Item D1BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 20, 2011 Division: Growth Management
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` and 25` 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
June 15, 2011 – BOCC continued item
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
DISPOSITION:
Not Required
AGENDA ITEM # . -1
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, 20117:17 PM
To: Allen_Webb@fws.gov; amy.weinhouse@dhs.gov; Anne_Morkill @fws.gov; chddressp@ci.marathon.fl.us; Ron Sutton;
david.stearrett @dhs.gov; Davisson- Bryan; edward.koconis@Isiamorada.fl.us; gar'ettg@cl.marathon.fl.us; Gdmsley-
Susan; Howard - Derek; jay.berenzweig @islamorada.fl.us; ]oy.Duperault@em.myflorida.com; Kborglum@mcpafl.org;
lois.forster@dhs.gov; mary.muntree@dhs.gov; mayor @keycolonybeach.net; Mark.Bmwn@usdoj.gov;
Mary.Rountree@dhs.gov; NBoniske@wsh- law.com; prasad.inmula@dhs.gov; Paul_Souza@fws.gov;
Phillip HughesCUs.gov; Rebecca.]etton@dca.state.fl.us; Roberts - Michael; Roger Hernstadt
[hemstadtr@cl.marathon.fl.us); Haring -Skip; susan.wilson@dhs.gov; Schwab - Townsley;
Shane.Laakso@dca.state.fl.us; Shillinger -Bob; Spencer simonOfws.gov; Stankiewicz- Tiffany; Steven_Glass@fws.gov;
Susan.Wllson@dhs.gov; Tezanos - Mayra; Victoria_Foster@fws.gov; watsonl @ci.marathon.fl.us; william.straw0fts.gov;
W I nston_Hobgood@fws. gov
Attachments: 20110506_FEMA Biological - 1.docx (14 KB)
FWS /FEMA team: Thank you for the meeting you held on 5/6/11.
I wanted 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 [malito:Allen_Webb @Mw .gov]
Sent: Thursday, May 05, 201112:09 PM
To: amy.weinhouse @dhs.gov; Allen_Webb @fws.gov; Anne _Morkill @fws.gov; childressp @ci.marathon.fl.us; Ron
Sutton; davki.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; 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, 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-
MavraCcOmonroecou ntv -fl.aov
Allen D. Webb
Senior Fish and Wildlife Biologist
Fish and Wildlife Service
1339 20th Street
Vero Beach, Florida, 32960
772 - 562 -3909 x246
allen webbOfws.gov
https:Hwebmail.monroecounty -fl. gov /owa/ ?ae= Item& t = IPM .Note &id= RgAAAAC %2fGf 9... 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 24 and 25 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 of Homeland Security
Region IV
3003 Chamblee Tucker Road
Atlanta, GA 30341
� `"r
. 4 FEMA
April 14, 2011
CERTIFIED MAHJRETURN RECEIPT REQUESTED
7009 - 1410 0002 2660 0220 Y�
The Honorable Heather Carruthers
Mayor, Monroe County
530 Whitehead Street
Key West, Florida 33040
Dear Mayor Carruthers:
The purpose of this letter is to transmit to your community in accordance with the Biological
Opinion's Reasonable and Prudent Alternatives (RPAs) 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
limed.
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,
RDAs must be implemented in order to fulfill the requirements of Section 7(a)(2) of the ESA, 16
U.S. C. Section 1536(a)(2). 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); set 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 "f review 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(aX2). 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 arc located in an existing Habitat Conservation Plan. The maps identify
which parcels must be referred to the Service for re view, 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. (I file)
3. Shapefile of buffers for rice rat marsh rabbit, cotton mouse and woodrat. (4 files)
4. Excel spreadsheet list of aD 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
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 developmem 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 B(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
floodplam development permit applicants seeking a floodplam development permit to build a
structure or expand an existing stiuctrue. 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 RDAs.
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,
(1 44ax -t,
Brad G. Loar, CFM, Director
Mitigation Division
Enclosures
Cc: Joy Duperault, CFM, NFIP Program Manager, Florida Division of Emergency Management
Herschel Vineyard, Secretary, Florida Department of Environmental Protection
Rebecca Jetton, Area 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 t 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 (RDAs) as alterative 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 e
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 woodmt, 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
Ordinances) 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 berms 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 further 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 8
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.
S. Pursuant to 44 CFR 60.3(ax2), 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 -ev- 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 deficiencies 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 pert 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 further
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 12103/2010 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 RPA9.
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.
C UNTY f�MON ROE
KEY WEST FLORIDA 33040
(305) 294 -4641
g =r
June 20, 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 CO MMISSIONERS
Mayor Heather Carruthers, District 3
Mayor Pro Tem David Rice, District 4
Kim Wigington, District 1
George Neugent, District 2
Sylvia I 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"
(RPAs), which the U.S. Fish & Wildlife Service (FWS) and the Federal Emergency Management Agency
(FEMA) adopted via a settlement agreement of pending litigation 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.
Monroe County has serious concerns regarding the basic legal validity of the procedures and processes
contained in the RPAs and adopted pursuant to the settlement agreement. First, the primary FEMA flood
plain management regulation invoked in support of the RPAs -44 C.F.R. § 60.3(a)(2)— simply does not
authorize FWS or FEMA to delegate Endangered Species Act (ESA) enforcement responsibilities to the
County and impose the types of requirements on the County set forth in the RPAs. At most, 44 C.F.R. §
60.3(a)(2) merely requires participating communities to "[r]eview 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 Act Amendments of
1972, 33 U.S.C. 1334." 44 C.F.R. § 60.3(a)(2). Thus, any requirements imposed on the County beyond
merely assuring that all necessary Federal and State permits have been obtained, exceed the scope of
FEMA's regulatory authority under 44 C.F.R. § 60.3(a)(2). Second, the FWS's regulations at 50 C.F.R. §
402.02 define "reasonable and prudent alternatives" as alternative actions that ". . . can be implemented
consistent with the scope of the action agency's legal authority and jurisdiction..." 50 C.F.R. § 402.02.
To the extent that the RPAs and settlement agreement impose requirements on the County that exceed
FEMA's legal authority and jurisdiction, such requirements also violate FWS's regulation defining the
permissible scope of RPAs. Third, FWS has not justified or explained the legal basis upon which it has
utilized species "focus areas" in lieu of designating critical habitat pursuant to the procedural requirements
of 50 C.F.R. § 424.12. It should be noted —and the Fish and Wildlife Service has acknowledged —that
Monroe County has already adopted and implemented extensive measures to protect endangered species
and their habitat, including restrictions on development within sensitive areas.
Even in the face of serious legal and procedural flaws in the RPAs, Monroe County has attempted to
demonstrate to both FWS and FEMA its willingness to cooperate in the development of procedures that
could allow both agencies to carry out their legal responsibilities in conjunction with the County's
existing programs. Since April, 2010, when it was first made aware of the draft RPAs, 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 provides little incremental benefit towards the protection of
endangered species and their habitat since -- as FWS has acknowledged -- Monroe County has already
adopted strong conservation measures.
2) 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 for compliance
with the federal Endangered Species Act 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.
3) 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 both without any legal foundation and
unnecessarily harsh on the existing policyholders whose homes are unrelated to the new development
impacting the endangered species.
4) The FWS has indicated that when the permit impacts approach the thresholds set forth in
Table 18 of the biological opinion, it will reinitiate consultation under section 7 of the Endangered
Species Act. 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.
5) 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 alone including
initial costs estimated to be $335,000 and annual recurring costs estimated to be $210,000.
6) The maps that have been provided to the County by the agencies were not published for
the public or 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 or 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.
7) 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 eligible 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 follows:
• 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.
8) 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 we are concerned that, in the absence of a formal agreement to this effect, 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 their
interpretation of the settlement agreement, to adopt revised floodplain ordinances and maps 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 unacceptable to the County
Commission whose members have a duty to be as fully informed as possible when voting to change our
local laws.
County staff has communicated the concerns noted above to senior FEMA and FWS officials in
Washington during meetings held on May 24 and 25, as well as to FEMA and FWS regional staff during
the past year. The County has specifically requested (1) an MOU with FEMA and FWS that embodies the
representations that have been made concerning reliance on "keys" in lieu of the RPAs; (2) an agreement
to suspend the implementation of the RPAs until the underlying data noted above is provided to the
County for review and comment; (3) a reliable timetable for issuance of federal "keys"; (4) concurrence
in the County's request that, since the existing injunction remains in effect, thereby preventing any future
damage, the Court impose a stay of all current demands and requirements while a program that is legally
supportable is developed and publically discussed; (5) a review of legislative options by which to
authorize FEMA's compliance with the Endangered Species Act; and (6) financial support for initial and
recurring costs of implementing the RPAs. To date, the agencies have not responded to any of these
repeated requests.
Until these concerns have been addressed to our satisfaction, Monroe County can no longer participate in
efforts to facilitate the implementation of the RPAs, the biological opinion, and the settlement agreement
between the federal agencies and the plaintiffs. We reserve the right to take any and all lawful measures
to protect the County's interests, and that of our citizens, should the agencies continue to pursue the ill -
conceived and legally indefensible process set forth in the settlement agreement and RPAs.
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)
C UN17YMONROE
KEY WEST FLORIDA 33040
(305) 294 -4641
June 20, 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 Tem David Rice, District 4
Kim Wigington, District 1
George Neugent, District 2
Sylvia J. 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"
(RPAs), which the U.S. Fish & Wildlife Service (FWS) and the Federal Emergency Management Agency
(FEMA) adopted via a settlement agreement of pending litigation 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.
Monroe County has serious concerns regarding the basic legal validity of the procedures and processes
contained in the RPAs and adopted pursuant to the settlement agreement. First, the primary FEMA flood
plain management regulation invoked in support of the RPAs -44 C.F.R. § 60.3(a)(2}— simply does not
authorize FWS or FEMA to delegate Endangered Species Act (ESA) enforcement responsibilities to the
County and impose the types of requirements on the County set forth in the RPAs. Second, the FWS's
regulations at 50 C.F.R. § 402.02 define "reasonable and prudent alternatives" as alternative actions that ".
can be implemented consistent with the scope of the action agency's legal authority and jurisdiction..."
50 C.F.R. § 402.02. To the extent that the RPAs and settlement agreement impose requirements on the
County that exceed FEMA's legal authority and jurisdiction, such requirements also violate FWS's
regulation defining the permissible scope of RPAs. Third, FWS has not justified or explained the legal
basis upon which it has utilized species "focus areas" in lieu of designating critical habitat pursuant to the
procedural requirements of 50 C.F.R. § 424.12. It should be noted —and the Fish and Wildlife Service has
acknowledged —that Monroe County has already adopted and implemented extensive measures to protect
endangered species and their habitat, including restrictions on development within sensitive areas.
Even in the face of serious legal and procedural flaws in the RPAs, Monroe County has attempted to
demonstrate to both FWS and FEMA its willingness to cooperate in the development of procedures that
could allow both agencies to carry out their legal responsibilities in conjunction with the County's
existing programs. Since April, 2010, when it was first made aware of the draft RPAs, 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 provides little incremental benefit towards the protection of
endangered species and their habitat since -- as FWS has acknowledged -- Monroe County has already
adopted strong conservation measures.
2) 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 for compliance
with the federal Endangered Species Act 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.
3) 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 both without any legal foundation and
unnecessarily harsh on the existing policyholders whose homes are unrelated to the new development
impacting the endangered species.
4) The FWS has indicated that when the permit impacts approach the thresholds set forth in
Table 18 of the biological opinion, it will reinitiate consultation under section 7 of the Endangered
Species Act. 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.
5) 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 alone including
initial costs estimated to be $335,000 and annual recurring costs estimated to be $210,000.
6) The maps that have been provided to the County by the agencies were not published for
the public or 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 or 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.
7) 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 eligible 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 follows:
• 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.
8) 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 we are concerned that, in the absence of a formal agreement to this effect, 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 their
interpretation of the settlement agreement, to adopt revised floodplain ordinances and maps 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 unacceptable to the County
Commission whose members have a duty to be as fully informed as possible when voting to change our
local laws.
County staff has communicated the concerns noted above to senior FEMA and FWS officials in
Washington during meetings held on May 24 and 25, as well as to FEMA and FWS regional staff during
the past year. Until these concerns have been addressed to our satisfaction, Monroe County can no longer
participate in efforts to facilitate the implementation of the RPAs, the biological opinion, and the
settlement agreement between the federal agencies and the plaintiffs. We reserve the right to take any and
all lawful measures to protect the County's interests, and that of our citizens, should the agencies continue
to pursue the ill - conceived, legally indefensible process set forth in the settlement agreement and RPAs.
uc:
tiary mazer, 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)