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Item J4BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: June 15, 2011 Division: Growth Mann eg ment Bulk Item: Yes _ No X Department: Administration Staff Contact Person/Phone #: Christine Hurley 289-2517 AGENDA ITEM WORDING: Update, discussion and direction to staff on how to proceed with implementation of the U.S. Fish and Wildlife Service's Biological Opinion dated April 30, 2010 , as amended December 14, 2010 and authorization for Mayor Heather Carruthers to sign attached letter responding to FEMA's April 14, 2011 letter. ITEM BACKGROUND: FWS/FEMA and County staff presented the FWS Biological Opinion (BO) to the BOCC on October 20, 2010. A follow up Special BOCC meeting was held November 12, 2010 to go over the impacts of the BO on County permitting and operations, as well as the perceived risk associated with the BO to the County. The environmental groups who brought the suit in 1990 and the Federal agencies reached a settlement agreement, which the court has accepted in January 2011. The County is not a party to the lawsuit or the settlement agreement; however, the agreement includes administrative, permitting, and enforcement responsibilities that the County must perform. The settlement agreement also requires the County to amend its floodplain ordinances to include the requirements of the settlement agreement. The work related to implementation is described in the attached memo dated February 18, 2011. On March 16, 2011, the BOCC authorized staff to file a lawsuit seeking to prevent the implementation of the Settlement Agreement and the BO until the County's issues are considered by the Court. The BOCC also directed staff not to begin implementation of the BO. Since the March 2011 BOCC meeting, several legal actions have been taken, which have been discussed with the BOCC, by legal staff. Further, staff met with FWS/FEMA officials on May 24`h and 25`h, 2011 to further coordinate the County's concerns, as well as hear additional information relative to the details of the BO and the implementation requirements (see attached). PREVIOUS RELEVANT BOCC ACTION: October 20, 2010 — FWS presentation of Biological Opinion and RPA to BOCC November 12, 2010 — BOCC Workshop outlining FWS BO and RPAs March 16, 2011 — Discussion and Direction by BOCC on how to proceed, given administrative costs and risk of implementation CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Direct Staff to continue meeting with FWS/FEMA staff to determine administrative requirements, as well as risk factors of implementation of the BO. Continue pursuing legal action related to MC position with implementation TOTAL COST: N/A INDIRECT COST: N/A BUDGETED: Yes No _ DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: N/A REVENUE PRODUCING: N/A AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management _ DOCUMENTATION: Included x Not Required DISPOSITION: AGENDA ITEM # C UNTY Oa MONROE KEY WEST FLORIDA33040 (305) 294-4641 June 15, 2011 Mr. Brad Loar, Chief Community Mitigation Program Federal Emergency Management Agency Department of Homeland Security, Region IV 3003 Chamblee Tucker Road Atlanta, GA 30341 Dear Mr. Loar: BOARD OF COUNTY COMMISSIONERS Mayor Heather Carruthers, District 3 Mayor Pro Tern David Rice, District 4 Kim Wigington, District 1 George Neugent, District 2 Sylvia 3. Murphy, District 5 We are in receipt of your letter dated April 14, 2011 whereby you transmitted a CD that contains digital species focus area maps (without any base maps demonstrating parcels or habitat features) and the key dates and requirements of the April 30, 2010 biological opinion reasonable and prudent alternatives (RDAs), which the U.S. Fish & Wildlife Service (FWS) and the Federal Emergency Management Agency (FEMA) adopted via a settlement agreement and which the District Court accepted on January 11, 2011. Please note that all of this was done without Monroe County's input or participation during the development of the written procedures and/or processes that would be required to be adopted and implemented under this settlement agreement. Since April, 2010, the county has communicated with FWS and FEMA the following concerns, some of which were included in the County's motion to intervene in the lawsuit before it was settled: 1) The settlement agreement was negotiated by the plaintiffs and federal defendants without the benefit of the input of Monroe County. 2) The settlement agreement as currently written provides little benefit towards the protection of endangered species since -- as FWS has acknowledged -- Monroe County has already adopted strong conservation measures. 3) The settlement agreement places Monroe County in the position of enforcing the Federal Endangered Species Act by requiring Monroe County to become the reviewing agency and to place permit conditions into building permits issued. This requirement increases the County's potential exposure to liability for takings or inverse condemnation claims under the U.S. and Florida Constitutions as well as claims brought under Florida's Bert J Harris Act. This concern is especially troubling now that the FWS has established acreages, by species, that may be impacted by development until the acreage threshold is exceeded. Based on the RPAs, it appears that Monroe County must "deny" permits when the acreages are exceeded. Placing Monroe County in this position is unacceptable. 4) The RPAs indicate that the punishment for the County for not implementing the RPAs is a loss of flood insurance for the entire community. This penalty is unnecessarily harsh on the existing policyholders whose homes are unrelated to the new development impacting the endangered species. 5) The FWS has indicated that when the permit impacts approach the thresholds set forth in Table 18 of the biological opinion, they will reinitiate consultation. However there are no requirements for that agency to do so, which leaves little comfort for Monroe County, which is the entity responsible for denying permits if the impact thresholds are exceeded. 6) The settlement agreement and RPAs impose a heavy burden of administration on Monroe County and the five cities located within the County, with substantial costs to the County including initial costs estimated to be $335,000 and annual recurring costs estimated to be $210,000. 7) The maps that have been provided to the County by the agencies were not published for the public nor the County to review and make comment. To this date, the mapping provided includes GIS shape files digitally. This information is not adequate for the County nor the public. Florida law requires a great deal of transparency in local governance and this County Commission has been vigilant in increasing public participation in the process. 8) The map overlap of the Focus Area/buffer areas with the County's Tier III parcels creates an administrative dilemma for the County as the following breakdown demonstrates: Of the Total Number of parcels within the unincorporated areas of Monroe County, there are approximately 18,362 Tier III parcels. Tier III parcels are those which have been designated as appropriate for development and are encouraged to apply for permits through a rigorous and complex permitting process. Based on the boundaries FEMA/FWS transmitted to us, 13,188 Tier III parcels are either completely within focus areas/buffer areas or intersect focus areas/buffer areas. A further breakdown of these conditions follow: • Completely within Focus Areas: 937 • Intersecting Focus Areas: 4,001 • Completely within Buffer Areas: 713 • Intersecting Buffer Areas: 7,537 During meetings with agency personnel prior to the BO/RPA being incorporated into the settlement agreement, County staff provided documentation supporting this analysis in order to demonstrate to the agencies that the "fringe" areas that had not been evaluated based on parcel lines would be in conflict with parcels Monroe County has designated for "appropriate for development". We have not seen a response from FWS/FEMA regarding this apparent conflict nor an explanation of the cause of the conflict. Without such an explanation, Monroe County cannot explain to its citizens the basis for action on the proposed BO/RPA. We provided a sample map and demonstrated that GIS overlap of boundaries is causing an intersection of focus area/buffer area with parcels that should not be designated as focus area/buffer area. You indicated that you could form a GIS working group to go over the edge/fringe issues. We are in favor of reviewing the maps, after publication and request you examine specifically the Tier III areas of the mapping and eliminate as many parcels as you can from the Focus Area/Buffer Areas that are designated Tier III by the County. 9) FWS Vero Beach office staff has suggested that Monroe County can essentially ignore the specific language set forth in the RPA's and rely instead on a set of "keys" or guidelines, which will simplify the analysis for each permit application. There has been no indication of when all of the "keys" will be made available and there is a concern that the representations of current personnel might not be honored in the future but that the black letter of the RPAs will be mandated. Nevertheless, FEMA and FWS have obligated the County, through the settlement agreement, to adopt revised floodplain ordinances implementing the BO by January 11, 2012. The prospect of being forced to adopt changes to our floodplain ordinances prior to receiving the keys that will be used to administer the new program is problematic for members of a legislative body like the County Commission who have a duty to be as fully informed as possible when voting to change our local laws. The County has serious concerns about the legality of the settlement agreement and the RPAs, as well as the authority of FEMA and FWS to impose such requirements on the County. Despite these misgivings and without prejudice to our right to challenge them in an appropriate forum, Monroe County is prepared to discuss a less burdensome approach, and has already begun to do so, but cannot do so within the deadlines of the settlement agreement, especially if the "keys", and final maps will not be available in the near future. Thus, at a minimum the County must ask for additional time to receive and review all keys and have a full discussion with FWS and FEMA on implementation questions. Will FEMA and FWS consider supporting such a request for extension? Assuming we could agree on alternative procedure that is acceptable to Monroe County and the federal agencies, would either or both agencies be willing to provide funding for additional costs incurred by Monroe County in implementing the RPAs and BO? At a minimum, if these concerns are to be addressed, FEMA and FWS should seek a longer time period for Monroe County to implement, and all of the County's efforts should be initiated after FWS publishes the "keys" or "protocols" that should be used for permitting purposes. That way, Monroe County can determine the impact on the administration, enforcement, and processes expected in the RPAs. Finally, given the numerous verbal representations made by FEMA and FWS during meetings, the County seeks a written memorandum of understanding clarifying the roles of each agency and indicating the Federal government's willingness to shoulder the takings liability, should permits be denied as a result of the protocols being developed and enforcement of the Endangered Species Act. County staff communicated some of these concerns and requests to senior FEMA and FWS officials in Washington during meetings held on May 24 and 25, and are awaiting their response. Susan Wilson from the Atlanta office participated by telephone in the May 241h meeting with FEMA. We have also communicated these concerns to various FEMA and FWS staff during the past year. Sincerely, Heather Carruthers Mayor Cc: Gary Frazer, U.S. Fish & Wildlife Service (via e-mail) James Walke, FEMA (via e-mail) David Stearrett, FEMA (via e-mail) Lois Forster, FEMA (via e-mail) Jennifer Tylander, FEMA (via e-mail) Barbara Montoya, Esq., FEMA (via e-mail) Amy Weinhouse, Esq., FEMA (via e-mail) FW: FEMA BO Information Meeting - May 6, 2011 Agenda Page 1 of 2 FW: FEMA BO Information Meeting - May 6, 2011 Agenda Hurley -Christine Sent: Thursday, May 12, 2011 7:17 PM To: Allen_Webb@fws.gov; amy.weinhouse@dhs.gov; Anne _Morkill@fws.gov; childressp@ci.marathon.fl.us; Ron Sutton; david.stearrett@dhs.gov; Davisson-Bryan; edward.koconis@islamorada.fl.us; garrettg@ci.marathon.fl.us; Grimsley- Susan; Howard -Derek; jay.berenzweig@islamorada.fl.us; Joy.Duperault@em.myflorida.com; Kborglum@mcpafl.org; lois.forster@dhs.gov; mary.rountree@dhs.gov; mayor@keycolonybeach.net; Mark.Brown@usdoj.gov; Mary.Rountree@dhs.gov; NBoniske@wsh-law.com; prasad.inmula@dhs.gov; Paul_Souza@fws.gov; Phillip_Hughes@fws.gov; Rebecca.Jetton@dca.state.fl.us; Roberts -Michael; Roger Hernstadt [hemstadtr@ci.marathon.fl.us]; Haring -Skip; susan.wilson@dhs.gov; Schwab-Townsley; Shane.Laakso@dca.state.fl.us; Shillinger-Bob; Spencer_simon@fws.gov; Stankiewicz-Tiffany; Steven_Glass@fws.gov; Susan.Wilson@dhs.gov; Tezanos-Mayra; Victoria_Foster@fws.gov; watsonl@ci.marathon.fl.us; william.straw@dhs.gov; Winston_Hobgood@fws.gov Attachments: 20110506_FEMA Biological-S.docx (14 KB) FWS/FEMA team: Thank you for the meeting you held on 5/6/11. I wantgd to recap Monroe County staff comments/concerns, as well as discussion items: 1. The CD provided by FEMA that included GIS layers without base maps, parcels, or reference habitat data is not a mapping system that can be used as a resource for implementation. As explained during the meeting, implementation of this system is to be done with resources provided by FEMA/FWS. Currently, there is not a single property owner in Monroe County that can access the maps you provided to look up whether their sites fall into the Focus areas or the Buffer areas. In addition, printed maps are important to use during permitting, especially as time goes on and the information is needed for challenges or appeals to permitting decisions. Historic documentation is also extremely important. 2. Overlap of the Focus Area/buffer areas with the County's Tier III parcels creates an administrative dilemma for the County as the following breakdown demonstrates: Of the Total Number of parcels within unincorporated Monroe County, there are approximately 18,362 Tier III parcels. Based on the boundaries FEMA/FWS transmitted to us, 13,188 Tier III parcels are either completely within focus areas/buffer areas or intersect focus areas/buffer areas. A further breakdown of these conditions follow: • Completely within Focus Areas: 937 • Intersecting Focus Areas: 4,001 • Completely within Buffer Areas: 713 • Intersecting Buffer Areas: 7,537 The reason we provided FWS/FEMA a print out of this situation during our 3rd meeting prior to the BO/RPA being signed, was to demonstrate to the agencies that the "fringe" areas that had not been evaluated based on parcel lines would be in conflict with parcels Monroe County has designated for "appropriate for development". We have not seen a response from FWS/FEMA regarding this apparent conflict nor an explanation on the cause of the conflict. Without such explanations Monroe County cannot explain to its citizens the basis for action on the proposed BO/RPA. We provided a sample map and demonstrated that GIS overlap of boundaries is causing an intersection of focus area/buffer area with parcels that should not be designated as focus area/buffer area. You indicated you could form a GIS working group to go over the edge/fringe issues. 3. We still object to being designated the enforcement entity for the Endangered Species Act (ESA) with "denial" of permitting being our responsibility. 4. We also object to the penalty for Monroe County being the loss of flood insurance for our existing residents instead of perhaps the injunction being reinstated. 5. We find that the structure of the RPA leaves no protection for buyers of properties with unknown violations. 6. We have not been able to determine the real impacts of the enforcement requirements or the https://webmail.monroecounty-fl.gov/owa/?ae=Item&t=IPM.Note&id=RgAAAAC%2fGf9... 5/26/2011 FW: FEMA BO Information Meeting - May 6, 2011 Agenda Page 2 of 2 permitting coordination because FWS has not provided the "keys" or protocols for each species as discussed in the RPA. We emailed several sample properties that we would like to have you walk us through relative to the permitting review, using the keys for species that are more complicated than indigo snake. We understand you are working on producing those keys; however, analysis of the impacts on permitting decisions without them is not ideal. 7. As discussed during this meeting, if one of the main issues related to threatened species is free roaming cats, why has that not been a discussion item as a remedy to this issue, instead of creating an elaborate, expensive administrative process that involves multi -agency review and enforcement? Would it be beneficial to examine this as a potential solution? As discussed, we will probably talk with our Board on June 15 and will keep you posted. I know you discussed a future meeting on June 17. Please let us know if you want us to reserve the Key Largo meeting place. Thank you, Christine Hurley, AICP Monroe County Growth Management Division Director (305) 393 3361 From: Allen_Webb@fws.gov [mailto:Allen_Webb@fws.gov] Sent: Thursday, May 05, 2011 12:09 PM To: amy.weinhouse@dhs.gov; Allen_Webb@fws.gov; Anne_Morkill@fws.gov; childressp@ci.marathon.fl.us; Ron Sutton; david.stearrett@dhs.gov; Davisson-Bryan; edward.koconis@islamorada.fl.us; garrettg@ci.marathon.fl.us; Grimsley-Susan; Howard -Derek; Hurley -Christine; jay.berenzweig@islamorada.fl.us; Joy.Duperault@em.myflorida.com; Kborglum@mcpafl.org; lois.forster@dhs.gov; mary.rountree@dhs.gov; mayor@ keycolonybeach.net; Mark.Brown@usdoj.gov; Mary. Rountree@dhs.gov; N Bon iske@wsh- law.com; prasad.inmula@dhs.gov; Paul_Souza@fws.gov; Phillip_Hughes@fws.gov; Rebecca.Jetton@dca.state.fl.us; Roberts -Michael; Roger Hernstadt; Haring -Skip; susan.wilson@dhs.gov; Schwab-Townsley; Shane. Laakso@dca.state.fl. us; Shillinger-Bob; Spencer Simon@fws.gov; Stankiewicz-Tiffany; Steven_Glass@fws.gov; Susan.Wilson@dhs.gov; Tezanos-Mayra; Victoria_Foster@fws.gov; watsonl@ci.marathon.fl.us; william.straw@dhs.gov; Winston_Hobgood@fws.gov Subject: FEMA BO Information Meeting - May 6, 2011 Agenda Attached is the agenda for the meeting, the call in number was provided via separate email from Tezanos- MavraCaD-monroecounty-fl.4ov Allen D. Webb Senior Fish and Wildlife Biologist Fish and Wildlife Service 1339 20th Street Vero Beach, Florida, 32960 772-562-3909 x246 allen webb(a)-fws.Qov https://webmail.monroecounty-fl.gov/owa/?ae=Item&t=IPM.Note&id=RgAAAAC%2fGf9... 5/26/2011 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: May 27, 2011 RE: FEMA & FWS Meetings in Washington D.C. Staff met with FEMA and FWS official in Washington D.C. on May 24a' and 25a' and outlined the following concerns: 1. Settlement agreement was made between plaintiffs and defendant federal agencies, without benefit of participation by Monroe County. 2. Settlement agreement, and Reasonable and Prudent Alternatives, anticipate heavy burden of administration by Monroe County and the constituent cities, with substantial initial and recurring annual costs. 3. Focus Area Maps/buffer areas overlap with the County's Tier III parcels creating an administrative dilemma for the County as the following breakdown demonstrates: Of the Total Number of parcels within unincorporated Monroe County, there are approximately 18,362 Tier III parcels. Based on the boundaries FEMA/FWS transmitted to us, 13,188 Tier III parcels are either completely within focus areas/buffer areas or intersect focus areas/buffer areas. A further breakdown of these conditions follows: • Completely within Focus Areas: 937 • Intersecting Focus Areas: 4,001 • Completely within Buffer Areas: 713 • Intersecting Buffer Areas: 7,537 MC previously provided FWS/FEMA a print out of this situation during a meeting prior to the BO/RPA being signed, which demonstrated to the agencies that the "fringe" areas that had not been evaluated based on parcel lines would be in conflict with parcels Monroe County has designated for "appropriate for development". No response from FWS/FEMA regarding neither this apparent conflict nor an explanation on the cause of the conflict has been given. FWS indicated at their May 6, 2011 meeting they would form a GIS working group to examine potential fringe and perhaps edit the maps. 4.Vero Beach FWS staff has suggested that they will develop "keys" or protocols/standards for Monroe County to use in the permitting process. Of the 9 species, 1 draft key has been published (eastern indigo snake) and FWS Vero Beach staff has indicated that the substantial administrative challenges will be remedied by these keys. 5. Given the timelines looming in the RPA (MC required to adopt ordinances by January, 2012), and the fact that FWS has not published "Keys/protocols", will FWS/FEMA request additional time in the settlement agreement. 6. Is FEMA/FWS willing to enter into a Memorandum of Understanding outlining each agency's role in the implementation of the RPAs? 7. The County may seek to amend Federal Law to clarify FEMA authority in using discretion on issuing Federal Flood Insurance on a parcel by parcel basis thereby eliminating the need for the County to "consult" with FWS on behalf of the FEMA action of issuing flood insurance. U.S. Department or Homeland Security Region IV 3003 Chamblee Tucker Road Atlanta, GA 30341 �U.F FEMA April 14,2011 '"° s• CERTIFIED MAIIMTURN RECEIPT REQUESTED Itee-W y/i/1 7009-1410 0002 2660 0220 The Honorable Heather Carruthers Mayor, Monroe County 530 Whitehead Street Key West, Florida 33040 Dear Mayor Camithers: The purpose of this letter is to transmit to your community in accordance with the Biological Opinion's Reasonable and Prudent Alternatives (RDAs) a set of CDs that contain the Species Focus Area Maps (SFAMs) and a companion list of real estate numbers of parcels (RE List) that are within the SFAMs. In addition, this letter outlines the key dates and requirements of the RPAs that the communities in Monroe County that participate in the National Flood Insurance Program (NFIP) must adopt along with the written procedures that must be developed in order to implement the RPAs. On January 11, 2011, the United States District Court for the Southern District of Florida (Court) accepted a Settlement Agreement between the National Wildlife Federation and Defenders of Wildlife (Plaintiffs), and the U.S. Department of Homeland Security's Federal Emergency Management Agency (FEMA) (Defendant) on the Biological Opinion regarding administration of the NFIP in the Florida Keys. Also, on January 11, 2011, the Court accepted the United States Fish and Wildlife Service's (Service) amended Biological Opinion (April 30, 2010, as amended) on FEMA's administration of the NFIP in the communities in the Florida Keys, and determined the Biological Opinion to be compliant with the Endangered Species Act (ESA). In accordance with the Settlement Agreement, once FEMA and the Service provide notice to the Court that the communities have revised their Flood Damage Prevention Ordinances and have implemented procedures to reference and use the updated RE List and SFAMs, the injunction that is currently in place that prohibits the sale of flood insurance for new structures will be lifted. Introduction The Biological Opinion found that FEMA's continued administration of the NFIP in the communities of Monroe County, Village of Islamorada, City of Marathon, City of Key West, City of Key Colony Beach, and City of Layton was likely to jeopardize the continued existence of the Key Largo cotton mouse, Key Largo woodrat, Lower Keys marsh rabbit, and the Key tree - cactus. Because the Service found jeopardy for these federally -protected endangered species, RPAs must be implemented in order to fulfill the requirements of Section 7(a)(2) of the ESA, 16 U.S. C. Section 1536(aX2). Please find a copy of the RPAs enclosed with this letter. www.fema.gov 2 Under Section 7 of the ESA, Federal Agencies are prohibited from causing jeopardy to a listed ESA species or adversely modifying its critical habitat. Certain portions of the ESA are applicable to everyone, whether a Federal agency, State agency, local jurisdiction or an individual. Under section 9 of the ESA, we all have a responsibility to ensure our actions do not cause a take, which means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct, to the ESA -listed threatened and endangered species. Under section 9 of the ESA, actions or decisions enacted by you and your officials are subject to this prohibition regardless of federal involvement. The National Flood Insurance Act of 1968 ("NFIA') provides that, to qualify for Federal flood insurance, participating communities must give FEMA satisfactory assurances that "adequate land use and control measures" have been adopted by the State or local government consistent with "the comprehensive criteria for land management and use development under section 1361 of this title." 42 U.S.C. § 4012 (c); see also 42 U.S.C. § 4022. The NFIA implementing regulations specify the minimum requirements governing the adequacy of the floodplain management regulations for flood -prone areas adopted by a participating community. Among other requirements, a participating community is required to "[reeview, proposed development to assure that all necessary permits have been received from those governmental agencies from which approval is required by Federal or State Law, including section 404 of the Federal Water Pollution Control Action of 1972,33 U.S.C. 1334." 44 C.F.R. § 60.3(a)(2). Under this provision, your community must review proposed development to assure that it does not jeopardize threatened and endangered species in violation of the ESA. Reasonable and Prudent Alternatives In RPA paragraph 1, FEMA is required to distribute all real estate numbers of parcels that are within the SFAMs. These maps identify all potentially suitable habitat parcels for all nine species listed in Table 17 of the Biological Opinion. The species include both "jeopardy" and "no jeopardy" species and the maps include all potential suitable habitats, public and private, whether or not they are located in an existing Habitat Conservation Plan. The maps identify which parcels must be referred to the Service for review, as outlined in RPA paragraph 4. This list and maps were developed by the Service, based upon best available science, and could be updated if necessary, although they are not expected to be updated frequently. The enclosed CDs contain the following files of the RE List and the SFAMs: 1. Shapefiles of individual SFAMs (potential suitable habitat), not including critical habitat, for the nine species evaluated in the Biological Opinion. (9 files) 2. Shapefile of rice rat critical habitat with constituent elements. (1 file) 3. Shapefile of buffers for rice rat marsh rabbit, cotton mouse and woodrat. (4 files) 4. Excel spreadsheet list of all properties in the Keys intersecting the Focus Area (potential suitable habitat). (1 file). 5. Google Aml files of 1-3 above. (14 files) In RPA paragraph 2, FEMA is required to ensure that communities in Monroe County revise their flood damage prevention ordinances to reference and use the updated RE List and the 3 SFAMs to implement and enforce the procedures required in paragraph 4 of the RPA. Your community must revise its flood damage prevention ordinance by January 11, 2012, which is 12 months from the date of the Settlement Agreement. In the event that the RE List and the SFAMs are updated by the Service, your community must use the new list and/or maps. Your community should determine whether updates to the list and/or maps can be automatically adopted or must be adopted each time the Service provides an update to the list. Your community must notify FEMA of your requirements for adopting the list and maps. Your community is required to adopt a provision in your flood damage prevention ordinance to incorporate review recommendations (or Reasonable and Prudent Measures resulting from formal consultation) under Section 7 and Section 10 of the ESA as enforceable conditions in your floodplain development permits. This requirement is also specified in paragraphs 4(a) and (b) of the RPAs. In RPA paragraph 3, for areas mapped as containing unsuitable habitat, your community is required to place a form letter in the permit file that indicates: a. the individual that made the determination; b. the date of the determination; and c. the date of the SFAM and RE List used to make the determination. After the form letter is completed, your community may take action on the proposed floodplain development permit. Your community is required to include the procedures described in RPA paragraph 3 as part of the procedures required under RPA paragraph 5. RPA paragraph 4 requires that your community adopt a provision to forward weekly to the Service those permit applications proposing floodplain development of lot(s) or floodplain development on vacant parcels and floodplain development on parcels with a structure within the SFAMs that will: 1) expand the footprint of the structure; or 2) expand associated clearing of, or placement of fencing into native habitat. In RPA paragraph 4(a), the Service may condition a finding of "may affect, not likely to adversely affect" on the implementation of specific modifications to a proposed action to avoid possible impacts on species. The determination and its specific project modifications are binding conditions that must be incorporated into the floodplain development permit(s) for the development of the parcel, and must be enforced by the community. The community is required to maintain a signed copy (applicant signed and community co -signed) of the floodplain development permit. Your community is required to include this procedure as part of the procedures required under RPA paragraph 5. RPA paragraph 4(c) requires communities in Monroe County to provide FEMA and the Service a notice of proposed changes in the Rate -of -Growth Ordinance or the Tier classifications. This notice to FEMA and the Service must be provided at the time the proposal is presented in writing to the staff in the community. RPA paragraph 5 requires communities in Monroe County to establish written procedures by March 11, 2012, which is 14 months from date of the Settlement Agreement, for referring floodplain development permit applicants to the Service for review, inclusion of any conditions or modifications into the floodplain development permits involved, and enforcement of those conditions or modifications, as outlined in RPA paragraph 4. 4 Furthermore, your community will be required to exercise its enforcement authority to require the permittee to comply with the Service's conditions that are incorporated as conditions of the floodplain development permit. In the event of non-compliance by the permit applicant, your community will request, as outlined in RPA paragraph 8(b), that FEMA deny individual flood insurance for the subject property. RPA paragraph 6 requires FEMA to coordinate with the communities in Monroe County in your development of a brochure, information for website posting, and other materials for addressing predation of federally -protected species by domestic and feral cats in areas within endangered and threatened species habitats and buffer zones in the Special Flood Hazard Area This brochure and outreach materials should describe how to protect threatened and endangered species by keeping pets indoors. Your community will be required to provide this brochure to all floodplain development permit applicants seeking a floodplain development permit to build a structure or expand an existing structure. The information developed under this RPA must be ready for permit use by March 11, 2012. RPA paragraph 11 requires communities in Monroe County to provide to floodplain development permit applicants a brochure or similar written materials about the floodplain development permit referral process and post this information on the community's website and otherwise make it generally available. FEMA and the communities will coordinate with the Service in developing the brochure and other materials to the public. The information developed under this RPA must be ready for permit use by March 11, 2012. Conclusion FEMA and the Service look forward to providing your community with assistance in revising your Flood Damage Prevention Ordinance and developing written procedures to incorporate provisions identified in this letter and the RPAs. FEMA and the Service also look forward to meeting with you in the near future to answer questions and begin implementation of the RPAs. Should your community need assistance in using the enclosed CD, FEMA or the Service is available to assist you. Please contact Ms. Mary Rountree of my staff at or 770-220-5366 if you have any further questions or need assistance. Sincerely, (Iaxa4ov� Brad G. Loar, CFM, Director Mitigation Division Enclosures Cc: Joy Du erault, CFM, NFIP Program Manager, Florida Division of Emergency Management Herschel Vineyard, Secretary, Florida Department of Environmental Protection Rebecca Jetton, Areas of Critical State Concern Administrator, Florida Department of Community Affairs Dianne Bair, Monroe County Floodplain Manager Case 4:90-cv-10037-KMM Document 482-1 Entered on FLSD Docket 12/03/2010 Page 1 of 6 In situations where the Service has determined that the action as proposed by the action agency may result in jeopardy to a listed species, the Service can provide an alternate action that if implemented can avoid jeopardy to the listed species. The alternative recommended action needs to meet four specific criteria for implementation by the action agency. For the proposed action, as determined by FEMA, the Service provides the following alternative recommended action. REASONABLE AND PRUDENT ALTERNATIVE Regulations (50 CFR §402.02) implementing section 7 of the Act define reasonable and prudent alternatives (RPAs) as alternative actions, identified during formal consultation, that: (1) can be implemented in a manner consistent with the intended purpose of the action; (2) can be implemented consistent with the scope of the action agency's legal authority and jurisdiction; (3) are economically and technologically feasible; and (4) would, the Service believes, avoid the likelihood of jeopardizing the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Because this opinion has found jeopardy, FEMA is required to notify the Service of its final decision on the implementation of the RPA. The Court's March 2005 Order criticized the 2003 RPA for (1) relying on voluntary measures and (2) not protecting against habitat loss and fragmentation or otherwise accounting for the cumulative effects of the permitted projects. These two points have been addressed in the revised RPA below. First, FEMA has more clearly described the steps that will be taken if the RPA is not followed. Second, the revised RPA will result in a review process that will allow the Service to consider the cumulative impacts of a series of permit proposals at clear points in time, rather than on a piecemeal basis. Our jeopardy determinations were based on habitat loss and indirect effects from floodplain development expected to occur over a 13-year period of implementation of the NFIP. Therefore, we base this RPA, on habitat loss and indirect effects from floodplain development. The indirect effects from floodplain development apply to free roaming cat predation of the Key Largo cotton mouse, Key Largo woodrat, and Lower Keys marsh rabbit and traffic impacts associated with Key deer. 1. The Service will create and maintain an updated list of all real estate numbers of parcels (either vacant lots or built upon lots) that are within the Species Focus Area Maps. The Species Focus Area Maps identify all potential suitable habitat parcels for all nine species on Table 17, including both "jeopardy" and "no jeopardy" species including all potential suitable habitat, public and private, whether or not in an existing HCP. The Species Focus Area Maps identify which parcels must be referred to the Service for review as outlined in RPA 4. The Species Focus Area Maps were developed by the Service, based on the best available science, and indicate potentially suitable, federally threatened or EXHIBIT 1 Case 4:90-cv-10037-KMM Document 482-1 Entered on FLSD Docket 12/03/2010 Page 2 of 6 endangered species habitat for the species subject to the prohibitions of this RPA. Companion buffer zone maps were also created and maintained for the Key Largo cotton mouse, Key Largo woodrat, and Lower Keys marsh rabbit. The Service will provide these maps to FEMA for distribution to all participating communities in the Florida Keys portion of Monroe County. The updated real estate parcel list will be completed within 60 days of acceptance of this BO by the Court, and then updated as needed by the Service. We do not anticipate that updates would occur frequently, but may be needed as habitat changes or new information (habitat or species) becomes available. 2. Pursuant to 44 CFR 60.3 (a)(2), FEMA will require Monroe County and other participating communities in the Florida Keys to revise their Flood Damage Prevention Ordinance(s) to reference and use the updated real estate list and Species Focus Area Maps (referenced in RPA paragraph 1) to implement and enforce the procedures required in paragraph 4 within 12 months of acceptance of this BO by the Court. In the event that the real estate list and/or Species Focus Area Maps are updated by the Service, the new list and/or maps will be used. FEMA will also require the county and participating communities as per 44 CFR 60.3(a)(2) to incorporate Service review recommendations (or Reasonable and Prudent Measures resulting from formal consultation) under section 7 and section 10 incidental take exemption and implementing terms and conditions as enforceable conditions in their floodplain development permits. 3. In areas mapped as containing unsuitable habitat, participating communities in Monroe County will place a form letter in their permit file that indicates: a. the individual that made the determination, b. the date of the determination; and c. the date of the Species Focus Area Map and real estate parcel list used to make the determination. After this form letter is completed, participating communities in Monroe County may take action on the proposed floodplain development permits without fiuther concerns for threatened and endangered species (or their critical habitat). 4. Any issuance of floodplain development permits for all development, including those activities that will remove vegetation, will require further consultation for the real estate parcels within the Species Focus Area Maps. Specifically, participating communities in Monroe County will forward weekly to the Service those applications proposing floodplain development of lot(s) or floodplain development on vacant parcels and floodplain development on parcels with a structure within the Species Focus Area Maps that will: 1) expand the footprint of the structure; or 2) expand associated clearing of, or placement of fencing into native habitat. The Service will then determine either of the following: a) Determine that a proposed action would not adversely affect federally threatened or endangered species or designated critical habitat either individually or cumulatively. If the Service determines that the action would not adversely affect threatened or endangered species or designated critical habitat, they will notify FEMA, the participating community, and the applicant of the not likely to Case 4:90-cv-10037-KMM Document 482-1 Entered on FLSD Docket 12/03/2010 Page 3 of 6 adversely affect determination. The Service may condition a finding of "may affect, not likely to adversely affect" on the implementation of specific modifications to a proposed action to avoid possible impacts on species. The determination and its specific project modifications are binding conditions that must be incorporated into the participating community's floodplain development permit(s) for the development on the parcel, and must be enforced by the participating community. This action may be achieved by the Service through the development of an assessment key. The assessment key would provide a step -wise process for applicants, the county and NFIP participating communities, and FEMA to follow that may result in Service concurrence determinations through acceptance of the key's requirements. An applicant signed and community co- signed copy of the acceptance form will be maintained in the floodplain development permit file. FEMA will provide a yearly report of how many floodplain development permits were issued by NFIP participating jurisdictions that were assessed through the use of the assessment key and species affected. b) Determine that a proposed action may adversely affect threatened or endangered species or designated critical habitat either individually or cumulatively. In this event, the Service would notify FEMA, the participating community, and the applicant by letter of the "may affect" determination and the need for conditions, modifications, or other additional actions to insure the protection required under section 7 or section 10 of the Act. The "may affect" determination letter and any specific project modifications required upon fiuther review are binding conditions that must be incorporated into the participating community's floodplain development permit(s) for the development on the parcel and must be enforced by the participating community. The required modifications will be designed to ensure compliance with either section 7 or section 10 of the Act and that the amount of incidental take exempted through compliance with section 7 or section 10 of the Act does not exceed the levels of incidental take individually or cumulatively exempted in this BO. FEMA will provide a yearly report of how many floodplain development permits were issued by NFIP participating jurisdictions and the amount of incidental take exempted under the incidental take provision in this BO. c) FEMA will request that each participating community which proposes a change in ROGO or the Tier classifications provide notice of the proposed change to FEMA and the Service at the time the proposal is presented in writing to the staff of the participating community. In addition, notwithstanding any changes to ROGO and/or the Tier classification, proposed actions within the properties designated in the Species Focus Area Maps will continue to receive additional review as outlined in this RPA. In the event that current HCPs designated in the Florida Keys under section 10 of the Act expire, all properties addressed by these HCPs that fall within the Species Focus Area Maps will be referred to the Service for review per the guidelines in this RPA. 5. Pursuant to 44 CFR 60.3(a)(2), FEMA will require participating communities to establish written procedures within 14 months of acceptance of this BO by the Court for referring Case 4:90-cv-10037-KMM Document 482-1 Entered on FLSD Docket 12/03/2010 Page 4 of 6 floodplain development permit applicants to the Service for review, inclusion of any conditions or modifications into the floodplain development permits involved, and enforcement of those conditions or modifications, as outlined in RPA paragraph 4. The participating community will exercise its enforcement authority to require the permittee to comply with the Service's conditions that are incorporated as conditions of the participating community's floodplain development permit. In the event of non- compliance with the floodplain development permit conditions by the applicant, the participating community will request, as outlined in RPA paragraph 8(b), that FEMA deny individual flood insurance for the subject property. 6. Free -Roaming Cats: FEMA will coordinate with participating communities in Monroe County in their development of a brochure, information on a website, and other materials for addressing predation by domestic and feral cats in areas within endangered and threatened species habitat and buffer zones in the Special Flood Hazard Area. Participating communities will be required to provide this brochure to all floodplain development permit applicants seeking a floodplain development permit, to build a structure, or expand an existing structure. This brochure will describe how to protect threatened and endangered species by keeping pets indoors. FEMA will provide a yearly report and a list by parcel of how many floodplain development permits were issued by NFIP participating communities for each of the buffer zones by species affected in the Special Flood Hazard Area. 7. Pursuant to 44 CFR 59.24, FEMA will monitor the participating communities' compliance with the conditions of any "not likely to adversely affect" effect determination or any section 7 or section 10 incidental take authorizations and their implementing terms and conditions. FEMA will coordinate with the Service every 6 months to evaluate the extent of compliance with the Act for proposed floodplain development in participating communities in Monroe County. FEMA will require the communities to maintain, whichever is obtained, either the Section I0(a)(1)(B) permit or the completed section 7 consultation in the administrative record for the floodplain development permit file for future review by FEMA during their community assistance visits. FEMA will visit participating communities in Monroe County every 6 months. During community visits to participating communities in Monroe County, FEMA will evaluate the administrative records maintained by the participating community on floodplain development permits issued for proposed actions described in this RPA to ensure compliance with the RPA requirements. FEMA will use information provided by the Service or other Federal, State, or local agencies to achieve this purpose. FEMA will treat any violation of the procedures established under the RPA as a substantive program deficiency or violation under 44 CFR 60.3. 8. Within 15 days of determining non-compliance with the procedures established under the RPA, FEMA will notify the participating community in writing that substantial progress must be made to correct the program deficiencies or remedy any violation within 60 days. The community must provide FEMA with a written response within 60 days of FEMA's notice, of the actions being taken to correct the program deficiencies and any violation. If the community cannot resolve all of the program deficiencies or remedy the violation Case 4:90-cv-10037-KMM Document 482-1 Entered on FLSD Docket 12/03/2010 Page 5 of 6 within 60 days, the community must describe in its response the actions it will take and a schedule for resolving the deficiencies and remedying the violation. Correcting defdiencies and remedying violations can take a variety of forms depending upon their type and nature. The following are examples of possible actions that FEMA would expect the community to undertake within 60 days or to include as part of a remediation plan to correct any remaining program deficiencies and violations remaining after 60 days: (a). Demonstrate that the community has initiated an enforcement action against the property owner who did not apply for a floodplain development permit and provide a description of the enforcement action being taken. If the community has not initiated some type of enforcement action against the property owner, the community should issue a stop work order or take other action to stop fluther floodplain development impacts. The enforcement action can include, through coordination with the Service, restoration of the site to pre -impact conditions. (b). Should enforcement actions proposed by the participating community not be complied with by the applicant, the participating community will submit a request for a declaration of denial of flood insurance following 44 CFR Part 73 (Section 1316 of the National Flood Insurance Act of 1968) to FEMA for construction of an insurable structure that has occurred without receipt of the necessary section 7 or section 10 incidental take exemption by the Service. Upon submission of a valid declaration, FEMA then will deny the flood insurance to that property. (c). If corrective actions referenced in RPA paragraph 8(a) are not possible, then FEMA will continue to deny the individual flood insurance policy. Insurance availability will be restored to a property only if the community has submitted a valid rescission to FEMA correcting the deficiencies referenced in RPA paragraph 8(a). A valid rescission from the community shall consist of a description of, and supporting documentation for, the measures taken to bring the structure into compliance with the local floodplain management ordinance and this RPA along with other requirements in accordance with 44 CFR 73.3 (Section 1316). (d). Rescission of the floodplain development permit for any floodplain development action if the participating community issued a floodplain development permit in contravention to the Service's technical assistance recommendations or the Service's section 7 or section 10 incidental take authorizations and implementing terms and conditions. (e). Seek civil or criminal penalties or other appropriate legal action against the property owner as provided for in the participating community's ordinance or code. 9. If FEMA determines the participating community's non-compliance with the procedures established under the RPA has caused take of threatened or endangered species that Case 4:90-cv-10037-KMM Document 482-1 Entered on FLSD Docket 12/03/2010 Page 6 of 6 cannot be corrected or offset, FEMA will initiate procedures outlined in 44 CFR 59.24 for probation and suspension of community eligibility for flood insurance. In addition, if the community is not responsive to FEMA's initial notice or it has not made substantial progress within 60 days to correct the program deficiencies and remedy the violation, FEMA will initiate the probation and suspension procedures outlined in 44 CFR 59.24 that allows FEMA to place participating communities on probation or suspend them from the NFIP. If the community fails to adhere to the agreed upon remediation plan and schedule or fails to demonstrate why the schedule for resolving any remaining program deficiencies or violation cannot be adhered to, FEMA will also initiate procedures outlined in 44 CFR 59.24 for probation and suspension. 10. FEMA, in conjunction with the Service, will conduct training sessions with public officials and local building officials on the requirements of these RPAs. 11. FEMA will require participating communities to provide to floodplain development permit applicants a brochure or similar written material about the floodplain development permit referral process and post this information on the community's website and otherwise make it generally available. FEMA and the participating communities will coordinate with the Service in developing this communication to the public.