently, in 2003, FWS and FEMA re -initiated the consultation process? As a result of this cc-mtmdon, FWS issued an muended BO (" 2003 BO-) riding FEMA's NFIP is the Florida Keys. L17oe the l997 BO, the 2003 BO concluded that FEMA's NFFP in Ow Florida Keys was jeopardizing the same species as those 11sted in the 1997 BO, with the exception of the Gerber's Sponge (herein Aw "Listed Spedesj. As rociubcd by law, the 2003 BO imcluded RPAs winch FEMA again adopted (-2M RPAeV Pl OW& then filed a Second Amended Complaint (DE #Z M in 2003 challe✓Agog the sufficiency of the 2003 BO and the 2003 RPAs. Th+e Second Amended Complaint is cmtiently before the Court and the subject of the parties' Cross -Motions for Swnnnary Juftenmd. C. Plsintitis' Second Amended Cmnplairnt Count i of Plaintiffs' Second Amrxcded Complaint alleges FWS and FEMA violated ESA $ 7(a)(2) and the APA's proMbition against actions than we mitt wy, capricious, an abuse of dimetim or of unwise net in acoacdance wish the low, 5 U.S.C. § 706(2)(A) ("APA § 706 (2)(An by failing to cnstwe against jeopardy. Count n alleges ' violations of the agencies' ESA duty to ensure against adverse moMeadw ofod ieal habitat ESA §7(a)(2). Comet M alleges a violation of FEMA's duty to develop and implement a conservation program for the Listed Species under 16 U.S.C.11536(a)(1) ("ESA § 7(ajjl)') and APA f 706 (2)(A). 2'nm '1997 90 mined a =:WkiNks chaise which required FEMA to Misdfiats aoas d I Lion if MMM Cmmly did nee compkra a I II I tawreryr PhD wftb Seer yeeFWS AR AR20 at S.S. Becom Monroe Coady tailed to eomplole a Om FEMA te`Whimd crosubmio a as mquhed. 3Plsi Mf& contend, and Defeedmts do not dirpue, d d the 2003 RPA9 we maw ily ideatid to the 1999 RPA& Dot Mot. For Suntm. J. at 1. (FWS n aftbo ed the RPx gaud FEMA ho,baud eo eoradmna hoplemeat6tg the 1tPA). 3 H. STATUTORY FRAMEWORK A. Administrative Pr+ocedum Act Review, of the DatendmimW action in this case is governed by dw APA- RLmemm v Unftd SIMm A= CgM gfE&SWM 271 F.Supp. 2d 230,250 (D.D.C. 2003Xtmder dw ESA, agomT decisions are reviewed under the APA). Under the APA, a docent shell hold wnhmM and set aside agency actions, findings or coWnsions dw are: "arbitrary, capricious, an At of discretion, or otherwise net in accordance with the law." 5 U.S.C. $ 706(2XA). In reviewing agency echo% the court must engage in a'thorough, Prob►m mAepih re.vivw►." CM=t1 la.BmIcM QyM= pack v Yolp, 401 U.S. 402.415 (l 971), to determine whether the: agency has Nexamined the relevant data and a rticadated a satisfactory explaiaiion for its actions... " Motoryehicla Mfis. Ags'n v. State Farm Mut, Auto Ins. Ca._ 463 U.S. 29,43 (1983). In this revfew, tier court considgn whether "the agency acted within the scope of its kgai mdbonty, wheabor the agency has explained its decision. whe dw the facts on whie b the agency purports to have relied have some basis in the record, and whether the agency considered the relevant fackms." Emd ft &=Ws v 903 F.Supp. 96, 105 (D.C. Cir.1995). UnIm this stander+d, an action will be sex aside if the agency has relied on factors which Congress lad not int+endo i it to consider, failed to consider an important aspect ofthe problem, off! r an cxplanxtion for its decision that rears counter to We evidence befeyre the agency, or is so implansabte Wet it can not be escribeed to a duce is view 6r tine product of agency cgxrdse. Motor Vehicle Mfrs &Wn.- 463 U.S. at 43. 11 B. Endangered Specie Act The 1=SA is "the most aompnimmsive legislation for the pmoemstion of endugpW Vedas ever enacted by any nation." TYAv. Hill. 437 U.S. 153. 190 (1979). Its stated purpose is to "provide a mmns W1meby the ecosy$ti m upon Wilier! Cnlangered species and th eat6md species depend may be conserved [andj tD pnmdee a program for the cmarvimon of such endangeraed and threatened species ...." 16 U.S.C. § 1531(b). "[T]3re plain intern of Congress in enecting this statute was to hak and reverse the trcod twmd species exdnetion, whatever the cost." nU , 437 U.S. at 184. In particular. the ESA directs federal agencies "to use ...all MCdK ds and p mcedu s which are necessary to preserve the endangered ." DcRaders ntNIdM Y, 130 F. Sapp. 2d 121, 125 (D.C. Cir. 2001) (cites om bed)_ Section 7(aX0 of the ESA requires all fedeal agencies, in consultation with FWS, to use their aanhority to further the goals of the ESA by carrying oat programs for the conservation of endangered and drreaftned species. Under ESA $ 7(a)(2), v&m any action authorized, funded, or carried out by a federal agency may potcautiaily ai%ct a listed sperirs, that agency trust consult with FWS to insure that the agency's achvmcs we "not Nerdy to jeopardize the continued existence of any endangered species or dwesterted species or result in the dea nxtion or adverse modification of [critical] habitat of much species." FWS is diem required, under Section 7(b) of the ESA, to issue a biological opinion on vAwd err the met cy action is likely to jeopardize theboatinued existence of the species. If FWS conchides that the agency's actions are likely to jeopwdizc an endangered or tlueateied species, FWS is dien reacquired, under ESA § 7(bX3XA), to sum pM "reasonable and prudcat alternatives:" Reasonable and prudent alternatives are defied as: ahernative actions identified during formal consuita ion thw taw be implemented in a manner consistent with the iDtaWW purpose of tha action, that can be impkmanted consist with the scope of ties Federal agency's legal audw ty and juris&ckmo that is oconvmically and todmalogically feasible, and dw the Director believes would avoid *4 likehibood of jeopardbdog the contimed cxwkwe of listed spy or resubing in die dest nation or adverse modification of critical habitat. 50 C.F.R. j 402.02. Under this definition, reason" and prudent awes numt: (1) be consistent with the purpose of the underlying action; (2) be eonsiskm with the acdog agency's atuiw t . (3) be economically and technically feasa-Mk; and (4) avoid the likahihood of jeopardy or adverse modification. Shmo m v. NOonal MIarine F'sheribn 55 F. SW. 2d 1249, 1264 (W.D. Wash. 1999). Once FWS suggeats reaaoamble and p =km aborna ivea, the acftg agency is then required to consider the alternatives, and adapt a stirrrkW fu1811ing its Section 7(aa)(2) duties. 50 C F.R. j 402.14(h)(3k 323 Fad 106Z 1064 (D.C. Cir. 2003). Only after the federal regency complies with Section 7(a)(2) can that agency action go forward. Pacific Conn Federation of Fishcrmaa's Assoc. v. U. S. Bureau ofReclamation. 139 F. Supp. 2d 1229. 1242 (N.D. Cal. 200IXcibdkm omittod). IIL SUMMARY JUDGEMENT STANDARD Under Rule 56(c) of the Federal Rules of Civil Procedure: The judgment sou & aball be w&xed fbrdw ith if tare pleadings, depositions, answers to I - rogntorm and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to easy material facts and that the Droving patty is eadd ed to a judgment as a rustler of law. FedILCiv.P. We); gad 477 U.S. 242 (19M6). "If a 6 reasonable fact finder evaluating the evidence could draw more than one inference from the fitcts, and if that inference introduces genuine issue of material hKA, then The court should not greet summary judgmaat." jff= v 8@MM 2MM SM 64 F.3d 590,599 (1 ldt Cir. 1995). Further, "(w]here the record taken as a whole could not load a rational trier of fhct. to Tend for the non-moving p wty." smrwmmwy judgment for the moving parry is proper. 475 U.S. 574, 587 (1986). In applying this standard, the Court must view the evideaee and ail factual k*am des in the light most favorable to the non-moving party. However, the non-moving party may sot "nest upon the mere allegations and denials of the adverse patty's pleadbW. bud the adverse patty's real - we, by affidavits or as Amwise provided in this role, on set froth specific firers shouting that there is a genuine issue for trial." Fed.R.Civ.P. Wc( "The more eaist+ence of sdriritilla of the [nenwrnovanfal position will be tnsuffident there mmt be evidence an winch the jury aakd reasamabilr find for the Inun`movsat]." A 477 U.S. at 252. The iron -moving panty must raise sigrtificaM probadve evidence sufficient for a jury to find in their favor. Ham= jm., 146 F 3d 832, 335 (1 l th Or. 1998). In fact, "tlte plain lame of Rule 56(c) mandwas entry of suaYrnnary judgment ... agshot a party who fails to make a dumwing 3ut icleat to establish the existence of are element essential to that patty's case` and on which that party will bear the burden of proof at trial." CelM Cure. v_ Careen_ 477 U.S. 317. 322 (1996). 'lire failure to piem t goof concerning an essendal element of the non-moving party's case necesserHy renders ail other facts immaterial aril regwm the court to game the motion for swarmary judgrruent- A 7 Finally, when applying the APA to review we actions under the ESA, *c court resolves the issues based on the agency's administrative reo d, a trial is generally wry, and summary judgment is AM appmpriate. Leseadold INWA V. Council QKYAM J #X- 120 F. Sapp 2d 1005, 1011(M.D. Fla. 2000)(amag E1L&& 8t YAS, 4ss'a. v. Bruck 771 F.2d 1445, 1459 (l ith Cit. 1985), wM 475 U.S. 1112 (19MXthe summary judgment prec Wbam is particularly appropriate in cases in which the court is asked to review ... a decision of a federal any). IV. AGENCY ACTION Plaintiffs clmlleage three agency actions: (1) FWS's preparation of the 2003 BO; (2) FWS's recotannpdsbon of the 2003 RPAs; and (3) FEMA's adoption of flee 2003 RPAs 4 Delhndants do not dispute that these are agency at:t aw subjM to ivnew under the APA. Accordingly, this Cam aatast determine whether dw 2W3 BO and fire 2003 RPAs arty arbitrary, capricious, an abuse of di%m:don or otherwise not in s ax danm with the law. A. BiologicalOpinion(s) 1n the 1997 90 FWS concluded that FEMA's NFIP, as sdmialstered in the Florida Keys, was jeopandbing the emsUwe of the LWW Species and adversely modifying the habitat of the saver rice raL FWS A.R. #20 at 5.1. Mw 1997 BO identified habitat loss and Grsgmcritation as the prinwry factors jeopardizing the Listed Species. h. With the exception of the Garbees Spong% the 2003 BO cone to these scene candusiom FWS AR #88 at 55. 4Whik s aho clwHnW FMW* ftM= m ftnpksouAmry oanserva6m plc» fw *& tasted species, this is now d u tt no% an mWcacy aerim per se. as k daltenga the a gemy's llilure to act. 8 B. Reaaoea ale and Prudern Alternatives The 1997 RPA9 recommend deaf FEMA, FWS and MM= Comity recondle digital data produced by FWS eoncernft adtabk and unstutable species habitat with base mapping coned im Monroe Couaty's GaopWhkW Infoutwion System. Def Mere. at 9, FWS A.R. 488 at 57. In aeoandawc with del: process, a Monme CoumRy ataff pesaon assists permit applicams in MVkwing a list of rad cattle loot munbers corresponding to areas that FWS has kicuti8ad as outside the habitat of die covered species. . If the particular lot is not on the list, amd therefiac not within writable habitat fear the covered species, the permit application is not referred to FWS for aoonEnation U On the other hand, if the lot is on the list, and therefore within the habitat of the covered species, the permit applicant is wkTmd to FWS to obtain technical asstistezice. Once the application is referred. FWS then dvkxm3iaea whdher the project is "hlwiy to adversely aff xe the Usted Species or critical habitat_ hL If FWS deternim #lent the project s=W adversely affect a eovend species or critical habitat, FWS works with the psrticipaIMS cotunmRty and tba landowner tQ enstne eompbanee with ESA saxion 7 and sxaron 10. a A copy of a sectionlO permit at the .ertitm 7 eonsid ation outcotme is placed in the community's building permit file_ elf- If the pnr ect may adversely affect a listed plo d. FWS would provWerem on avoiding or utinimsizing those effr m V. DLSCUSSION A. Court I Count l of the Second Amended Complaint alleges that the 2W3 00 violates ESA $7(a)(2) and APA $ 706 (2)(A) because: it A& to eonsidar FEMA's NF P aftw adoption of tic RDAs in 1997. Count 1 also alleges that FWS's roan nendation, and FEMA's subsequent adoption of fin 2003 RDAs was arbitrary, capricious, an abuse of discretion, or othemnse not in aceoruta with tic law bccauae the 2003 RPAs fail to remove jeopedy to tic Listed Species. Aecadingly, the Court will. eonsidw the wASmiency of both the 2003 BO and the 2003 RPAs. Additionally, this Court will consider yr FEMA's adoption of the RPAs as its plan to remove jeopardy ("tie Plan") was reasonable. 1. Did FWS adegmmly consider all relevant hewn in the 20M BO? Plamtif& contend that the 2003 BO violates ESA f 7(a)(2) and is otherwise arbitrary and capricious becatiae h fails to conaidet the NF1P after the adoption of tie 1997 RPAs. Plc Mena. at 22. Specifically, Plaintiffs argue that the baseline analysis section of the 2003 BO should ham included as evaluation of FEMA•s NF1P after adapting the 1997 RPAs because the NM program, as augmented by the 1997 RPAs, corztdvftd federal action. UL Dc endants disagree, arguing that " a biological opinion typically doesM discuss how RPA[s] affect the env-b mrrerrtal besdian, because such analysis is included in futree biological opinions ...." De;f. Mern. at 22; Del Reply at 11. The Court will first consider wicdm FWS should have evaluated tic NFW as aug rented by the 1997 RPAs in the 2003 DO. Ifthe Court funds that this irktrmation should have been included in the 2003 BO, the Court will titer conader whether the 2003 BO contains this analysis. IE a. Did FWS have to evaluate FEMA's NFIP, as wed by the 1997 RPAs, is the 2003 BO? As discussed ESA § 7(a)(2) rexluh= a federal ate► to oosult with FM When any action authorized, fim %4 or carried out by the agency may affect a listed species. Once consultation is initiated FWS must: (1) review all rekvm t infanndiion, (2) evalum the currant status of the fisted spades; (3) evaluate the effects of the action and the cumulative effects on the 4isl od species or oeitmW habitat and (4) fannulate a biological ophdon as to whether the anion, taken together with cumulative affects, is likely to jeopardize tic Continued existence of the listed species or result in the destruction. or adverse moddk ation of andcal b *iw. 50 C.F.R. §402.14(g)(1-4). In evolu ding fike eff = t of the actions" FWS mast Consider the "direct and indkv t elf a of an action ... that will be added to the environweetol baseline." 50 C.F. R. §402.02. The envirormreatal bweiinc includes -the past and present activities of all federal ... actions . _ . in the action erne" hL Finally, the biological opinion is required to contain a "detailed discussion oftbe effects of the action on de listed, species-7 50 C.F.R §402.14(h)(2). Accordingly, the Court finds that an analysis of the effect of FEMA's adoption of *a 1997 RPAs on the Listed Spas should have bear included in the 2003 BO. So Qefenders of Wiidi*v. RobtdL 130 F. Supp. 2d 121.126-8 (D.D.C. 2001). First, FEMA's adoption of the 1997 RPAs as its Plan to remove jeopardy to the Listed Species was a decision with lepi effect and constitnted a "fedend action" for pwposes of the sufficiency of the 2003 BO ender the requirements of the ESA' ft 550 C.F.R. W2.02 dunes as actim ex all activities or ptogran of asy kind authorized, !Ended, or ewrled as. In whale or is ta. by 11 Marine Embadva &M 237 F. Supp. 2d 1181, 1200 (W.D. Wash. 2002). As a result, the effect of huplementh* the 1997 RPAs on the Listed Species constituted `past or preswtt fedwal anion" and should have been included in the beselm analysis of the 2003 BO. So SO C.F.R.1402.02. Secov4 when reviewing agency dedstass under the APA, this Court is required to consider whether the agency considered all relevant information. %& lm 11(A). When FWS prepared fire 2003 BO, inforrandou mSwding whether the 1997 RPAs dully mrnoved jeopardy to the Listed Species was available. Such inftmation was relevant in light of FW5's decision to recommend the smrae RPAS in 2003 *at it had rocauamernded five years emrlior ` Ammdvgoy, even assua wg DAmadents we aorred that the regulations discussed abwm did not require FWS to evaluate the effect of the 1997 RPAs on the Liged Species in the 2003 BO, this information was clearly relevant aed th adore should have boon included. A b. Does the 2003130 aclegmwly evaluate FEMA's NFIP in the Florida Keys with the RPA in place? A reviaw of the 2D03 BO reveals that there is almost no discussion of the effect of the NFIP on the Listed Species after adoption of the RPAs in 1997. While there as a Fe6eW agencies in dw UrAed Stereo or upon rho trig seas. Emmpks include, but are not Itmad tom: ( - m) *a of %do of r . ems. 1, 1n. rWM4&w+Y. PWWU6 ar gsuttY-is-old; or (d) actions dhwty or indirectly cmaing nwdilicniom to the grief. water, or air_.. (enryh"is added) `M Court ttMs drat terreratly, whets recone:uending rmmable and prudent attwmires. FWS does not have intbtmation avaiiaMr UgEcdiaet wh9dW the alext Wivaa wig acettatly be sommfid in n=avwU jeopm - This is not the case hwce ss FWS recommended the same RPAs Chet wet a ahe edy in plane. 12 discussion of the papttlabim Ucnds of the Key Dear'. the 2003 BO eon:ins no discumion of tlrc population Mends of the other Listed Species.' In addition, while habitat Iona and fro fart are the meted catL9ea of jeopar4y. there is no dish x ofbww the adoption of the 1997 RPAs affected habitat ions and 5agmmtadan. The Court tharefim finds that the 2003 BO failed to evaluate whcdw FEMA's NFIP was continuing to jeopardise the Liabed Species after impleommon of the 1997 RPAL Acoordriney. the 2003 BO violates the ESA and is arbitrary, capricious, an abuse of discretion, or odmmvviw not in accordance with law because it plainly piled to eo©tskW retevant inf mnatiom fia M= Vehicle M ft- ,A1". 463 U.S. at 43. As a result, PiaindW Motion for Suarawy ludgtnent is Caanted on Count I with respect to F WS's ptsepara! eon of the 2003 BO. 2. Do the 2003 RPAs fail to rMM aping jeopardy? The pfftie$ do not dispute that in order to comply with tits ESA. an agency whoa actions haw been fannd to jeopardize an endugcred or due abetwd species must implement a plan that avoids such jeopwdy. Pl. Men at 10; Def. Mem. at 13; Soulkmat Caner fear "an QIRWI ad wims,_ 379 >:.3d 1059. 1067 (9th Cir. 2004)(focustng oa aelual spe�eies count is an oveefy nsaow inoapet satioa of what is ssgsired miler die jeopardy PUMN 'Fw&mnom to the extesK drat FWS GOMM& that the 2003 Ws discuss!= of tit Key Domes popul" wend might somehow frdait than drtty tD ereltiate part fadaal actionorvaAWWc dot2003 ltPAs. dwyate &nwdy x atdicted by dot 2003 SM Fbst, abbov& Defltaduats we correct is zwerdng chart din Key Dsat's esthamd populstion has pxmased fMm 250-30t1to 7w m. toe record is net cker about when this papulatim mcreme occurred. " FWS A.& 0B3 st 9 Ou 1970 the Key Dan popubdion wan estanatad at 250-300 WMdtn k — the papulahm has most nwa* bade wed st 700-M tudlridtwW"j Mole napmIxIdy. dw 2U0�i' 130 dot= tit thine has been a comuction in the rags ofrho Kay peer6 sad as s rewK "dais conaacden in range has decreased rite overall viabllily of the Kay Doer popeb iaa." I, Awmfingbr. W the extmt dW do 2003 00 dwasses the eft of the WFIP after adoption of the 1997 RPAs. this dlsoosim a* higldigbts the Mer%nNesmss of do 1 "7 RPA9 and illustrates how mlowing die effects o€tie 19W7 RPAs would have compeUod F M to rteam nuW differem RPAs In 2003. 13 Biological D4nWty Y. united States Borneo of RCdNHgdM 1431r.3d 515, 573 (9th Cir. 19n). Here, FWS by r+ecommaQding the 2003 RPAm6 and FEMA by impkmaa frog die 2003 RPAa as their Plan to remove jeopardy, have neceasmAy concluded that the 2003 RPAs satisfy this no jeopardy stendanL 'Mus. the Cc mt mast deftnnine, under the "arbitrary and capr':cime standard of rwAaw, wbodwr the 2003 RPAS are l`kely to remove jeopardy to the Listed Species. 55 F. Supp. 2d 1248. 1267 (WD. Wmh.1999)("under the arbitrary and capricious rtmedard of review, the government must eatablish that its reasonable and prulent alternatives fulfill their purpose of avoiding the lilefihood of jig do oared exiomm of fire listed species ...'(internal quou den mmim omitted). Plaintiffs allege that &c 2003 RPAs fail to meet the requrirdnums of the ESA and are therefa a arbitrary, capricious, an abuse of dioxedon or otherwise not in acoordm= with the law because they UlopW. (1) rudy an volumay measures; amd (2) do not protect agaim habitat loss and [radon or otherwise aocouasi for the cuunilatrivee a fS of the permitted peajecte within the suitable lml►m of the Listed Species. Pl. Mem. at 18. a Do the 2003 RPA9 illegally rely on voluntary treasured? "tiPfwn measmres under the ESA rarer be reasamably spec iic, certain to occur end subject to deadlines or other forcible obliptium. Nat'l Yldlife fed -any. Narl Marine Fisheries Serv- 254 F. Supp, 2d 1196 (D. Or. 2003). Amaim Hi 271 F. Supp. 2d 230, 253 (D.D.C. 2003)(no jeopardy f nding under due ESA must have a reasonable of occurring, not just a reasonable clrrnuoexetaphrtsis in migf nal). Plaintiffs allege *md the 20d3 03/28/05 15:28 PAZ 303 $36 7274 FAX BACK RDAs viobft the ESA becam m day Rkgally rdy an vole Wary memam DeEndm a disagree ao tm grounds. First, Defeadands aged tht "FBMA mot tzin hdc ooasubod ra if aay unmjd nmd Ui=g Of E Bated V=m owum at if ww iafianmfim nev Wx edMa W eBocto trot cowed in the RPA." ENDS A.R. #20 at 5.5; FWS Sq* AM #88 at 6W, Deb Mean. at 20_ SccosA Dew consad tleat the RPA does not Riagally My cat vak ataxy measeues bx8aase `5fda CeunW fulls to dd& by iN vA%Fl3MA to aanftree flee Omming procas, FLMA aw bm mW =6 fiditg+a as a vrolatipmt oftho NWs oozy cligibilit3► � � ice aoY ��3ate Frobati� ar procedures." FWS A.R. #37 at 5.3; FWS Supp. A.R. 88 at 57 38; Day£ Mem. at 20. The Caput f n& both of Defy &mU' argumeft vnpasuaAve:. First, the winiandon rcqu aaam does nod tfag tb caawd tlm landowraers to adbm to ms6 by FWS. Indeod, de r�aoard indiexmes that soage ]sadowneas amMely di:srded the 199rf RPAO Also, d w ra-nirtia m cb=e does ad provide far radon im afhabiM titsf vn damoyed par does it provide for any commquenm to bmda wmn that destroy babsmt ! Affi= catsuftag FW3. Fordammr, FE" did not ee-iraiii t eommitafam Wban landowners deaboyea bebibt wid ai coimbiag with FM. X Aaoot EaWy, flea record reveals that dos re-iattea m roquixemcnt does mi crime that the pmedma paoscdbod m the RPAs ace mmmabiy VMftc, CMtdO to Occur add a INW to deadl m or atbw amble Oft PL Fie. 4 as Pt. 9 (dg* Pok+ad des mr d I I - Wlneoat M mviaw. to no care die! FEMA re- iahoft cvaaed4 m vM FWO "FEMA bw not r&bkb ted caee=kW= urea *waO mmftodned we►l cb have pm farvim d wbio6 raval[ed is dedruc m to anieebie habitat & ]S laaa2 03/29/05 15:28 FA3.305 536 72'-*4 FAX BACK De.6aadua' as's , P - that the RPA dorm act idy on rauataly memve because FBMA "m hva the Co=W's Sdare to abide by *e s istg peooass as a violation of the MP em mu ndy cKlO lsty+ nqw=czde is wars at bcsL hL (aenphssia added}. On its fans. thia psaviaion is VQAWJKY. lbm it dam nothing to acre that aitha the aotmV w the iendow= wM damply wM dw RPAY promedums. !n additiaa, she recosrl repes�ediy $hr,� the � of w6Gtirer the p=o&m proscabe d is the 1997 RPAs will be hHv%ed. For ammaple, *A 2M RPAs do to =qWg FWS m make i - c m mnandafrans to pojocta within the saitable habit afr die Liatad Speaks. rather they nay do so at dwkown dimutim Indmd, the aderri vie record in&cMs that oar a sam$ paccoemp of appheatioms whin mnUbb laebdut actu ty mcdved coumvadon reoommmddkm $era FWS. ft jML JVM(b). In mm cam wime recownmdadow wen made, their wave not adopted by sins hmdovm m FWS. -%M. AX #52- Finally; Debmdwft admit dw the ""A MMMM that iadirvidual devalopeis wilt corrq* wide raeomammedadams pp vkW by FWS the pamit boa process" Dot Ptopomd Fmdbip of Fact atd Caasdudowe efLxw st 137(empbois ad 4. Ammdkgb. the Cow Suds that the 2003 RDAs Wegslly rely an vohussary oansarvatk a tea. h Do the 2M SPAS acaoM Far dw cumodefive eMems of tiro pm'Ran pew= and iPs'oted apma habitat loss and tisg1atio�n7 Pis zW maim tlea dw 2003 RPAs are ininideiedbe sum dl y provide fora, mview of poposed projects am a pmjort by ptrjeet be3b and ther+eI c do mat t dm ieto aCcoaut the cumdatM eff Xt of the of saoatl-Seale pn*Cts peinuitted WED 16 03/29/05 15:29 FAX 305 336 7274 M BACK oo4 forward in tia hablut of ft Listed SpaiaL Pl. Rq* at S. Defi=iob again arguing Omd "Djeopw* is avow bode an a ymjcd sp mi& and on a pwgmma sma baei*- beep= the RPA emblcs FWS to p uWde tubtdcal mdgu= conet ft app-apabme mewam to avoid and mhdmin hwacta to a I MW Spacics." DeL Mam at i & Upm a review of *o G&ni�reoonl. ftcQm@pmfimftDAm&ffwwmwft mpmuad11e- The rocard sbom that bets m July of 1998 and Ootiabw of 2002, app odms hdy 2,557 pajom wam identified ae being km"w tbim tic Suitable habM of the Listed Sp deL Pl. Mbm. at 13; FL EL 4.; FWS Stipp. AIL "9 and 029a. Of the 2.337 IN lmc writhm the adtobb baNtat of do Listed Species. 2,034 wa+e oeviewvd by FWS pmano to the RPAs' peo a&ma" jL Fmm these Z034 pivjeet MOM, FM mdmd ed 2= to ptocad atd delayed 12 of tam. IL Of the 2.= pniegs admiaod to proceed, FWS determined that 2,M6 of tham was trot li W4 to mhwsdy d 6pa I Aftd Species or critical babilsO I L Of the mma;n mg 16 prnjats audwzi=d to gu FWS concltidW that: fm of them did not atFed a Listed 9pecicK d um of tlmm vwm not FEMA iawred pcojectr, and tight of dour aoitld proceed aim wwWwotmg charges ftwd 81 p owcfmg the I.isWd Sp mir.. IL P WS did sot fad that my of do 2.= pegteWa permitted m go fosward in the soitabk bdAd of the Iistod Speei es wmm tam jwdlr m 't An o6w Sx3 p+Qj m wcm wcttoa 7 eoambdWo m U.S. AMU Caps of BM*sPmkWHcmdm antitlra-& maetmriaw&kbyFWS 'iliac does oot appear m bo a w mmd oifWS'a aview cfte 2P6 PvjsetL "Of The 12 deleyad p *c%L slam of dw m wm Fi?MA Wmrod pndacb dlbWM Umd Species w" p maaadod vow abomms bad=W ww peirab FwS moM A.R. 00 rod ML 71ma o6&ao &Baud om&ud * - -irs a W*v OW we wrs art s t= MA bat mW pr#mL ]A Acmd b*. k aaoo efdaw pro)ra1, did der? RPAa 17 03/29/05 15:29 FAX 305 536 72TA FAX BACK Ddaadaaats' ca*W that the eanouat of prajccts permitted fiat go f wad wither tba aaatbia haabitat does not show the the 2003 RDAs fail b protmd &a Listed Sped fiam jeopardy beemm dw majority ofdo project ware iaaaignif cza D4 Reply at & Agaia, Oc record does not =VpmDmftdmW m+pm=& For ezm ple, cf tbo ZW prajim allowed to go forward is the witable babloa,101 d rheas vmm fesaoaxs on Bt Phn and No Nhme KgyL F" SuM AIL 99. These are the vaay la anom v4m tha Key Dams vxvivd is at rids, due to %ias< (19977 BO d 3.nX, lil hasis added). SimSa dy, FM fbtmd that a 15- unithoub g project waaa sot hlAdy to adva s* off a the Listed Species evaaars t wuo &o project site was Used by tin Yry Dear and oaausi l , by FWS to bas ma"n " FWS 3upp. A.R A5 (S/1W01 and S/l7l991stoa:raa)_ Fudom a m% PlaWfiffi at cma ct in xVmWg tbaet do 20a3 RPAt iliepily fsd to son ider the eaaamddiw met of d opmaiaal paajecb. Bothaf floss biolagtrad apwiom omChwe float &me4 aaob in the babiM of fhe Limed Species "I&= kWdw, vM malt in jay" Ike Rq* at S. Hiawvm. the M RPAs do m address this coarse of joopwdy. Ra dw, by pmviding for a p mject by pmjeat review, it is imh%dy that FWS wall eauchWe a Ww Oo ZW3 RPAs that a anglaa: pamnja;t vM rmme jeopa mdy. latdeed sass d'a c=md above doe record rvvmb that FWS did nA probhu a dn& pmpa fiom proceeding based an daa p rojeM pawls affixt on rhos suiW" bd itat of fire Lided Spaaeies. A wdi agly, this review is *0 caawAuskm of FWS dd haaNtas Iowa wA *Rpmdation "baalama together" cmn)mpWy to the Closed Spe iaL Puma dw Umd + . by definkk% iorideod pafafU sttorr hoc a "toltia�' d■ tWe1 spaeies l8 03/29/05 15:30 FAIL 305 $30 M4 FAX BACK Finally, bosh tlae 1997 BO and the 2003 BO list sm y smandery dfech of dofelagmeat in the Fla" Keys as tiacos to the Listrd Spocim For cumqpie, bxrmud traffic, Illegal dumping, mortality fim pets {apmW cat pm&dm , lass of fiu& watar (farh'limrs water gmslkY), I mn 11 Inc mu, a de vegetndotl. pemid& um and man4ndumd fin are mm mmed as secondary ftma FWS A.R. 420 321-4.17. Notts of these e>iiacts are acom ewd for in the 2003 RPAL a The 2003 RPA$ litii to pram opiadjupporft. In moo, the rs w reveals drat the 1997 RPAs 0legeily tdkd on vohmtmy maast m and acaaaily offbcUd asd7 eight pros, ow ofdts m , dma two tisaasaard permitted to ip fmvmd zwk ft edwkhms of the Liftd Species. to addition, am M RPAs do vat uwus t for rise emmuMn or somul ay deed of =W of the pzojeets. For these ems, to Covet finds that the 2003 RPAs, which nerdy roedopt the 1997 RDAs, nu as uft to the evidaaca t dwe FW9 at the time tlse 2003 BO mm issaed and the 20M RPAs proposed, do not pratect apmd jeapats dy, sod arc dWrd ose lnivaiid ender the APA.14 463 US. at 43. AeaaAtoy, FlsiniiW Marian fin suety Judgment an Camtt I is ( unftd w* respect to FWS's tamosnetwafitimofdo 2003 RPA& 3. Was FEMA's adoption of the 2003 RDAs a Mtmy, boa:, am ohm ofilkwolorl or o&mvdwnot in accordance with the Isar Fouawke dw iaetmoce of a bidkgicil opitsi i to notion ag*W IF I p a i xs wbedssa, and in what nos = to pwcad with fire action, in 14 t of 1te ESA section 7 14FW S Ow 0901k 1019M O&Aftd dwt "do IPA dom-t do =vW FEB" SiW A.R. 031. 19 Fl 1 4 03l8i1/0S 15:30 FAZ 306 536 T. FAIL BACK OWLS Atmrs and the biological ap m m. The ultimate respansibifit' y tbz detcrammmg wh ftw motion 7 of the ESA has bade xditdlad rem with to Word agency that was engaged in canaultadnrt. Case No.94- 2899-CN 2001 WL 1491 SW ai *b (&D. Fla. hmc 2g, 2001). WbUc oxm*odm mqy ttrc aetsan agpiay's obligations uada tbhc BSA, die action agency carrot rely solely an the lt>o$ sgdnay's r+eanmamm detioos tQ cooclusivdy 0SUM li its comp iaom with the shModunqubmamb oftha ESA. Lhbd sun Dom Of 898 M 1410,1415 (ft Cir.1990)(cttalioas omeM fmA mis adda4 La other woW* a fidwW egmq wuna abwpw its mepatsibift tons= dot its aattoon wig mt jeopu*m a listed speaks its decision to My on die mcaiamandatiorra of dm omsuftg apnq must = a bm bem arbuiy tamd Plai dit mdnt in that FEMA provided "no ana# = t0 uppoat do adop" otdo RPA, and instead relied anti * an FWS"a aml AL" Pl. Proposed Ph diap of Feat and CmwI of Law at is 28-29. As a mwlt, andead that FEMA is !fable under the ESA and do APA far failing to coosidec ret "m s and adorwise wfi* . bL FEMA" dtspmug liah ft ender the ESA and the APA, a qp= tbxt "(t)e tact that FEMA is WVkmeaft tha RPA iaownmqudW by FWS is a dde ice due FEMA is not violating the ESA or odwrwin acting in an a bitimy or egaicwns £aaMoa." Def. W em. at:19. Accord , it appears dW FIRMA =wed= ihm d coed son no Wepcoduambib of the stifficismy of tbv 2M RPAs. and maioaim that its =dinner on FWS's mootmoaaldatlo= was appmpriata under the ESA and the APA. 20 Q 007 03/29/05 15:31 FAX 305 $36 1214 FAX BACK W W`le the Cmt agn= with FEMA that it cm set► on the 1e0owwnMcmsofFM, du Coact does not agree witb F'EMA's conft*an $aid it am do so in = iadepa dent analysis. UndwtboAPAinagopry=Wcoudwtdcvwinfarmatimbipfixe` sctiug. Mom M MA has ckuly passed all of its stabdandve oWi pdm trader the BSA to FWS. 7% it amnot dm As a result, FMAA's OdMiod &AM to engage is nay iadgm dM soon of the ianay a�ithe �03 RPAs taaders iQs aetiem srlfliAs�r and �ciciaus. • Acoaadingly, Plaintiffs' Motion for Samsnuy Judgeamnt on Cmaat I is granted with respect to FEMA's aedapsion of dae 2W RPA& B. Cotmt a Plaintiffs allege, in Count H of tl>* CaaaplsiM ftmt 60 2003 RPAs do pat Waludely prows ap" advam moMeWon of the catical bob" of the silver not rat. Second Amended C=pl.145A. The BSA re I ease federal sgency to' = me the my action.'.. is not Wetly to joopmdiat the cond mod a istraoe of mW eadwa d apaaes.. . � msutt in the deahawrtioa.m adv�ase modtf�'on of habjoeR of such spocies.A l5 U.S.C. §1536(ax!). An eWou rca to in jeopsmdy when it "directly or kWbzctly ... reduces app mdably the lilpd%oW of both the survival and zeoovay of a tinted species in the wUby reducing the repmdacdoo, numbers ar diftV w eldest species.' 50 C.F.R. $ 402.02. Adverse modifiaaion, an dw other head, is' a direct or h dimct man that approdably &mdnidres the vW= of critic d habitat for bath du survival and reoway of a fisted species. • "hLAeovedinglY= sender the sdvease aaodaa afrrifiCal imbiber amid jeopardy should be evaluated mepm'*. Sim 55 F_ Sam 2d at 1265 (OwIdning dam, 21 fj On jk/ ft/ @ 1 w AdMMYweM w 4 e. 63/29/05 15:31 FAX 305 536 7+.4 M RACK , t although there is easafdbrebk ovahr bdwem adverse modificee6m and jeop *. file ESA a tablisb es tvm stpuate daudards to be eoadders dj. Plains Chita that FM's failure to evalmde whd w FTMA's NFV was adverady modifying tbo critical habitat of fire dhw rice at sep m * dam its analysis of whther the NFM was cauft jooperrlj► in &a 2M BQ vi ddm the Mk Pl. Mem at 24. lhwdwr, PlaiwtiM M62WA dMft 2M APAs fad to powd against adverse mpMcmdmm ofdm tribes babbe of ffio sitm rift rat. U Defcadmits. ® the odw hand. maimd that the 2003 RPAa adequd* patoct advaessa mod'ificawn of the a twd habitat because tied 2©03 RPA9 area ind Ww ad sihw rife rat eiitwal hbiW that is s*eot to NFV-gxm9w d flood kwxa=L Dad: Rq* at 13. Defmdma albs wgn tt a siagle RPA auf momly potaats apsitest adverse modificadan of critical haxt and jeapwdy becat a bddm modiiiaedm is the stood cause of jeopardy. Ord Mem. at 7.5. While Dc&3dw ' argmaems am n ummal k, they cameot justify FWS's ham to address the sufficiency of dw 1997 mid 2003 RPAa is poftcdvg avian adveme modification ofden critical b of ft sba.iice no often the fact. Tamd, to am* VAth fho Mqubmi aats of tlee ESA, FWS should have adthesaad the efiFxt of the 1997 RPAs on the aidw hdam, of the diver rice rat in ti a y00E3 BIB, alma wavided an aepiamdon ra r why a sirWe RPA in 2003 was juMc eat to - nip t adverse m1ificadon mmd jaopsedy. S 55 F. Sup. 2d at 1265 (if a fedacal ageasy adverse modificafiame ad jeopwdy in a sia& RPA, it should ptpovide so aeplanatian for why it is dame so}. FWS's tied m do so r uhn Its actiam its attunes gd*trwy atd aepitaimm IMMBMMVehide Mom, 463 U.S. at 43. 0 Qhcos 03/29/05 15:32 FAX 305 530 7&.4 FAX BACK Aamdio*. Plus Modon for gummy Jnt*a� an Cotmt R is GRAM With to FWS .!6 C. cam M in Cbunt M of ureic Contpiah* cb m dud FBMA ltas lhilad to dew a terms nWwn PMPM for th�y9 _Listed Spedes. ES]Qte` A� § 7(AXI) mgaw s ewh f�r win ==hdian with and With -Wmxe of wnserwdian of endangered species" 156 F.3d 606, 618 (5tb Cir.1"8). foderd law does "oonseaut3 dW or "ta on and do axe of all methods and ptoeesum ea which are ne= my to lung say atdsorwil species or tbtca med spes m to the poW at Wbich d" eoesatnca provided pasasat m 0& chapter we no laW fir." 16 US -CA I I S32(3)- 'Tlmvfoeq to fu= the iegairanatt, of ESA f 7(4L){1) a fedeW agency mast develop a program aimed at Wgmrrittg fba vid ifity of a speoaes so that it e4aouily may be delisted. Yn Rt18lfing the mQa�ememats of BSA �7(axf as sang as sn e/mscy hn implem=d ed a program aimed at cmservatioo. dw ` cotitt is not tfm paper phoe to adze and dad= tho dellmdan have vk&nd dwESA as a unner of law by not invkracoft the processes fisted by Waind4" Odra& s of 130 F. - _ 2d at 135. FEMA argaes that it has AgMad its ESA j 7(a)(1) duq by con dadng to 1 11 1a1 pa+ovis. is its Commmaity Ranting System CM-) b p r mote the impl ion of % addidaR. 0 d-nttm I abVM PR 5 a/optka afttx 2M RPAS way wbftmy and cgxkkm& tm tM V(A). I%em wa. Ptdar ft Modm for Baww y ledgmeat on Cbmat 11 is ORANTED aitb taapo a to PeMA. 23 ogle ge..w.wA r..a. , w.M0~9604..._ - _ m 03it9/05 15:32 M 305 636 72`4 FAX RAG'S habitat conservation pwnigg.k Me ml em. at 29. Under tl:n pmu m FEMA pros Wcendw credits to am maut a that dcveiop and impkmmt habitai owrmavadon glans to batdt gaemmed and emdaapred 9ccfm. IL FBMA adtmtt do Monmo CmWy is cueatly melsgMe to modes amdits. hL Neese®, FEM eomboft 69EM 17(a)(1) is dompriateiy VkwW witk do oVWA aoam of tlu NFL mdowmd% and not safely within Mmm Cotmty. M InA49M of tt awm art Defendant Talks on Q� SWj Case No. 0040140 2W3 WL 117M (D. Or. ray 2, 2401 XIBEL" j. In S the plWWfichallarged 6eada Ws eortaarreaiaa p my mn far des ode as am. IL In dimmisming pbdo iffs claim, ifs cowl hdd the pl bWbad tmtstemed a cause of action um& r ESA 4 7(a)(1) beam fty allepd tilt de&mdant's contas,radom plan was insuf cica sat dud deandwbdhuW to develop a plan. hL The carat nated fim V OiVRC's claim is tharthe Carps bm Wlcdty its cOnmwvwm pognmt in wwrdmw with ESA J 7(a)(l), it way fife an ascended campiait withten daps,-'! IL at +5(empbWs added). As a resak FS" bas bnpmpedy r&W an ONRC becmn Pb infiffa' daim is this can mpecificaRy sllen Ad FEMA ha failed tu'Sdambf7 or mm program for ow marving the Covered gpe dW Pl. CamnpL at 155 (e mom eddu*. is FMA Am coolants tat it in QeIMW le =A f 7(@V) dwks tpy appobda ; mtrpetaoa, eo demd War-WW cacedW mwwnittg a math Florida muNVadae army pWL WMIs it cease VI 1prieoa drat FFMA aaad a sddrpee m 0 sere m e*p giro to got loot WO b a made case a'dca dad6ce aid» i.b d species FEM does natpW to my , ik�ue efbw abt mdaaoeatdwe meetings aW meail m =dsbbEU§ 74xt) 17pwdemaom ooOM bo FMA'a a#ealsa>;aas, ud6w aw sty a6w we abed by OWbmb ata sbmb for rie pcaF n itim mac m aaffm sm"an . rAimd Owns ration pcapma deal io out simW at and bona eOxot an, m. aomowva *m acme pododar Lbbd Species at taws to Me cvam mocha. 9aataead Isr.al� � �ant:iriaaa► - - „� _ _ __ w,. _ �. _ _ _ _ 03/29/05 15:33 FAX 305 $36 77" FAX BACK 'Mm. the Court mint &ftrmiae wbadw the CRS p mWm sad da FF.MA's ESA 17(a)(1) dft to dmrodop a roomvatim paagi - comm *c listed Species. [Facia ESA 17(a)(1) as army has it speci8a tAw thaw a gwwWimed dM iD mmem a e4ft Siam alk Y. 91dom 156 F.3d 6K 619 (5& CIL IMDdmdomd 200S WL 221253 (D_ Or..Iaa. 31, 2MI). Cuft as dsmand gM Wk man County m prohAdwd fram pm ti WuS is the CRS p 5 - n because of - , 1, r , 0snoc v*da dht pangneds ill I, I As a Tema . i Ma C mt was to adopt FEMA's etgtn m it world mean that a Wad any *add fulfill its ESA � 7(aXl) consavatm duty by W* men ft a whmtw nutioad pww m that hum effect on the specific spedw affiecW by die agenq's acdom. Such a bddi g woWd be irm� wltb tlm plat► read3tAg sad iatem of ESA 7{axi j.a• Acoasdingly. the Coast firms that FEMA has iiRW to implaasadt any ownwagon plan with reaped to the Listed Species ea ngaited by BSA § 7(axl) sad Plabmtiffi ens enti&A to amumM judgaame on CA" IlL VL CONCLUSION Based an fte fategdmg ft is ORDMW AND ADJUDGED as Mom 1) Ph&diffa' Mod" for Smmmy Jet is ORAN'1D on C=W 1, U and III: 2) Dc&ndans' Mount for Smumy Jo mmr is DE UM; '*As AWMW AOM %a d= 7(axt) of do nA dh - ampomAm ao d v4V oaaamv11 on pnr.imed at dam &o pmomdw mods Ailowbg a bd xd wary roc so* deb nago a mm v bhos taft astr area ae die gmcit spoduv eld cmde iae die lao w of*k sum u 03/29/05 15:33 FAX 305 536 7274 FAZ RACK ' 013 3, M A""BCMbamrftaftt w 4 iM pgp� aR g" "�� Placa 7 pn 2M. DMM MD GRVMW in • cool=pmviid& AN c mad afnmld m UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 90-10037-CIV-MOORE FLORIDA KEY DEER, et al., Plaintiffs, VS. ORDER 0liM MICHAEL D. BROWN, et al.. Defendants. THIS CAUSE came before the Court upon Plaintiffs' Motion for a Permanent Injunction (DE #219). UPON CONSIDERATION of the Motion, the Response, and the pertinent portions of the record, the Court enters the following Order. I. BACKGROUND A. Parties Plaintiffs, the National Wildlife Federation, Florida Wildlife Federation, and Defenders of Wildlife, brought this action pursuant to the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA") on behalf of eight endangered and threatened species of the Florida Keys: the Key Largo cotton mouse, Key Deer, Key Largo woodrat, Lower Keys marsh rabbit, Schaus' swallowtail butterfly, silver rice rat, Stock Island tree snail and Key tree -cactus.' Defendants are Michael Brown, in his official 'With the exception of the Key tree -cactus and Schaus' swallowtail butterfly, all of the species are endemic to the Florida Keys. �y Capacity as the Undersecretary of Emergency Preparedness and Response for the Department of Homeland Security, which includes the Federal Emergency Management Agency ("FEMA") and Gale Norton, in her official capacity as Secretary of the United States Department of the Interior, which includes the Fish and Wildlife Service ("FWS"). B. Procedural History Plaintiffs filed this action in 1990, seeking to compel FEMA to enter into ESA consultation with FWS conceming FEMA's administration of the National Flood Insurance Program ("NFIP") in the Florida Keys. Following a bench trial, on August 24, 1994, the undersigned directed FEMA to consult with FWS in accordance with its duties under 16 U.S C. § I536(a)(2)("ESA §7(a)(2)"). Flodda KeXv Stickney,, 864 F. Supp. 1222 (S.D. Fla. 1994). As a result of that consultation, FWS determined, in its 1997 Biological Opinion (" 1997 BO"), that FEMA's administration of the NFIP within the Florida Keys was jeopardizing the Key Deer, Key Largo cotton mouse, Key Largo woodrat, Key tree -cactus, Lower Keys marsh rabbit, Schaus' swallowtail butterfly, silver rice rat, Garber's Sponge and Stock Island tree snail. As required by 16 U.S.C. § 1536(b)(3)(A), FWS proposed reasonable and prudent alternatives ("RPAs") which it concluded would eliminate jeopardy to these species and allow FEMA to continue implementing the NFIP in the Florida Keys. FEMA adopted the 1997 RPAs recommended by FWS as its plan for avoiding jeopardy. Plaintiffs filed an Amended Complaint in 1997 (DE #119), claiming that the BO and accompanying RPAs recommended by FWS, and implemented by FEMA, violated both the ESA and APA. Subsequently, in 2003, FWS and FEMA re -initiated the consultation process.2 As a result of this re -initiation, FWS issued an amended BO ("2003 BO"). Like the 1997 BO, the 2003 BO concluded that FEMA's administration of the NFIP in the Florida Keys was jeopardizing the same species as those listed in the 1997 BO, with the exception of the Garber's Sponge ("Listed Species"). As required by law, the 2003 BO included RDAs which FEMA again adopted ("2003 RPAs"). Plaintiffs then filed a Second Amended Complaint (DE #187) in 2003 challenging the sufficiency of the 2003 BO and the 2003 RDAs. On March 29, 2005, the Court granted Plaintiffs' Motion for Summary Judgment ("March 29, 2005 Order"). Specifically, the Court held: (1) that FWS's preparation of the 2003 BO was arbitrary, capricious or otherwise not in accordance with the law; (2) that the 2003 RPAs failed to protect against jeopardy; (3) that FEMA's failure to engage in any independent analysis of the sufficiency of the 2003 BO and 2003 RPAs was arbitrary, capricious or otherwise not in accordance with the law; and (4) that FEMA was in violation of ESA § 7(a)(1) for failing to develop and implement a conservation program for the Listed Species. Plaintiffs now move for a permanent injunction to enjoin FEMA from issuing flood 'The 1997 BO contained a re -initiation clause which required FEMA to re -initiate consultation if Monroe County did not complete a habitat recovery plan within four years. FWS A.R. #20 at 5.5. Because :Monroe County failed to complete a plan, FEMA re -initiated consultation as required. 'Plaintiff's contend, and Defendants do not dispute, that the 2003 RDAs are materially identical to the 1997 RDAs. Def. Mot. For Summ. J. at 1. (FWS reaffirmed the RPA, and FEMA has elected to continue implementing the RPA). insurance for any new development in the suitable habitats of the Listed Species in Monroe County, Florida, until such time as the Court concludes that Defendants have complied with the requirements of the ESA and the APA.` In addition, Plaintiffs request that the Court retain jurisdiction over the case until such time as the Court concludes that Defendants have complied with the March 29 Order. Finally, Plaintiffs request that the Court remand the action to Defendants to prepare a now BO and issue new RPAs consistent with requirements of the )ESA, APA, and the March 29, Order, within nine months. Defendants have agreed to re -initiate consultation in light of the March 29, 2005 Order. In addition, Defendants do not contest Plaintiffs' request that the Court retain jurisdiction over the case until such time as the Court concludes that Defendants have complied with the March 29, 2005 Order. 11trefore, the only issue left to be resolved is Plaintiffs' Motion for a Permanent Injunction, which Defendants have opposed. II. STANDARD FOR A PERMANENT INJUNCTION Generally, in order to be entitled to a permanent injunction, a plaintiff must show: (1) success on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the plaintiff will outweigh any threatened harm the injunction may do to defendant; and (4) granting the permanent injunction will not disserve the public interest. Siegel v. LgPore, 234 F.3d 1163, 1176 (l I th Cir. 2000); Clark Const. Co.. Inc, v. P n& 930 F. Supp 1470. 1477 (M.D. Ala. 1996). `Plaintiffs define new development as "any residential or commercial development where construction of the structure has yet to begin." Pl. Mem. at 2. 4 However, in cases involving the ESA, the standard is different. Specifically, the third and fourth prongs of the injunction analysis have been foreclosed by Congress. &ee TVA v. Hill, 437 U.S. 153 (1978). As the Supreme Court held in TVA, "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities ...." Sys& lsk Simban v Qn, 127 F.3d 155, 160 (9th Cir. 1997) (holding that "the balancing and public interest prongs have been answered by Congress' determination that the balance of hardships and the public interest tips heavily in favor of protected species."); Leatherback Sea Turtle v. Flagler_CaUnlyBd. of Co y QM, M, 359 F. Supp. 2d 1209, 1212 (M.D. Fla. 2004)(finding that, given the monumental and important aims of the ESA, Congress effectively removed from the courts their traditional equitable discretion in injunction proceedings). Similarly, this Court found in the 1994 Order that: precedent in this Circuit clearly supports the congressional intent that the balance of the equities should favor an endangered species whenever the [ESA) has been violated.... Injunctive relief serves the public interest where it furthers that clearly -expressed purpose of a statute, as in the present [ESA] case ..." Defendants appear to agree that the third prong of the injunction analysis has been foreclosed in ESA cases. Def. Mew. at 3. However, Defendants argue that the public interest prong has not been foreclosed in ESA cases, and that entering an injunction in this case would disserve the public interest. Id. at 19. In an abundance of caution, the Court will therefore address the merits of Defendants arguments regarding the public interest factors. III. DISCUSSION The parties do not dispute that Plaintiffs have been successful on the merits. In addition, as discussed supra, the law is clear that the balance of harms prong of the injunction analysis weighs in favor of the Listed Species. Accordingly, in deciding whether Plaintiffs are entitled to an injunction, the Court will address: (1) whether an injunction is necessary to prevent irreparable harm; and (2) Defendants' arguments regarding the public interest prong. Finally, the Court will address the additional arguments raised by Defendants in their Memorandum opposing Plaintiffs' Motion for a Permanent Injunction.$ A. Irreparable Injury In deciding whether an injunction is necessary to prevent irreparable harm, Courts generally look to whether plaintiff lacks an adequate remedy at law for the damages suffered. MediaOne of Delaware. ipc. v. E&A Bmers and Cellulars, 43 F. Supp. 2d 1348, 1354 (S.D. Fla 1998). However, when addressing environmental harms, the Supreme Court has held that "environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable." &maco Productiog, 480 U.S. 531, 545 (1987), Moreover, where injury to an endangered species is threatened, legal remedies are necessarily inadequate. SSe "Mere has also been an amicus curiae brief submitted by the National Association of Home Builders ("NAHB-). In its brief, the NAHB either reargues issues that have already been decided by this Court, i.e. that the Listed Species are adequately protected under the current RDAs, or rehashes the arguments raised by Defendants. Specifically, the NAHB focuses much of its brief on the public interest factors. However, the NAHB's concept of the public interest in the preservation of endangered species is too narrow, and transparently reveals their own, private interests. Accordingly, the Court concludes that the amicus brief raises no new issues, and is therefore given little weight by the Court. 6 Weinberprr v. Romero-Barcelo, 456 U.S. 30, 314 (1982)(explaining that only injunctive relief can vindicate the objectives of the ESA when the existence of an endangered species is threatened); &ECLQub Y. NortUC, 207 F.Supp.2d 1310 (S.D.AIa. 2002)(finding that the threatened destruction of the optimal habitat of an endangered species is clearly irreparable). Accordingly, in determining whether the irreparable injury prong has been satisfied, the Court considers whether environmental harm is likely to occur. Plaintiffs ask the Court to take a step further, and find that the irreparable injury prong, much like the third and fourth prongs of the injunction analysis, is foreclosed in ESA cases. According to Plaintiffs, irreparable harm is presumed when the ESA has been violated. Pl. Mem. at 5. Defendants disagree, arguing that Plaintiffs must demonstrate irreparable harm in cases involving violations of the ESA. Def. Mem. at 4, While the Court is inclined to agree with Plaintiffs', the facts of this case make it unnecessary to do so. A review of the record clearly demonstrates that, absent an injunction, environmental harm is likely to occur. Specifically, the 2003 BO contains the following conclusions: habitats will constitute a permanent reduction in the number of 'It does not appear that the Eleventh Circuit has addressed whether irreparable harm is presumed from violations of the ESA. However, district courts within this circuit, as well as other circuit courts, have concluded that violations of the ESA are der ar irreparable. ee L.& Ularligad.jurtle v Comgty CounaLl 1 'a Fl ri 92 F. Supp. 2d 1296 (M.D.F1a.2000) "any threatened harm (under the ESA] is +fir 51 irreparable harm" (emphasis in original); Hawksbill Sea Drde v. Feder 1 Eme1gc;ncv Management Aggna,126 F.3d 461 (3rd Cir. 1997)(when faced with a request for injunctive relief under the ESA., a plaintiff need only show that a defendant has violated the act to be entitled to injunctive relief). Presuming irreparable harm is also consistent with the language and intent of the ESA. &&]XA, 453 U.S. 153. cotton mice in the Florida Keys and reduce the long-term conservation of Key -Largo cotton mice." bab_itat loss will constitute a permanent reduction in the land available in the Florida Keys for Key Largo woodrats, and generally reduce the long term number conservation for the remaining population." "Any occupied; habitat loss will generally reduce the viability of the remaining population [of the lower Keys marsh rabbit], In addition, the proposed action will increase the human population of the Keys which will result in increases in feral and domestic cats, a primary threat to this species." Any habitat loss will constitute a further, permanent reduction in the number of [Schaus swallowtail butterfly] ... and generally reduce the overall viability for the remaining population. Any habitat loss will constitute a further, permanent reduction in the population of [the Silver rice rat] ... and reduce the overall viability for the remaining population. FWS A.R. #88 at 45 -48 (emphasis added). In addition, in a separate discussion of the status of the Key deer, FWS notes that: the contraction in range [due to habitat loss and fragmentation] has decreased the overall viability of the Key deer population .... The_ BIWn threat to tt e continued existence if the Key, deer is the alteration of habitat caiused by reidSntial and commercial c=truction sativities. FWS A.R. #88 at 9 (emphasis added). Accordingly, Defendants' own administrative record clearly illustrates that any habitat loss or fragmentation jeopardizes the continued existence of the Listed Species. 0 Nevertheless, Defendants argue that an injunction is unnecessary because the continued implementation of the 2003 RDAs will adequately protect against irreparable harm during the remand period. Def. Mem. at 16. This argument is disingenuous. As this Court has already concluded in the May 29, 2005 Order, II]n summation, the record reveals that the 1997 RPAs illegally relied on voluntary measures and actually affected only eight projects, out of the more than two thousand permitted to go forward 3mijbin the jujI&Ie habitat of the Listed Species. In addition, the 1997 RPAs do not account for the cumulative or secondary effects of any of the projects. For these reasons, the Court finds that the 2003 RPAs, which merely re -adopt the 1997 RPAs, run counter to the evidence before FWS at the time the 2003 BO was issued and the 2003 RPAs proposed, do not protect against jeopardy, and are therefore invalid under the APA. St Motor Vehigl� MfM._Ass'n., 463 U.S. at 43. (footnotes omitted)(emphasis in original). Thus, contrary to Defendants assertions, the continued implementation of the 2003 RPAs during the remand period will not prevent Plaintiffs from suffering irreparable harm. As discussed sue, jeopardizing the existence of an endangered or threatened species through destruction of suitable habitat clearly constitutes irreparable harm. Sre Norton- 207 F. Supp. 2d at1340. As a result, regardless of whether violations of the ESA are pr sg irreparable, the Court concludes that an injunction is necessary to prevent irreparable harm. B. Public Interest As discussed supra, the traditional consideration of public interest factors has been foreclosed in cases involving violations of the ESA. However, even assuming Defendants 9 are correct, and that the Court should consider the public interest factors in this case, the Court concludes that the public interest is best served by granting an injunction. Defendants argue that the interests of the NAHB, should be "carefully considered" when addressing the public interest factors. Def. Mem. at 18. Accordingly, it appears that Defendants contend that the NAHB represents the public interest, and that their interests outweigh the other interests relating to the protection of endangered species. This argument is unsupported by the ESA and contrary to Congressional intent and Supreme Court precedent. See generally V 453 U.S. 153. The NAHB. is an association of private developers, and represents the interests of its members. See Amicus Brief at 1. The NAHB opposes Plaintiffs' Motion on the grounds that an injunction would disserve the public's interest in receiving flood insurance under the NFIA. [d at 7. The NAHB's interpretation of the relevant public interest regarding violations of the ESA is too narrow. As the Supreme Court held in TVA, "[fJrom the most narrow possible point of view, it is in . The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask." 437 U.S. at 178 (emphasis in original). Furthermore, "Congress has decided that any possible expense and inconvenience to the public cannot equal the potential loss from extinction." Sierra Club v. Yard}, 816 F.2d 1376, 1386 n. 13; IYA. 437 U.S. at 188 ("Quite obviously, it would be difficult for a court to balance the loss of a sum certain -even $100 million -against a congressionally declared "incalculable" value, even assuming we had the power to engage to in such a weighing process, which we emphatically do not."). Finally, the public interest, as identified by Congress in passing the ESA, favors informed agency decision -malting and the protection of endangered species. Norton • 247 F. Supp. 2d at 1342. Accordingly, the Court is not persuaded that Defendants are correct in arguing that the interests represented by the NAHB should be "carefully considered" when addressing the public's interest associated with the protection of endangered species. Defendants also contend that an injunction would disserve the public interest because it would cause financial hardship to some property owners in Monroe County by making it more expensive to obtain flood insurance for new construction within the suitable habitat of the Listed Species. Def. Mem. at 19. Again, Defendants perception of the public interest analysis it too narrow. ,M gam]l Vim, 437 U.S. at 153. First, the Court notes that certain areas of the Florida Keys are included in the Coastal Barrier Resource System and therefore currently excluded from receiving flood insurance pursuant to the Coastal Barrier Resource Act. Pl. Mem. at 14, There is nothing in the record to indicate that exclusion of these areas from receiving federal flood insurance has caused the type of economic hardship or personal distress described by Defendants. In addition, assuming Defendants are correct, and that an injunction would make it more expensive for landowners to obtain flood insurance within the suitable habitat of the Listed Species, such an outcome would not disserve the public interest. instead, providing financial incentive for development outside of the suitable habitat of the Listed Species, fits squarely within the goals of the ESA. While the Court is sensitive to the interests of individuals who may be affected by an injunction, Congress has mandated that the protection of endangered species is to be given the highest of priorities. n; & 437 U.S. at 174. Therefore, the Court cannot conclude that raising the cost of development for sogne landowners in the Florida Keys outweighs the public's interest in the preservation of endangered species. In addition, as Plaintiffs point out, and as Defendants fail to dispute, given the local ordinances which limit the amount of development in the Florida Keys, an injunction is not likely to have a large overall affect on development in the Florida Keys. So Monroe County Land Development Regulations, Chapter 9.5, § 9.5-120, Instead, the more likely outcome of an injunction would be a shift of development towards those areas that are not within the suitable habitat of the Listed Species. In sumnnation, even assuming the public interest factors have not been foreclosed in cases involving violations of the ESA, it is clear that "the public interest, as identified by Congress in passing.. . the ESA, favors ... the protection of endangered species." Norton, 207 F. Supp. 2d at 1342. Defendants' arguments regarding the public interest factors do nothing to overcome the public interest factors identified by Congress. D. Defendants Additional Arguments Defendants raise additional arguments in support of their opposition to Plaintiffs' Motion for a Permanent Injunction, First, Defendants contend that entering an injunction in this case would exceed the Court's equitable power. Def. Mem. at 6. Next, Defendants argue that Plaintiffs' Motion should be denied because it is contrary to Congressional intent. a at 12. Finally, Defendants maintain that the Court should not enter an injunction because doing so would be inconsistent with section 7(d) of the ESA, 16 U.S.C. § 1536 (d). LL at 12 18. 1. Court's Power According to Defendants, because FEMA lacks the discretion to limit the availability of flood insurance within an otherwise eligible community, the Court cannot prohibit FEMA from issuing new flood insurance policies within the suitable habitat of the Listed Species during the remand period Def. Mem. at 8. Plaintiffs disagree, arguing: (1) that regardless of whether FEMA can or cannot limit the availability of flood insurance within an otherwise eligible community, FEMA has ample discretion under the NFIA to implement the NFIP in a manner consistent with the ESA; and (2) the Court has ample authority to limit the availability of flood insurance within the suitable habitat of the Listed Species until such time as Defendants have convinced the Court that they have complied with the requirements of the ESA and the APA. The Court agrees with Plaintiffs on both issues. First, as discussed in , this Court, and other courts, have concluded that FEMA has sufficient discretion to implement the NFIP in a manner consistent with the ESA.' Second, FEMA's discretion, or lack thereof, to curtail the availability of flood insurance within an otherwise eligible community does not limit the Court's ability to enjoin FEMA from issuing flood insurance to new developments within the suitable habitat of the Listed Species during the remand period. a. FEMA has discretion to Implement the NFIP consistent with the requirements of the ESA. 'The Supreme Court has consistently instructed that statutes written in broad, sweeping language should be given broad, sweeping application," Consumer „FIgctronics Ass'n v. F.C.C„ 347 F.3d 291,298 (D.C. Cir. 2003). 13 In the 1994 Order, this Court held that: FEMA does in fact have ample discretion to implement the NFIP in a way that is compatible with the ESA. In enacting the NFIA, Congress gave FEMA broad discretion to "issue such regulations as may be necessary to carry out the purpose of this Act." 42 U.S. C.§ 4128(a). The NFIA also gives FEMA broad discretion to establish specific criteria of eligibility for communities to participate in the NFIP. It § 4012 (c). FEMA has done so, at 44 C.F.R. Part 60, Criteria for Land Management and Use. These federal regulations specifically set forth criteria for local land use regulations that, at a minimum, communities must adopt in order to participate in the NFIP.... In addition to adopting regulations setting criteria for land management and use, FEMA has also adopted regulations to implement the Council on Environmental Quality's (CEQ) regulations, 40 C.F.R. §§ 1500.1 et seq., which in turn implement the requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. FEMA's regulations, entitled "Environmental Considerations," provides "policy and procedures to enable [FEMA] officials to be informed of and to take into account environmental considerations when authorizing or approving major FEMA actions that significantly affect the environment of the United States." 44 C.F.R. § 10. I(a). FEMA's regulatory criteria, designed to determine whether its actions "significantly affect the environment," include FEMA's consideration of whether "an action will affect, in large measure, wi�U& p2puWioas aLd theiEa ' ... , or delicate or rare ecosystc-m1,, including species," h, § 10.8(b)(2)(v) (emphasis supplied); see 05 § 10.8(e)(5). FEMA's regulations also set forth FEMA's environmental policy: FEMA shall act with care to assure that, in carrying out its responsibility, iricludi... or insurance. it a manoer cQnsistent with national environm=tal 20licila... . (emphasis in original). Accordingly, this Court has already concluded that the NFIA provides FEMA with sufficient discretion to meet the requirements of the ESA-6 a Plaintiffs argue that the 1994 Order collaterally estops Defendants from re -arguing that FEMA does not have the discretion under the NFIA to implement the NFIP in a manner consistent with the ESA. Defendants, disagree arguing that the 1994 Order and the instant Motion are part of the same proceeding, and therefore the law of the case doctrine applies. Both parties rely on Arizona v. CalifQmia, 460 U.S. 605 (1983). In Arizona. the Supreme Court held that, although the technical rules of preclusion were not strictly applicable, the need for certainty 14 Other courts have also held that FEMA has discretion to implement the NFIP in a manner consistent with the ESA. A[�1 Wildlife Fed'n v. FEMA, 345 F. Supp. 2d 1151, 1173 (W.D. Wash. 2004). In Natiojaal Wildlife the Court held that: [although] FEMA has no discretion when it comes to the provision of flood insurance to persons in NFIP-eligible communities, it has discretion to act in a manner that could benefit [protected species] ... in mapping the floodplains, in developing and promulgating the minimum eligibility criteria, and in implementing the CRS [community rating system]. Accordingly, the Court holds that FEMA's implementation of the NFIP, with the exception of the actual sale of flood insurance, is a discretionary "agency action" for tt?e purposes of Section 7(a)(2) of the ESA. lac; sM �4 American Rivers v. U.S._Artnv_Cor" of Engineers„ 271 F. Supp.2d 230, 252 (D.D.C.2003) (finding that the Flood Control Act provided the Secretary of the Army with sufficient discretion to consider its ESA obligations, and that "ESA compliance can come at the expense of other interests, including navigation and flood control given the Supreme Court's conclusion that the ESA reveal[ed] a conscious decision by Congress to give endangered species rp io ity over the `primary missions' of federal agencies)(internal quotations and citation omitted)(emphasis in original). Accordingly, it is clear that, regardless of whether FEMA can limit the availability and finality in adjudicatory proceedings weighed against allowing the relitigation of certain claims. Those same principles apply here. This case has gone through several stages of I itigation since it was filed in 1990, one of which being the Court's conclusion in 1994 that FEMA had sufficient discretion to implement the NFIP in a manner consistent with the ESA. Accordingly, while the principals of preclusion are not strictly applicable to the instant proceeding, the need for finality after fifteen years of litigation weighs against relitigatiog whether the NFIA provides FEMA with adequate discretion to carry out the NFIP consistent with the requirements of the ESA. The Court has already held that FEMA has such discretion. 15 of flood insurance within an otherwise eligible community, FEMA has sufficient discretion within the framework of the NFIA to implement the NFIP in a manner consistent with the requirements of the ESA.' See American Rivers, 271 F. Supp.2d at 252 (holding that "with regard to ESA obligations, courts have found that if an agency has gpy statutory discretion over the action in question, that agency has the authority, and thus the responsibility, to comply with the ESA.")(emphasis added). Therefore, it is not an abuse of discretion for the Court to enter an injunction in this case. b. The Court is within its power to issue and injunction Under section 11 of the ESA a court may, "enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision" of the ESA "or regulation issued under the authority thereof... " 16 U.S.C. § 1540(g)(1)(A). "[T]here are no exemptions in the [ESA] for federal agencies...." TVA, 437 U.S. at 188. Thus, the ESA clearly provides the Court with the ability to enter an injunction. The fact that FEMA may be unable to limit the availability of flood insurance within an otherwise eligible community is unrelated to the Court's ability to prevent Plaintiffs from suffering irreparable harm until such time as an adequate BO is ' The Court notes that its conclusion that FEMA has sufficient discretion under the NFIA to implement the NFiP consistent with the requirements of the ESA was an essential holding of the 1994 Order. if FEMA had no discretion to meet the requirements of the ESA, there would be no point in requiring consultation. In other words, either FEMA must consult with FWS and develop reasonable and prudent alternatives that satisfy the requirements of the ESA or they should not consult at all. Requiring consultation, but then later holding that FEMA has no discretion to administer the NFiP consistent with the requirements of the ESA, would render the consultation requirement meaningless. 16 prepared and sufficient RDAs in place.'° Injunctions have been entered pending the completion of adequate biological opinions in similar cases. For example, in - S v. Peterson, 753 F.24 754, 764 (9th Cir.1985), the Ninth Circuit enjoined the Forest Service from constructing a road, pending compliance with the ESA. 'There, the Court concluded that the Forest Service's failure to consult with FWS violated the procedural requirements of the ESA, and that "[gliven a substantial procedural violation of the ESA in connection with a federal project, the remedy n u bean injunction of the project pending compliance with the ESA." IL (emphasis added). Similarly, in Greenneace Foundafion v. Mints. 122 F.Supp. 2d 1123, 1137 (D. Hawaii 2000), the court entered an injunction pending the completion of an adequate biological opinion. Id. In Mlnetathe defendants prepared a biological opinion and implemented a plan to remove jeopardy to an endangered species based on the conclusions of the biological opinion. kd The court determined that the biological opinion was inadequate as a matter of law. It The court further concluded that, because the plan implemented by the defendants to avoid jeopardy was based on an inadequate biological opinion, there was no assurance that the plan to avoid jeopardy would not harm the endangered species. Id. Defendants were therefore in violation of Section 7, and the court was compelled to enjoin the federal action. 1U " The Court notes that FEMA is correct in arguing that reasonable and prudent alternatives are limited to actions that can be taken by the federal agency. However, as the Court has already concluded, there is nothing to prevent FEMA from administering the NFIP program in a manner consistent with the requirements of the ESA. 17 Here, much like in Mineta, Defendants have failed to prepare an adequate biological opinion. See May 29, 2005 Order. FEMA has an affirmative obligation under Section 7(a)(2) to insure that agency action will not jeopardize the continued existence of the Listed Species or adversely modify their habitat. In the absence of an adequate biological opinion, FEMA is unable to meet this affirmative obligation with respect to its administration of the NFIP in the Florida Keys. As a result, the procedural requirements of the ESA have not been met and "an injunction pending compliance must be the remedy." lbomas,753 F.2d at 764. Defendants' violation of Section 7 thus compels the Court to enjoin FEMA from issuing flood insurance policies to new developments within the suitable habitat of the Listed Species until such time as an adequate biological opinion in completed, and sufficient RPAs in place. 2. Entering an injunction is not Contrary to Congressional Intent In 3YA, the Supreme Court held that "f t]he purposes of the [ESAj included the conservation of the species and of the ecosystems upon which they depend, and ;YM agency of government is committed to see that those purposes are carried out.... [T]he agencies of Government can no longer plead that they can do nothing about it. They can and they must, The law is_cleat." 523 U.S, at 184(citations omitted) (emphasis in original). Defendants contend that granting Plaintiffs' Motion would require FEMA to violate Congress' mandate that FEMA 'shall make flood insurance available ...." Def. Mem. at 11. Thus, according to Defendants, regardless of the Court's power to enjoin agency actions under the ESA, the Court is limited in this case by the language and intent of the NFIA. U Even assuming Defendants' interpretation of the NFIA is correct, the Court is not persuaded 18 that such an interpretation limits the Court's equitable powers. See Vim, 437 U.S. at 193-4. In L the Supreme Court addressed whether the construction of a darn could be completed when doing so would jeopardize the existence of the snail darter, an endangered species. 437 U.S. at 194. Defendants argued that the Court could not enjoin the construction of the dam because Congress had specifically authorized and funded the dam's construction. Id. The Supreme Court disagreed. While the Court did conclude that there was "an irreconcilable conflict between operation of the Tellico Dam and the explicit provisions of § 7 of the Endangered Species Act...", the Court concluded that the dam could not be completed because Congress had spoken in the clearest of words, giving "endangered species priority over the primary missions of federal agencies." B, at 185. Similarly, Defendants in this case contend that the Court cannot override the express intent of Congress that FEMA "shall issue flood insurance." Def. Mem. at 12. For the same reasons as the defendants in TVA were unsuccessful, Defendants' arguments here are equally unsuccessful. Congress has clearly stated that the protection of endangered species is to be given priority over the primary missions of federal agencies. Thus, it is not within the Court's discretion to conclude that FEMA's administration of the NFIP in Monroe County outweighs society's interest in the protection of endangered species. The Court notes that the injunction shall only remain in effect until the remand is complete and the Court determines that Defendants have complied with the May 29, 2005 Order, the ESA, and the APA. The Court further notes that FEMA is not required to implement a plan which prohibits the issuance of flood insurance to new developments 19 within the suitable habitat of the Listed Species. instead, Defendants are free to develop a conservation plan and reasonable and prudent alternatives in any manner they choose, so long as their actions are consistent with this Court's Orders, the ESA and the AFA. J}g Court o isMonroe outside the suitable habitat of the Listed SMjg&. -Aould FEMA reach a diffe,= conclusion. such a result would be the E own narrow inicaXagion of tht NEIA. and not because of this Court's Order, E. ESA Section 7(d) Section 7(d) provides that: after initiation of consultation required under subsection (a)(2) of this section, the Federal agency and the permit or license applicant shall not make any irreversible commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (ax2) of this section. 16 U.S.C. § 1536 (d). Section 7(d) was not part of the original ESA. Nat'l Wilderness Inst. v. Co, Ws of Engineers. Civ. No. 010272, 2005 WL 691775 (D.D.C. March 23, 2005). Rather, it was added after the Supreme Court's decision in TV& to prevent Federal agencies from steam rolling activities in order to secure completion of projects regardless of the impacts on endangered species. L�L According to Defendants, FEMA should be allowed to continue issuing new flood insurance policies within the suitable habitat of the Listed Species during the remand period because doing so would not violate ESA section 7(d). Defendants are wrong for two 20 reasons. First, Section 7(d) does not excuse federal agencies from meeting the requirements of Section 7(a)(2), r v Burford. 848 F.2d 1141, 1455 n. 34 (9th Cir. 1988)(finding that Section 7(d) does not amend Section 7(a)'s requirement of a comprehensive biological opinion). Second, even assuming that Section 7(d) provided the proper standard for an injunction, the current administration of the NFIP in the Florida Keys violates Section 7(d). As discussed in detail in the May 29, 2005 Order, habitat loss and fragmentation of the suitable habitat of the Listed Species continues under FEMA's current plan. Such destruction of suitable habitat may foreclose future options available to Defendants when issuing new RDAs. Therefore, the current administration of the NFIP in the Florida Keys violates Section 7(d) of the ESA. VII. CONCLUSION Since this case was filed more than fifteen years ago, Defendants have repeatedly failed to adhere to the requirements of the ESA. Defendants' own documents illustrate that an additional habitat modification or fragmcntation of the suitable habitat of the Listed Species further jeopardizes their existence. As a result, the failure to grant Plaintiffs' Motion would seriously diminish the Court's ability to provide Plaintiffs with meaningful and effective relief in this action. Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs' Motion for a Permanent Injunction (DE # ) is GRANTED. It is further ORDERED AND ADJUDGED and based thereon that: l) This Action is remanded to Defendants for consideration of the effects of the National Flood Insurance Program in Monroe County, Florida on the Listed Species. 2) Defendants shall submit a new biological opinion and their plan for compliance with 21 the March 29, 2005 Order, and the ESA and APA, within nine months of the date of this Order. ) The Court maintains jurisdiction until such time as Defendants demonstrate compliance with the March 29, 2005 Order. 4) The parties shall notify the Court upon completion of the remand and their intent to file additional memoranda. 5) FEMA is hereby enjoined from issuing flood insurance for new developments` ` in the suitable habitats of the Listed Species in Monroe County, Florida from the date of this Order until such time as the Court concludes that Defendants have complied with the March 20, 2005 Order, the ESA and the APA. h) Suitable habitats are defined as those parcels previously deemed by FWS as suitable habitat for the Listed Species for purposes of implementation of the 2003 RDAs. FWS shall submit the List of parcels in the suitable habitat to the Court within twenty (20) days of the date of this Order. 7) Plaintiffs shall submit their application for costs and attomey's fees within thirty (30) days of the of the conclusion of the appeal period. DONE AND ORDERED in Chambers at Miami, Florida, this ,day of September, 2005. UNITED STATES DISTRICT NDGE K. MICHAEL MOORE copies provided: All counsel of record (Defined as any residential or commercial development where construction of the structure has not yet begun as of the entry of this Order. 22 522 F.3d 1133 522 F.3d 1133, 66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 Fad 1133) United States Court of Appeals, Eleventh Circuit. FLORIDA KEY DEER (Odocoileus virginianus cla- vium), National Wildlife Federation, et al., Plaintiffs -Appellees, V. R. David PAULISON, in his official capacity as Act- ing Director of The Federal Emergency Management Agency, an Agency of the United States of America, P. Lynn Scarlett, in her official capacity as Secretary of the United States Department of the Interior, Defendants -Appellants. No. 05-16374. April 1, 2008. Background: Conservation groups brought action under Endangered Species Act (ESA) and Adminis- trative Procedure Act (APA) on behalf of eight en- dangered and threatened species seeking to compel Federal Emergency Management Agency (FEMA) to enter into ESA consultation with Fish and Wildlife Service (FWS) concerning FEMA's administration of National Flood Insurance Program (NFIP) in Florida Keys. After consultation, groups filed amended complaint challenging suffi- ciency of FWS's biological opinion (BO) and reason- able and prudent alternatives (RPA). In two separate opinions, the United States District Court for the Southern District of Florida, No. 90-10037-CV- KMM, K. Michael Moore, J., granted groups' motion for summary judgment, 364 F.Suvv.2d 13.45 and subsequently granted permanent injunctive relief, 36 F,Su .2d 1281, enjoining FEMA from providing any insurance for new developments in the suitable habitat of the listed species pending further consulta- tion and compliance. Appeal was taken. Holdings: The Court of Appeals, Barkett, Circuit Judge, held that: M FEMA had discretion in its administration of the NFIP, such that it was bound by ESA provision; FEMA's administration of NFIP was a relevant "cause" of development in the Florida Keys that threatened listed species; Page 1 FEMA was not required under the ESA to inde- pendently analyze FWS's proposed "reasonable and prudent alternatives" prior to adopting them; modified community rating system program adopted by FEMA failed to satisfy ESA provision imposing an obligation upon all agencies to carry out programs for the conservation of endangered and threatened species; and i5l injunction prohibiting FEMA from issuing flood insurance for new developments in suitable habitats of listed species was not inconsistent with the ESA or the National Flood Insurance Act. Affirmed. West Headnotes L11 Environmental Law �537 14 Ek537 Most Cited Cases Federal Emergency Management Agency {FEMA) had discretion in its administration of the National Flood Insurance Program (NFIP), such that it was bound by provision of Endangered Species Act (ESA) which required that agencies consult with the United states Fish and Wildlife Service (FWS) to determine the effects of their actions on endangered or threatened species and their critical habitat and that agencies insure that their actions not jeopardize endangered or threatened species or their critical hab- itat in situations in which there is discretionary feder- al involvement or control; Congress set out several purposes for FEMA to consider in FEMA's develop- ment of the criteria relevant to its assessment of whether a requesting locality had adequate land use and control measures in place, and, moreover, those purposes were broad and contemplated restriction of land development and consideration of whether a locality's land -use measures would "otherwise im- prove" land management and use. Endangered Spe- cies Act of 1973, § 7(a)(2), 16 U.S.C,A. 153 (a)t i; National Flood Insurance Act of 1968, §§ 1304, 1361(c), 42 U.S.C.A. §§ 4011, 10 c ; , Q. R. � 40103. Environmental Law �537 149Ek537 Most Cited Cases C0 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133,66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 Fad 1133) Federal Emergency Management Agency's (FEMA) administration of National Flood Insurance Program (NFIP) was a relevant "cause" of development in the Florida Keys that threatened listed species; by the terms of relevant provision of Endangered Species Act (ESA), FEMA had the authority in its administra- tion of the NFIP to prevent the indirect effects of its issuance of flood insurance by, for example, tailoring the eligibility criteria that it developed to prevent jeopardy to listed species. Endangered Species Act of 1973, § 7(a)(2), 16 U.S.C.A. § 1536ia)(2); National Flood Insurance Act of 1968, § 1304, 4011; 50 C.E Ra ' k 402.0 , 12 Environmental Law �537 l4.9Ek537 Most Cited Cases Provision of Endangered Species Act (ESA) which required that agencies consult with the United states Fish and Wildlife Service (FWS) to determine the effects of their actions on endangered or threatened species and their critical habitat and that agencies insure that their actions not jeopardize endangered or threatened species or their critical habitat in situations in which there is discretionary federal involvement or control did not require Federal Emergency Manage- ment Agency (FEMA) to independently analyze the FWS's proposed "reasonable and prudent alterna- tives" prior to adopting them. Endangered Species Act of 1973, § 7(a)(2), 16 U.S.C.A, § 1 36(a)(2). L41 Environmental Law �536 149Ek536 Most Cited Cases Modified community rating system program adopted by Federal Emergency Management Agency (FEMA) pursuant to the United states Fish and Wildlife Ser- vice's (FWS) recommendation to provide communi- ties with credits and reduced insurance rates for adopting a habitat conservation plan, and to provide additional credits and reduced rates for adopting an FWS-approved habitat conservation plan failed to satisfy provision of Endangered Species Act (ESA) imposing an obligation upon all agencies to carry out programs for the conservation of endangered and threatened species; although FEMA had offered in- centives for communities to develop conservation plans for approximately nine years, FEMA cited no record evidence that even a single community had developed or adopted such a plan in response. En- dangered Species Act of 1973, § 7(a)(1), 16 U.S.C.A, Page 2 1536ta)(1); National Flood Insurance Act of 1968, § 1304, 42 U.S.C.A. § 4011. Environmental Law C;;�536 149Ek536 Most Cited Cases While agencies may have discretion in selecting a particular program to conserve under Endangered Species Act's (ESA) requirement that federal agen- cies execute their programs in a manner consistent with conservation of endangered species, they must in fact carry out a program to conserve, and not an "insignificant" measure that does not, or is not rea- sonably likely to, conserve endangered or threatened species. Endangered Species Act of 1973, § 7(a)(1), 16 U.S.C..A. § 1536(a)(1). L61 Environmental Law �700 149E700 Most Cited Cases Where a federal agency fails to comply with the En- dangered Species Act (ESA), it is settled that a court may enjoin the agency from further noncompliant action pending satisfaction of the ESA's require- ments. Endangered Species Act of 1973, § 2 et seq., 16 U.S.C.A. § 1531 et secs. L71 Environmental Law �700 149k700 Most Cited Cases L71 Injunction �75 21205 Most Cited Cases Injunction prohibiting Federal Emergency Manage- ment Agency (FEMA) from issuing flood insurance for new developments in suitable habitats of listed species was not inconsistent with the Endangered Species Act (ESA) or the National Flood insurance Act; FEMA could, consistently with the injunction and its discretion to consider the ESA in its develop- ment of eligibility criteria, withdraw county's eligibil- ity for flood insurance pending required consultation with the United states Fish and Wildlife Service (FWS) and development of new and satisfactory eli- gibility criteria. National Flood Insurance Act of 1968, §§ 1302(d f), 1304, 42 .S.C.A. 4001(d-0, 4011. *1135 Robert J. Lundman U.S Dept of Justice, ENR, Washington, DC, for Defendants -Appellants. *1136 Mary Randolph Sargent, John F. Koslya2k, 0 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133,66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 F.3d 1133) Nat. Wildlife Fed., Washington, DC, for Plaintiffs - Appellees. Thomas C. Jackson, Baker Botts, LLP, Washington, DC, for Amicus Curiae, Nat. Ass'n of Home Build- ers. Tanwa McNiemey Scrudders, Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, Ft. Lauderdale, FL, for Amicus Curiae, Monroe Cty., FL. Valerie Fe are ez, Pac. Legal Found., Stuart, FL, for Amicus Curiae, Pac. Legal Found. Janies B. DgRgherty, Law Office of J.B. Dougherty, Washington, DC, for Amicus Curiae, Taxpayers for Common Sense. Appeal from the United States District Court for the Southern District of Florida. Before ANDERSON and BARKETT, Circuit Judg- es, and TRAGER, 1M District Judge. Honorable David G. Trager, United States District Judge for the Eastern District of New York, sitting by designation. Circuit Judge: The Federal Emergency Management Agency ("FEMA') and the U.S. Fish and Wildlife Service ("FWS") appeal from an adverse summary judgment and grant of injunctive relief. The district court found that FEMA and the FWS failed to comply with sec- tion 7 of the Endangered Species Act, with regard to FEMA's administration of the National Flood Insur- ance Program in the Florida Keys. ffitill FEMA and the FWS maintain that section 7(a)(2) of the Endan- gered Species Act does not apply to FEMA's provi- sion of flood insurance and that FEMA has, in any event, fully complied with section 7. We affirm. _FN I. The plaintiffs -appellees in this case are three environmental organizations and eight endangered or threatened species. The or- ganizations are the National Wildlife Feder- ation, the Florida Wildlife Federation, and Page 3 the Defenders of Wildlife. The endangered or threatened species are the Florida Key deer, the Key Largo cotton mouse, the Key Largo woodrat, the Key tree -cactus, the Lower Keys marsh rabbit, the Schaus' swal- lowtail butterfly, the silver rice rat, and the Stock Island tree snail. The defendants -appellants are R. David Paulison and P. Lynn Scarlett in their re- spective official capacities as the acting head of FEMA and the Secretary of the U.S. De- partment of the Interior, of which the FWS is a part. Pursuant to Federal gale of A el- late Procedure 431c(2}, Scarlett has been automatically substituted as a party and in the caption for the former acting Secretary. For ease, we refer to the defendants as FE- MA and the FWS. Amici Curiae the Pacific Legal Foundation, Monroe County, and the National Associa- tion of Home Builders filed briefs in support of the appellants. Amicus Curiae Taxpayers for Common Sense filed a brief in support of the appellees. I. STATUTORY FRAMEWORK To resolve the questions before us, we must first address the interaction between two congressional mandates. the National Flood insurance Act of 1968, 42 Q.S,C. ° 001-412 , and the Endangered Species Act of 1973,16 U.S.C. 66 15 1-1544. A. The National Flood Insurance Act Congress passed the National Flood Insurance Act of 1968 ("NFIA") to provide affordable flood insurance throughout the nation and to encourage sensible land use that would minimize the exposure of property to flood damage and loss. 42 US.Q. 4001Q- ; F°lick v. Liberty Mast. fire Ins. Co., 05 F°.3d 86. 88 1 th Cir.2000 . Toward that end, the NFIA authorizes FEMA to establish and carry out the National Flood Insurance Program ("NFIP"). 211.5_C. ` 4011. Before insurance is provided within a community, however, the NFIA requires that the community sat- isfy certain eligibility *1137 criteria. Specifically, FEMA is required to issue flood insurance only once it has determined that a community has: (1) evidenced a positive interest in securing flood ® 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133,66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 Fad 1133) insurance coverage under the flood insurance pro- gram, and (2) given satisfactory assurance that by December 31, 1971, adequate land use and control measures will have been adopted for the State or area (or subdivision) which are consistent with the compre- hensive criteria for land management and use de- veloped under section 4102 of this title, and that the application and enforcement of such measures will commence as soon as technical information on floodways and on controlling flood elevations is available. Id. § 4012 (emphasis added). The statute also estab- lishes that "[a]fter December 31, 1971, no new flood insurance coverage shall be provided under this chap- ter in any area (or subdivision thereof) unless an ap- propriate public body shall have adopted adequate land use and control measures (with effective en- forcement provisions) which [FEMA] finds are con- sistent with the comprehensive criteria for land man- agement and use under section 4102 of this title." Id. § 4022(a). Thus, FEMA is required to make flood insurance available in only those areas that have: (1) evidenced interest in securing flood insurance through the NFIP, and (2) adopted adequate land use and control measures that are consistent with the comprehensive criteria for land management and use developed by FEMA pursuant to 42 U.S.C. J 4102. Id. §§ 4012(c), 4022(a). In order to ascertain whether a locality inter- ested in participating in the NFIF has adopted ade- quate land use and control measures, FEMA is au- thorized to conduct studies, bLA 4102a,4, and, on the basis of those studies and other relevant information, to develop the "comprehensive criteria" referenced above. Those criteria must be designed to encourage, where necessary, the adoption of state and local measures that will: (1) constrict the development of land which is ex- posed to flood damage where appropriate, (2) guide the development of proposed construc- tion away from locations which are threatened by flood hazards, (3) assist in reducing damage caused by floods, and (4) otherwise improve the long-range land man- agement and use of flood -prone areas. Id. § 4102(c). The criteria now in effect are set forth in FEMA's regulations at 4 C.F.R. ` 60.1-_,26. The Page 4 criteria relevant here are discussed below. In addition to guiding FEMA's issuance of flood insurance, the NFIA requires FEMA to implement a "community rating system program" that provides discounts on flood insurance premiums in communi- ties that establish additional floodplain management regulations that exceed the minimum criteria set forth in FEMA's eligibility criteria. _U3 ,C 402 b.' . Congress established the community rating system to serve four purposes: (A) to provide incentives for measures that reduce the risk of flood or erosion damage that exceed the criteria set fortis in section 4102 of this title and evaluate such measures; (B) to encourage adoption of more effective measures that protect natural and beneficial flood - plain functions; (C) to encourage floodplain and erosion manage- ment; and (D) to promote the reduction of Federal flood in- surance losses. Id. § 4022(b)(1). B. The Endangered Species Act The Endangered Species Act of 1973 {"ESA") is "the most comprehensive legislation *1138 for the preser- vation of endangered species ever enacted by any nation." Tenn. Vallev Ruth. v. Hill.o 437 U.S. 153. 1 0. 98 S.CL 2279, 57 LE&2d 117 (1978). Its stated purposes were "to provide a means whereby the eco- systems upon which endangered species and threat- ened species depend may be conserved' and "to pro- vide a program for the conservation of such endan- gered species and threatened species." 16 U.S.C� 1531 b . "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Penn. Fall cat. 437 U.S. at 134, 911 S.Ct. 2279. In short, the preservation of endangered species was to be consid- ered "the highest of priorities." Id. at 194. 9 S.Ct. 2279. At the most basic level, this goal translated into the ESA's requirement that the Secretaries of Com- merce and the Interior maintain a list of endangered and threatened species ("listed species") and desig- nate their critical habitats. 1 U.S.C,_ 1533. The FWS administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior, and the National Marine Fisheries Service, not rele- C 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133, 66 ERC 1225, 21 Fla. L. Weekly Fed. C 515 (Cite as: 522 F.3d 1133) vant here, administers the ESA with respect to those under the jurisdiction of the Secretary of Commerce. L12i2i See Nat'l Assn ofl ome Builders_v._ e en ers of Wildlife, 551 U.S. ____ 127 .C:t._ _ 15,_ 152 „--168 Lid.2d 467 (2007); 50 CI _,_ _17._1.1, 2 2.1 1(a), 223.10, FN2. It is the FWS's administration of the ESA that is at issue in this case. At the heart of this dispute, and of Congress's plan to preserve endangered and threatened species, is sec- tion 7 of the ESA, which places affirmative obliga- tions upon federal agencies. Section 7(a)(1) provides that all federal agencies "shall, in consultation with and with the assistance of the Secretary [of Com- merce or the Interior], utilize their authorities in fur- therance of the purposes of this chapter by carrying out programs for the conservation of endangered spe- cies and threatened species." 16 U.S.C. § 1536(a)(1). The mandate of section 7(a)(2) is even clearer: Each Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency ... is not like- ly to jeopardize the continued existence of any en- dangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined ... to be criti- cal, unless such agency has been granted an ex- emption for such action ... pursuant to subsection (h) of this section. Id. § 1536(a)(2). Thus, section 7(a)(2) imposes two obligations upon federal agencies. The first is proce- dural and requires that agencies consult with the FWS to determine the effects of their actions on en- dangered or threatened species and their critical habi- tat. Id. § 1536(b). The second is substantive and re- quires that agencies insure that their actions not jeop- ardize endangered or threatened species or their criti- cal habitat Id. § 1536(a)(2). Regulations implementing the procedural consulta- tion requirement provide for an optional, informal consultation between the acting agency and the FWS prior to a determination that formal consultation is required. 50 C. .R. § 402.0 , .13. Formal consulta- tion "is a process between the [FWS] and the Federal Page 5 agency that commences with the Federal agency's written request for consultation under section 7(a)(2) of the Act." Icl. 402.02. It is required if an acting agency determines that any action it takes "may af- fect listed species or critical habitat." Id *1139 § 402.14(a). Following formal consultation, the FWS is required to issue the acting agency "a written state- ment setting forth the [FWS's] opinion, and a sum- mary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat" 16 UaS.C. 50 C.F.R 4 (referring to the FWS's written statement as its "Biological opinion"). If the FWS finds "jeopardy or adverse modification" to a listed species or its critical habitat, "the [FWS] shall suggest those reasonable and prudent alterna- tives which [it] believes would not violate subsection (a)(2)." 16 U.S.C. 6 1536(b)(3)(A). In response to an opinion finding "jeopardy or adverse modification," the acting agency must comply with the substantive mandate of section 7(a)(2) and either "terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet -level Endangered Species Committee pursuant to 16 U.S.C. ` 1536 e J. Nail Ass?me Builders, 127 S.Ct. at 2526. Before discussing the interplay of the NFIA. and the ESA in this case, we summarize the relevant facts of this lengthy proceeding. 11. BACKGROUND OF THIS CASE In 1984, the FWS determined that FEMA's admin- istration of the NFIP in the Florida Keys potentially jeopardized the existence of the Florida Key deer by effectively authorizing the development that pushed the Key deer to the brink of extinction. In 1989, how- ever, FEMA refused the FWS's request for formal consultation, asserting that the ESA did not apply to the NFIP. In 1990, the plaintiffs, which we hereafter collective- ly refer to as the "Wildlife Organizations," filed this suit seeking an injunction requiring FEMA to comply with section 7(a)(2) of the ESA by formally consult- ing with the FWS about the impact of its administra- tion of the NFIP on the Key deer. The Wildlife Or- ganizations adopted the FWS's argument that the NFIP encouraged new development that threatened ® 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133,66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 Fad 1133) the meager population of 250-300 Key deer with ex- tinction. Fla. Key Deer v. Stickna LEIar.Deer h. 864 F.Sppp. 1222g 1230-31_ (S. .F1a.1994). After a bench trial, the district court agreed and entered a Memorandum Opinion and Final Declaratory Judg- ment in the Wildlife Organizations' favor, requiring FEMA to consult with the FWS. I. at 1240- 42. The court retained jurisdiction over the case to enforce the injunctive relief granted. Id. at 1242. FEMA did not appeal that ruling. In compliance with this 1994 ruling, FEMA consult- ed with the FWS regarding the impact of the NFIP on the Key deer and nine other endangered or threatened species. In 1997, the FWS issued its opinion, which found, among other things, that the NFIP, as adminis- tered in the Florida Keys, jeopardized the continued existence of the Key deer and eight other listed spe- cies. In accordance with its regulations and the ESA, the FWS recommended "reasonable and prudent al- ternatives" ("1997 RPAs") to the manner in which FEMA administered the NFIP to avoid placing the Key deer and other listed species in jeopardy. The 1997 RPAs provided for review by the FWS of new development within the suitable habitat of the listed species. In compliance, Monroe County conditioned the grant of building permits to landowners on the completion of FWS review. During that review, the FWS was to determine whether the proposed project "may" or "would not' adversely affect endangered or threatened species or designated critical habitat. De- pending upon the answer, the FWS would take ap- propriate action to ensure compliance with the ESA. In the 1997 RPAs, the FWS also recommended that FEMA evaluate Monroe County's compliance with *1140 the consultation procedure, notify the County of violations, and treat violations as substantive defi- ciencies pursuant to 44 C.F.R. § 60. -.5. The Coun ty's failure to correct the deficiencies would result in probation or suspension of its participation in the NFIP. Finally, the 1997 RPAs also included "conservation recommendations" under section 7(a)(1) of the ESA. Specifically, the FWS recommended that FEMA pro- vide incentives in the form of reduced insurance premiums for completion of a comprehensive, coun- ty -wide habitat conservation plan. FEMA adopted the 1997 RDAs and conservation recommendations in Page 6 1997. In 1998, the Wildlife Organizations filed an amend- ed complaint in the original lawsuit, adding the FWS as a defendant and challenging the adequacy of the 1997 RPAs and the accompanying conservation rec- ommendations under the ESA and the Administrative Procedure Act. 'The Wildlife Organizations claimed that the 1997 RPAs failed to "insure that [the NFIP would not] jeopardize the continued existence of any endangered species or threatened species" or their critical habitat pursuant to 16 Up.C. ' 1536(a (2); that FEMA was not adhering to the FWS review sug- gested in the 1997 RPAs; and that the conservation program adopted by FEMA did not satisfy section 7(a)(1). Before the district court ruled on cross -motions for summary judgment, FEMA and the FWS reinitiated consultation. The new consultation apparently arose from a provision of the 1997 RPAs that required a second consultation if Monroe County failed to com- plete a habitat conservation plan within four years, which in fact the County failed to do. In 2003, the FWS issued a second opinion assessing the threat that FEMA's administration of the NFIP posed to the listed species in the Florida Keys. It concluded that the NFIP jeopardized eight of the ten species consid- ered in 1997, but that the 1997 RDAs adequately pro- tected the listed species. Accordingly, it simply reit- erated its recommendation that FEMA continue to implement the same "reasonable and prudent alterna- tives" ("2003 RPAs") suggested in 1997 and the same conservation recommendations made in 1997 pursu- ant to section 7(a)(1), even though the challenges to the 1997 RPAs contained in the first amended com- plaint had not been resolved. The Wildlife Orgamza- tions correspondingly amended their complaint in order to challenge the 2003 RPAs, the conservation recommendations, and FEMA's decision to adopt them. On March 29, 2005, the district court granted the Wildlife Organizations' motion for summary judg- ment, finding that FEMA had not satisfied its obhga- tion under section 7(a)(1) to carry out programs to conserve species and that neither FEMA nor the FWS had satisfied their obligations under section 7(a)(2). Fla. Key Deer v._Brown Ica. Key Deer LI), 364 C 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133,66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 IF3d 1133) F. Mpg.2d 1345 1 2-61 (S, .F1a.2005). On Sep- tember 12, 2005, the district court enjoined FEMA from providing any insurance for new developments in the suitable habitat of the listed species in Monroe County pending further consultation and compliance with its order of March 29, 2005. Fla. Ke y Deer v. Brown fFla. Key Deer II 86 F.Suoo.2d 1281. 1294 (S.D.Fla.2005}. FN3 FN3. After the briefing in this appeal was submitted, FEMA and the FWS concluded the third consultation as ordered by the dis- trict court. The FWS issued its third opinion on the effects of the NFIP on endangered or threatened species in the Florida Keys on August 8, 2006, along with proposed "rea- sonable and prudent alternatives" ("2006 RPAs"). FEMA adopted the 2006 RPAs on the very same date of their issuance. The re- sults of this most recent consultation are not relevant to this appeal. *1141 M. DISCUSSION FEMA and the FWS challenge the district court's grant of summary judgment and injunctive relief, arguing that: (1) section 7(a)(2) of the ESA does not apply to FEMA's administration of the NFIP; (2) section 7(a)(2) of the ESA does not require FEMA to perform an independent analysis of the FWS's proposed "reasonable and prudent alterna- tives" before adopting them; (3) section 7(a)(1) of the ESA does not require agencies to develop species -and location -specific programs for the conservation of listed species; and (4) the district court exceeded its authority by issu- ing an injunction that is allegedly inconsistent with the ESA and the NFIA. We address each argument in turn. 4 4. With the exception of their challenge to the district court's finding that FEMA must perform an independent analysis of proposed "reasonable and prudent alterna- tives," FEMA and the FWS do not appeal from the district court's determination that their actions with respect to the 2003 RPAs and biological opinion were arbitrary and capricious. Page 7 A. Whether section 7(a)(2) of the ESA applies to FEMA Is administration of the NFIP U1 A regulation promulgated jointly by the Secretar- ies of Commerce and the Interior provides that sec- tion 7 applies "to all actions in which there is discre- tionary Federal involvement or control." 50 402.0. During the pendency of this appeal, the Su- preme Court had the opportunity to rule upon the validity of that regulation. It upheld the regulation as reasonable and affirmed that section 7(a)(2) "covers only discretionary agency actions and does not attach to actions ... that an agency is required by statute to undertake once certain specified triggering events have occurred." Nat'l AssP of Home Pail ers, 127 .Ct. at 2536. Therefore, the primary issue for us to consider regarding section 7(a)(2) of the ESA is whether FEMA has any discretion in its administra- tion of the NFIP such that it is bound by the require- ments of section 7(a)(2). FEMA and the FWS argue that this case is similar to National Association o Home Builders and that FEMA does not have the required discretion under the NFIA. We disagree. The Supreme Court defined the requisite discretion for section 7(a)(2) of the ESA as the discretion "to consider the protection of threatened or endangered species as an end in itself." Id. at 2537. This does not, as the parties conceded at oral argument, require the statute at issue to use environmental terminology for agency discretion to be found: there is no environ- mental -words test. See, e.g., In re Operation of Mo. Rivers. Iitif., 421 F.3d 618_f8ti Cir.20051 (find- ing sufficient agency discretion in administration of the Flood Control Act of 1994, which required the consideration of flood control and navigation, primar- ily, in agency's construction of a dam and reservoir system). Accordingly, we ask whether FEMA has discretion in administering the NFIP to consider the protection of endangered or threatened species as an end. In operating the NFIP, FEMA is required to make flood insurance available in those areas with adequate land use and control measures, as judged by compre- hensive eligibility criteria developed by FEMA. 42 U3.C. § 4012(c). FEMA develops the eligibility cri- teria pursuant to the authority conferred by 42 U.S.C. 0 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133,66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 Fad 1133) 102 c .That provision requires FEMA to consider "studies and investigations, and such other infor- mation as [it] deems necessary" to "develop compre- hensive criteria designed to encourage, where neces- sary, *1142 the adoption of adequate State and local measures which, to the maximum extent feasible, will," in addition to reducing the development of flood -prone land, "otherwise improve the long-range land management and use of flood -prone areas." Id. (emphasis added). This statutory scheme bears little resemblance to the scheme in National Association of Home udders where no discretion was found. In National Association of Home _ uhl ers; the Su- preme Court considered the interplay between the seemingly conflicting mandates of the Clean Water Act ("CWA') and the ESA. The CWA established the National Pollution Discharge Elimination System ("NPDES"), which is "designed to prevent harmful discharges into the Nation's waters." iYat'1 Assn of Home Builders, 127 S.Ct. at 2525. Although the En- vironmental Protection Agency ("EPA") initially ad- ministers the NPDES permitting system for each state, it must transfer that permitting authority to a state upon application and satisfaction of nine statuto- ry criteria. (r Those criteria test the authority under state law of the would-be administering agency to carry out the NPDES program. Id, at 2525 & n. 2. The respondents before the Court argued that the EPA has discretion to consider listed species in mak- ing an NPDES transfer decision. Id. a2537. The Court rejected the argument, stating that "[n]othing in the text of [the CWA's operative provision] authoriz- es the EPA to consider the protection of threatened or endangered species as an end in itself when evaluat- ing a transfer application." 14., Additionally, the Court noted that "to the extent that some of the [CWA] cri- teria may result in environmental benefits to marine species, there is no dispute that [the state at issue] has satisfied each of those statutory criteria." I., In other words, although the CWA "requires the EPA to con- sider whether [a state] has the legal authority to en- force applicable water quality standards, ... the permit transfer process does not itself require scrutiny of the underlying standards or of their effect on marine or wildlife." Id. at 2537 n. 10. Here, by contrast, Congress set out several purposes for FEMA to consider in FEMA's development of Page 8 the criteria relevant to its assessment of whether a requesting locality has adequate land use and control measures in place. 42 Q.S.C. _` 4102(c). Moreover, those purposes are broad and contemplate restriction of land development and consideration of whether a locality's land -use measures will "otherwise improve" land management and use. Therefore, although FE- MA is required to issue flood insurance to localities that satisfy certain criteria, FEMA itself is charged with developing those criteria and enjoys broad dis- cretion in so doing. See Nat° li e a 'n v. 345 F.Suijm2d115 -74 (W.D.Wa p4} (finding that FEMA has discre- tion in its development of the eligibility criteria). FEMA also enjoys broad discretion in its implemen- tation of the community rating system program pur- suant to 42U.S.C. § 022(b}. See id. at 1174 (finding that FEMA has discretion in designing the communi- ty rating system program). Congress directed FEMA to design the program and, in its discretion, to reward localities with discounted insurance premiums for the adoption of floodplain management regulations that exceed the minimum criteria discussed above. 43 Li &C..' 4022(b}. Among the purposes Congress directed FEMA to consider in designing the program is the protection of "natural and beneficial floodplain functions." Id. ' 40 (i(1)(B). We find that the lan- guage of 42 U.S.C. § 4022(b}(1} provides ample dis- cretion for FEMA to consider listed species. Based upon our review of the NFIA's scheme for the development of eligibility *1143 criteria and of the purposes served by the community rating system program, we are satisfied that FEMA has discretion to consider endangered and threatened species in its administration of the NFIP. Indeed, this finding is consistent with FEMA's own regulations implement- ing the NFIP, wherein wildlife and environmental concerns are considered. See 44 C.F.R. § 60.5(b)( ) (imposing the condition that certain communities "[r]equire a setback for all new development from the ocean, lake, bay, riverfront or other body of water, ... designated by the Administrator according to the flood -related erosion hazard and erosion rate, ... and depending upon the geologic, hydrologic, topograph- ic and climatic characteristics of the community's land," and explaining that "[t]he buffer may be used for... wildlife habitat areas"); id. § 60.6(b)(1) (requir- ® 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133,66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 F.3d 1133) ing that communities seeking an exception from the obligation to adopt adequate flood plain regulations "shall explain in writing to [FEMA] the nature and extent of and the reasons for the exception request and shall include sufficient supporting economic, environmental, topographic, hydrologic, and other scientific and technical data, and data with respect to the impact on public safety and the environment"); id. § 60.22(c)(2) (requiring that communities, in adopt- ing floodplain regulations, consider "[d]iversion of development to areas safe from flooding ... in light of the need to prevent environmentally incompatible flood plain use"); id. § 60.25(b)(9) (requiring that participating States maintain the ability to "[essaablish minimum State flood plain management regulatory standards consistent ... with other Federal and State environmental and water pollution standards for the prevention of pollution during periods of flooding"). FEMA and the FWS alternatively argue that even if FEMA has the requisite discretion to consider the effects of its administration of the NFIP on listed species, the issuance of flood insurance is not a legal- ly relevant "cause" of the development in the Florida Keys that threatens the listed species. We are not persuaded. By its terms, section 7(a)(2) of the ESA applies to "any action authorized, funded, or carried out by" the agency at issue. 16U.S.C. § 1536(a)(2�; see also 50 C.F., § 402.02 (providing examples of agency "ac- tion"). The applicable regulations direct agencies, in considering whether formal consultation is required, "to determine whether any action may affect listed species or critical habitat." 50 C.F.,_ _40 .14(g). A later portion of the same regulation confirms that agencies must consider the "effects of the action as a whole." Id. § 402.14(c). The "[e]ffects of the action" include the "direct and indirect effects of an action on the species or critical habitat," and "[inndirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur." Id. ` 402.02. This statutory and regulatory framework for deter- mining when an agency action requires section 7(a)(2) consultation is materially indistinguishable from the framework of the National Environmental Policy Act ("NEPA") considered by the Supreme Page 9 Court in Department of lhaq�ion v._Public _Cit- izen. 541 U.S. 752, 124 S.Ct. 2ZO4x 1 9.LEd.2d 60 20 . The issue in Public Citizen was whether NEPA and the Clean Air Act required the Federal Motor Carrier Safety Administration ("FMCSA') to evaluate "the environmental effects of cross -bonier operations of Mexican -domiciled motor carriers." lam. at 756. 124 S.Ct. 220. The FMCSA was charged with promulgating safety and financial regulations for motor carriers and with granting registrations to motor carriers willing and able to comply with those regulations. Id. at 758-59, 24 S.Ct. 2204. It had "no statutory authority to impose or -1144 enforce emis- sions controls or to establish environmental require- ments unrelated to motor carrier safety." Ido at 75, 124 S.Ct. 2204. After reviewing NEPA's framework, the Court determined that the environmental effects of cross -bonier operations could not be considered effects of the FMCSA's issuance of regulations and registrations because the FMCSA "simply lacks the power to act" on the environmental consequences of what Congress required it to do. Id. at 76m 124 .Ct.. 24. The Court summarized its holding: "where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant 'cause' of the effect." Id, at 770. 124 &Ct- 2204. Although the statutory frameworks considered here and in Public Cagen are quite similar, the facts of the cases are not. Here, FEMA has the authority in its administration of the NFIP, as discussed above, to prevent the indirect effects of its issuance of flood insurance by, for example, tailoring the eligibility criteria that it develops to prevent jeopardy to listed species. Therefore, its administration of the NFIP is a relevant cause of jeopardy to the listed species. This is confirmed by the FWS's own interpretation that section 7 applies to the NFIP and its findings made during formal consultation with FEMA that the NFIP jeopardizes listed species because development is encouraged and in effect authorized by FEMA's issu- ance of flood insurance. See ,Fla. KeaDeer I.864 F.Supa. at 1232 1236. Public Citizen does not man- date a different result because it stands for nothing more than the intuitive proposition that an agency cannot be held accountable for the effects of actions it has no discretion not to take. Critical to the result in ® 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133, 66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 F.3d 1133) Public Citizen was the fact that the FMCSA had "no ability to countermand the President's lifting of the moratorium [on qualified Mexican motor carriers] or otherwise categorically to exclude Mexican motor carriers from operating within the United States." 541, J.S. as 766. 124 S,Ct. 2204. Having determined that section 7(a)(2) applies to FEM.Xs administration of the NFIP, we discuss whether the ESA requires FEMA to independently analyze the FWS's proposed "reasonable and prudent alternatives" prior to adopting them. B. Whether section 7(a)(2) of the ESA requires FE- MA to independently analyze the FWS's proposed "reasonable and prudent alter- natives" JJ In addition to finding that the FWS's 2003 RPAs were arbitrary and capricious, the district court held that "FEMNs admitted failure to engage in any inde- pendent consideration of the sufficiency of the 2003 RPAs renders its actions arbitrary and capricious." Flats Key weer II 364 F.Suoo.2 at 135. That is, the district court found that agencies cannot rely exclu- sively on the FWS's post -consultation recommenda- tions without conducting any independent analysis of their sufficiency. For this proposition, the court relied upon 11yrcamid bake Paiute Tribe of dians° v._ US, a:p tmena ., of thq Navv wherein the Ninth Circuit stated that [a] federal agency cannot abrogate its responsibility to ensure that its actions will not jeop- ardize a listed species; its decision to rely on a[n] FWS biological opinion must not have been arbitrary or capricious." 898 FId 1 1 1 15 9th Cir.1 0 . The Ninth Circuit qualified its statement, however, stating that "another agency's reliance on that opinion will satisfy its obligations under the [ESA] if a chal- lenging party can point to no 'new' information--i.e., information the [FWS] did not take into account -- which challenges the opinion's conclusions." I. *1145 We agree with the Ninth Circuit and do not share the concern of the Wildlife Organizations that an agency will be able to avoid substantive review of its adopted "reasonable and prudent alternatives„ merely by pointing to its reliance on the FWS's opin- ion. if the FWS's proposed "reasonable and prudent alternatives" are arbitrary and capricious, an agency's decision to adopt them is likewise arbitrary and ca- Page 10 pricious and may be challenged. FEMA need not, therefore, conduct any independent analysis of the proposed alternatives; however, as the Ninth Cir- cuit notes, where new information arises between the proposal and the adoption, and an acting agency would otherwise be required to consider that infor- mation prior to acting, the decision to adopt is partic- ularly susceptible to challenge absent consideration of the new evidence.., Perhaps in acknowledgment of this possibility, FEMA adopted the 2006 RPAs the same day that the FWS proposed them EN6 F°N5. FEMA and the FWS appear to concede as much in their briefing and at oral argu- ment. 6. FEMA adopted the 2006 RPAs during the pendency of this appeal, and the Wildlife Organizations have not, as of yet, challenged their sufficiency. C. Whether section 7(a)(1) of the ESA requires agencies to develop species- and location -specific conservation pro- grams Section 7(a)(1) of the ESA imposes a separate obligation upon federal agencies and, in relevant part, states that all federal agencies "shall," in consultation with the FWS or National Marine Fisheries Service, "utilize their authorities in furtherance of the purpos- es of this chapter by carrying out programs for the conservation of [listed species]." 16 15 i6( 1 . The ESA defines "conservation" as "the use of all methods and procedures which are neces- sary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." Id. § 1532(3). In an attempt to comply with section 7(a)(1), FEMA modified its community rating system program in 1999 pursuant to the FWS's recommenda- tion to provide communities with credits and reduced insurance rates for adopting a habitat conservation plan, and to provide additional credits and reduced rates for adopting an FWS-approved habitat conser- vation plan. The program is nationally available, but Monroe County is currently not eligible because it has not complied with the programs requirements. JEN71 The record establishes that some communities that adopted conservation plans prior to FEMA's im- C 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133, 66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 F.3d 1133) plementation of the modified community rating sys- tem program applied for credit for those plans but is silent as to whether the communities actually re- ceived credit. Additionally, no evidence cited indi- cates that any community in the nation has, since the inception of the program, applied for or received credit for a habitat conservation plan. 7. The Wildlife Organizations note that FEMA also appointed a staff member to at- tend inter -agency meetings concerning a multi -species recovery program in southern Florida but that the program has taken no conservation action. On appeal, FEMA de- fends its compliance with section 7(a)(1) en- tirely on the basis of the modified communi- ty rating system program. We therefore do not consider the apparently unrelated staff - member appointment in our discussion of section 7(a)(1). After determining that section 7(a)(1) imposes a "specific, rather than a generalized duty to conserve species; the district court held that FEMA failed to fulfill its obligations under the provision because FEMA had implemented only a voluntary program with no effect on the specific species affected by its actions. f la. Key Deer is 364 F. .2d at 1361. It determined*1146 that FEMA's reading of section 7(a)(1) was inconsistent with its plain meaning and intent. Id, On appeal, FEMA and the FWS argue that section 7(a)(1) does not require species- or location - specific programs and that it confers significant dis- cretion upon acting agencies in their selection of con- servation programs. The question here, then, is whether the modified community rating system pro- gram adopted by FEMA satisfies its obligation under section 7(a)(1). A number of courts addressing section 7(a)(1) have stated that it imposes only a general requirement, the specifics of which are subject to the discretionary authority of each federal agency. See Eyramid Lake, 898 F.2d at 141 ("We have recognized that the Sec- retary is to be afforded some discretion in ascertain- ing how best to fulfill the mandate to conserve under section 7(a)(1)."); Defenders of ffiLldfife v. babbitt. 130 F.Su2p.2d 121. 135 QD.Q.20011(agencies have discretion in choosing how to comply with section Page 11 7(a)(1)); Nw. Envtl. Advocates v. US. Envil. Prot. Ajeencv,268 F.Suom.2d_ _1255, 1273 iO.Or.2003i ("The statute does not mention species -specific pro- grams. Rather, the agency may reasonably interpret its § 7(a)(1) obligations to extend no farther than engaging in conservation programs that benefit threatened species. The court gives an agency sub- stantial deference in interpreting its own statute."); see also DeLenders of Eddli(e v. See° , U..S. e `t o ' the Interior354 F.Supp1d. 1156, 1174 .Or.2005) ("An agency has a specific, not generalized, duty to conserve species. Section 7(a)(1) provides a manda- tory duty to conserve, but the statute does not require particular conservation action.") (citation omitted). The Fifth Circuit, however, has held that section 7(a)(1) imposes a specific obligation upon all federal agencies to carry out programs to conserve each en- dangered and threatened species. Sierra Club v. Glickman, 156 F.3d 606, 616 ("Given the plain language of the statute and its legislative history, we conclude that Congress intended to im- pose an affirmative duty on each federal agency to conserve each of the species listed pursuant to [fit' U.S.C. 133. In order to achieve this objective, the agencies must consult with [the] FWS as to each of the listed species, not just undertake a generalized consultation."). In this case, we need not address the scope of discre- tion afforded agencies under section 7(a)(1) or whether section 7(a)(1) imposes species- or location - specific obligations. Even assuming that FEMA has the discretion it claims, section 7(a)(1) imposes a judicially reviewable obligation upon all agencies to carry out programs for the conservation of endan- gered and threatened species. See 16 __U. .C. 1536 a 1 ("All other Federal agencies shall ... uti- lize their authorities ... by carrying out programs for the conservation of endangered species and threat- ened species ....") (emphasis added); [ltc aaa. 15 F.3d at 616. Total inaction is not allowed. See, e.g., Glickman 156 F.3d at 617-1 l�iat7 Tf'tlA e .F`ed'n. 332 Mop. d at 187 (section 7(a)(1) confers discre- tion, but that "discretion is not so broad as to excuse total inaction"); eL —nd—ero tl li e. 35 F.Suc�ts.2d t 117 ("compliance is not committed to agency discretion by law"). 0 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133, 66 ERC 1225, 21 Fla. L. Weekly Fed. C 515 (Cite as: 522 Fad 1133) The Ninth Circuit has given substance to the baseline requirement of section 7(a)(1) that federal agencies actually carry out conservation programs. In Pyramid Lake, a case relied upon heavily by FEMA and the FWS, the plaintiff argued that section 7(a)(1) re- quired the U.S. Department of the Navy to adopt the plaintiffs suggested conservation recommendation, which was the "least burdensome alternative" *1147 to the actual program implemented by the Navy. 8,98 F.2d at 117, Writing for a panel of the Ninth Circuit, Judge O'Scannlain declined to require as much, in part because of the discretion afforded agencies in determining how to fulfill their obligations under section 7(a)(1). Id. at 141. The court fiuther noted that, even were it to adopt the plaintiffs stringent interpretation of section 7(a)(1), the court would de- fer to the district court's finding of fact that the plain- tiffs proposed alternative program "would have an insignificant effect." Id. at 1418 n. 19. In Judge O'Scannlain's view, "[a]n 'insignificant' conservation measure in the context of [the] ESA is oxymoronic; if the proposed measure will be insignificant in its im- pact, how can it serve the ends of conservation, and thus be a'conservation measure'?" Id. at 1418. We agree with the standard articulated by Judge O'Scannlain in Eymmil-lak that while agencies might have discretion in selecting a particular pro- gram to conserve --an issue we do not decide here -- they must in fact carry out a program to conserve, and not an "insignificant" measure that does not, or is not reasonably likely to, conserve endangered or threatened species. To hold otherwise would turn the modest command of section 7(a)(1) into no command at all by allowing agencies to satisfy their obligations with what amounts to total inaction. Here, we have no trouble concluding that FEMA's program to conserve amounted to the total inaction that other courts have condemned. Through the pro- gram, FEMA has offered incentives for communities to develop conservation plans for approximately nine years, and yet FEMA has cited no record evidence that even a single community has developed or adopted such a plan in response. The program has had no effect whatsoever despite its long tenure, and it is therefore not a program to conserve. D. Whether the district court's injunction was incon- Page 12 sistent with the ESA and the NFIA On the basis of its conclusion that FEMA failed to fulfill its obligations under section 7(a)(2) of the ESA, the district court enjoined FEMA from issuing flood insurance for new developments in the suitable habitats of the listed species in Monroe County. FE- MA and the FWS challenge the injunction on appeal, claiming that the district court erred by requiring FEMA to act inconsistently with the NFIA. They argue that the NFIA commands FEMA to issue flood insurance to otherwise eligible communities and that FEMA is without discretion to selectively issue flood insurance in Monroe County. We find no error in the district court's injunction. 7 Where a federal agency fails to comply with the ESA, it is settled that a court may enjoin the agency from further noncompliant action pending satisfaction of the ESA's requirements. See Tenn. ValleGuth., 437 U.S. at 193-95, 98 S.Ct. 7 ; Wash. T'oxics Coal. v. EnytL Prot. Agen, 413 F.3 1024 13 (9th Cir.20051 ("It is well -settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements."). Furthermore, the in- junction at issue here does not require FEMA to act inconsistently with the command of the NFIA to is- sue flood insurance in otherwise eligible communi- ties. The injunction prohibits the issuance of flood insurance for new developments in the suitable habi- tats of the listed species, but it does not require FE- IV. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court.. 522 F.3d 1133, 66 ERC 1225, 21 Fla. L. Weekly Fed. C 515 0 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 522 F.3d 1133 522 F.3d 1133,66 ERC 1225,21 Fla. L. Weekly Fed. C 515 (Cite as: 522 Fad 1133) END OF DOCUMENT Page 13 ® 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUI No. 05-16990 FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT April 2, 2008 THOMAS K. KAHN CLERK D.C. Docket No. 90-10037-CV-KMM FLORIDA KEY DEER (Odocoileus virginianus clavium), NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs —Appellees, versus R. DAVID PAULISON, in his official capacity as Acting Director of The Federal Emergency Management Agency, an Agency of the United States of America, et al., Defendant, MONROE COUNTY, Movant—Appellant. No. 06-11 129 D.C. Docket No. 90-10037-CV-KMM FLORIDA KEY DEER, (Odocoileus virginianus clavium), NATIONAL WILDLIFE FEDERATION, et al., versus R. DAVID PAULISON, in his official capacity as Acting Director of The Federal Emergency Management Agency, an agency of the United States of America, et al., BAYVIEW DEVELOPMENT, LLC, SLICE OF PARADISE, LLC, et al., Plaintiffs —Appellees, Defendant, Movants—Appellants. Appeals from the United States District Court for the Southern District of Florida (April 2, 2008) Before ANDERSON and BARKETT, Circuit Judges, and TRAGER,* District Judge. PER CURIAM: A number of putative intervenors' appeal from the district court's denials of their motions to intervene in this case. We find no error and have resolved the merits of the underlying dispute. See Fla. Key Deer v. Paulison, No. 05-16374 ' Honorable David G. Trager, United States District Judge for the Eastern District of New York, sitting by designation. The putative intervenors are Monroe County and over fifty owners of property within Monroe County. 2 (1 Ith Cir. Apr. 1, 2008). We note, however, that we affirm without prejudice to the intervenors' ability, should they choose to do so, to file new motions to intervene with reference to the district court's future consideration of the recently proposed "reasonable and prudent alternatives" that the Federal Emergency Management Agency adopted. AFFIRMED. N