Item M5BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: February 16, 2011 Division: County Administrator
Bulk Item: Yes No X Staff Contact /Phone #: Roman Gastesi 292 -4442
AGENDA ITEM WORDING: Discussion and direction to staff on how to proceed with implementation of the
Fish and Wildlife Biological Opinion dated April 30, 2010 FWS Biological Opinion, as amended December 14,
2010.
ITEM BACKGROUND: Staff reported on the impacts of the Biological Opinion (BO) to the BOCC on October 20,
2010. A special Board meeting was held November 12, 2010 to go over the impacts of the BO on the County permitting
and operations, as well as the perceived risk associated with the BO to the County. The plaintiff and defendant reached a
settlement agreement, which the Court has accepted. Fish and Wildlife has contacted County staff to begin implementation
of the approved BO.
There is an extensive amount of work related to implementation of this BO for the County (see attached memo from
Growth Management Director Christine Hurley). County staff has developed 4 options for the Board to discuss and offer
direction:
Implement the BO with FWS & FEMA as provided in the Biological Opinion — Estimated cost:
a. Add Sr. Biologist position (1 Full time equivalent — FTE) for ordinance development, plan review,
coordination with FWS in development of standardized keys, data management/analysis and
reporting/tracking
b. Add GIS technician (1 Full time equivalent — FTE) to manage parcel /habitat data and additional mapping
requirements
c. Add administrative position (1 Full time equivalent — FTE) to address additional documentation,
recordkeeping and reporting requirements
d. Comprehensive Plan Amendment, new Land Development Codes, revise permitting procedures
ESTIMATED IMPLEMENTATION COSTS:
STAFF (implementation) $266,000.00
COMPUTERS, SOFTWARE, etc. $ 62,640.00
PUBLICATIONS $ 4,500.00
LEGAL $100,000.00 (at least)
TOTAL $433,140.00
ESTIMATED ANNUAL COSTS:
STAFF (annual) $206,000
PUBLICATIONS (annual) $4,500.00
TOTAL $210,500.00
2 Do not implement the RPA's.
a. RISK — Suspension of County from National Flood Insurance Program
3 File a lawsuit requesting injunction against FWS and FEMA from implementing the Settlement Agreement and the
BO until the County's issues are considered by the Court; and if the Court issues an injunction - do not implement
BO during course of lawsuit. Hold off on initiating implementation until Court rules on injunction.
4 File lawsuit as in Option 3 but begin implementation of BO on a limited basis including coordination with
FWS/FEMA and drafting and adoption of Ordinances related to implementation, which may include
Comprehensive Plan Amendments and Land Development Code amendments and analyzing revisions to
permitting procedures.
a. Add temporary Sr. Biologist position (1 Full time equivalent — FTE) or retain consultant with experience related
to Federal Endangered Species Act (ESA) including knowledge of Florida Keys species/habitat to assist County
with ordinance development, coordination with FWS in development of standardized keys, data
management/analysis and reporting/tracking.
ESTIMATED PARTIAL IMPLEMENTATION COSTS (GROWTH MANAGEMENT ONLY):
STAFF $145,000
LEGAL FEES (EXTERNAL COUNSEL) $100,000
COMPUTERS, SOFTWARE, etc. $1,640.00
TOTAL $246,640.00
PREVIOUS RELEVANT BOCC ACTION: The BOCC held a workshop on the proposed BO on
November 12, 2010 and directed the County Attorney to intervene in court and the County Administrator
to task lobbyists with this issue.
CONTRACT /AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Staff recommends Option 4, proceed with legal action requesting
injunction against FEMA, and proceed with initial steps necessary to prepare for future implementation
of the RDA's. Authorize funding and addition of Full Time Equivalent (FTE)s as listed under option4, if
approved.
TOTAL COST: $246,640 INDIRECT COST: BUDGETED: Yes No X
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH
APPROVED BY: County Atty OMB/Purchasing Risk Management _
DOCUMENTATION: Included X Not Required
Year
DISPOSITION: AGENDA ITEM #
MEMORANDUM
MONROE COUNTY GROWTH MANAGEMENT DIVISION
We strive to be caring, professional and fair
To: Roman Gastesi, County Administrator
From: Christine Hurley, AICP
Division Director
Date: February 1, 2011
RE: USFWS Biological Opinion
Section 7 of the Endangered Species Act (ESA) requires Federal agencies to "consult"
with USFWS to determine whether there would be negative effects of their activities on
federally protected species and their habitat, prior to taking action within an area that may
impact species or their habitat.
In 1990, the National Wildlife Federation, Florida Wildlife Federation, and the Defenders
of Wildlife (plaintiffs) filed suit against FEMA in the United States District Court,
Southern District of Florida (Court) and later added the USFWS, claiming that FEMA
had not consulted with USFWS while implementing the National Flood Insurance
Program (NFIP), by providing Federal flood insurance to home owners that constructed
homes within areas that may impact federally protected species and their habitat. During
this time period, the USFWS issued Biological Opinions for the effects of the NFIP on
federally protected species in the Keys in 1997 with an amendment in 2003 and another
BO in August 2006.
In 2005, the Court granted plaintiffs' motion for summary judgment and entered an
iniunction against FEMA issuing flood insurance on any new residential or commercial
development in suitable habitats of federally listed species in the Keys. The injunction
order became effective on September 12, 2005 when it was filed with the Clerk. In
granting summary judgment, the Court found that:
1. USFWS and FEMA violated the ESA's section 7(a)(2) and Administrative
Procedures Act prohibition against actions that are arbitrary, capricious, and abuse
of discretion, or otherwise not in accordance with the law by failing to protect
against jeopardy;
2. USFWS and FEMA failed to ensure against adverse modifications of critical
habitat for the endangered silver rice rat; and
3. FEMA failed to develop and implement a conservation program for listed species
under section 7 (a)(1) of the ESA.
On April 1, 2008, the 11 Circuit Court of Appeals affirmed the order granting the
injunction.
A list of real estate numbers was developed of properties within geographic areas of
suitable habitat, and those properties were stopped from obtaining flood insurance if they
constructed homes or commercial businesses. The plaintiffs agreed to eliminate some
properties from the list, if requested by the property owners and it appeared the habitat
was not significant, enabling some owners to obtain flood insurance after review of the
sites and the habitat.
Actions taken by County after FEMA Injunction
The Monroe County Commission adopted three resolutions (Resolution 420 -2005; 185-
2007; and 219 -2008) related to the FEMA injunction (attached). These resolutions
basically allow the Growth Management Division to "toll" the 60- day time limit for a
property owner to obtain their building permit after they are notified they have received a
Rate of Growth Ordinance (ROGO) allocation. In the interest of the public, the
Commission initially gave property owners 180 days for the "tolling" of the allocation
and/or building permits. Then, the later resolutions extended the "tolling" to until the
injunction is stayed or lifted.
To date, it is estimated that approximately 165 allocations or permits have been "tolled"
based on the resolutions passed by the Commission. Now that the BO is approved by the
Court and the case is settled, upon adoption of the revised "Floodplain Development
Permit" the County will need to adopt an interim process for notifying property owners
who were awarded allocations or permits that they are now eligible for their allocations
or permits. The interim process will need to specify a time period for the permittee to
obtain their building permits or relinquish their allocations or permits. Property owners
may be eligible for Senate Bill 360 or Senate Bill 1752 permit extensions (these
extensions are not applicable to allocations).
Actions taken by USFWS and FEMA after FEMA injunction
The Court ordered the USFWS to submit a new BO. USFWS submitted the BO on April
30, 2010. The new BO found jeopardy (based on habitat loss and indirect effects from
development expected to occur over a 13 -year period of implementation of the NFIP for:
Key Largo cotton mouse, Key Largo woodrat, Key tree- cactus, and Lower Keys marsh
rabbit. Development within the habitat areas would also result in incidental take for:
eastern indigo snake, Key deer, Schaus swallowtail butterfly, Stock Island tree snail, and
silver rice rat (species and habitat) in Monroe County.
As required by the ESA, the BO provides Reasonable and Prudent Alternatives (RPA) for
the four jeopardy species and Reasonable and Prudent Measures (RPM) for the five non-
jeopardy species. The Court directed the USFWS and FEMA that the RPA and RPM in
the new BO be less voluntary and do more to protect against habitat loss and
fragmentation and otherwise account for cumulative effects of the permitted projects
(homes/businesses). Based on input from the Plaintiff and interested parties, the RPA's
were subsequently revised and the revised RPA's became final with the execution of the
Settlement Agreement on January 6, 2011.
The amended RPA and RPM (beginning on page 164 of the BO) include actions the
County must take to ensure that FEMA's NFIP does not violate the ESA. In other words,
the County now has additional responsibilities to protect listed species as a condition of
participating in the NFIP. These responsibilities are similar to the process which was in
place from about 1997 until 2005. This time, however, the responsibilities are required
whereas before they were voluntary. A general summary of how the process should
work, is as follows:
1. Using new County aerial photography, the USFWS developed Species Focus
Area Maps. These maps identify potentially suitable habitat for the nine federally
listed species referenced above (including both "jeopardy" and "non jeopardy"
species.
2. USFWS will create and maintain a list of real estate numbers for the properties
that occur within listed species habitat based upon the Species Focus Area Maps.
3. FWS will provide the maps to FEMA for distribution to the participating
communities in Monroe County.
4. FEMA will require participating communities in the County to revise their Flood
Damage Prevention Ordinances within 12 months of acceptance of the BO by the
Court (January 6, 2012) to:
A. Use the "the list' of real estate numbers and Species Focus Area Maps to
evaluate where development may affect species habitat.
a. If an area to be developed is not on the list and not within the
boundaries of the Species Focus Area Maps, no consultation with
FWS is needed.
b. If area to be developed is on "the list' and/or within the boundaries of
the Species Focus Area Maps, whether the property is in an area not
subject to NFIP or not:
i. The USFWS will work with Monroe County and participating
communities to develop keys to help County staff determine
whether further review by the USFWS is necessary.
ii. The keys will include conservation measures such as replanting
of important host plant species if they are removed, or deer -
friendly fence construction agreements. If these agreements
are established with the land owner and become part of the
development permit then no further USFWS review will be
required.
c. For properties that require further USFWS review, the County will
forward "weekly" the applications for new development (occurring in
the Species Focus Areas where the development expands the footprint
of a structure that requires clearing of or placement of fencing into
vegetation) to USFWS. The USFWS will then determine:
1. If development is NOT LIKELY TO ADVERSELY
AFFECT — this finding and any specific project
modifications required shall be incorporated into the
County vermit AND ENFORCED or the Count
request that FEMA deny individual flood insurance for
the development being_ permitted. FEMA will provide
a yearly report to USFWS of permits receiving this
determination.
2. If development MAY ADVERSELY AFFECT
individually or cumulatively — this finding may
necessitate changes in the permit conditions. The
finding and conditions shall be incorporated into the
County permit AND ENFORCED or the County will
request that FEMA deny individual flood insurance for
the development being_ permitted Any "take" of
habitat for these sites must not exceed the levels
identified within the April 2010 BO. FEMA will also
provide a yearly report to USFWS of these types of
permits that will include the amount of incidental take
exempted under the incidental take provision in the BO.
As permits are issued in areas where habitat exists for
the nine species evaluated in the BO, and where a
property would participate in the NFIP, the amount of
the habitat that is cleared or impacted resulting from
development (the direct FEMA Action Impact in the
table below) shall not exceed the following acreages
(only acreage that is cleared or impacted is counted
toward standard — entire site acreage is not counted). If
total acreage for a given species is exceeded, re-
initiation of formal consultation is required for that
species.
If a permit is issued for property that occurs in a
Species Focus Area, but is not subject to the NFIP, or
any other Federal program (e.g., Army Corps of
Engineers Federal permit, Federal grant, etc.) the
acreage impacted will be deducted from the Cumulative
Impact Acreage in the table below. An example of a
cumulative impact project is utility or school
construction. The USFWS will work with the County
and municipalities to identify and track these impacts.
Species
FEMA Action
Cumulative
hn act Acres
Impact (acres)
Eastern Indigo
1789
645
Snake
Key deer
291
81
Key Largo
218
35
Cotton Mouse
Key largo
218
35
woodrat
Key tree cactus
587
70
Lower Keys
84
37
marsh rabbit
Schaus
372
43
Swallowtail
Silver rice rat
172
75
Critical Habitat —
37
40
silver rice rat
Stock Island tree
587
70
snail
B. FEMA will request that each participating community which proposes a
change to the Rate of Growth Ordinance or the Tier classifications provide
notice of the proposed change to FEMA and the USFWS. In the event that
current Habitat Conservation Plans (HCP) designated in the Keys under
section 10 of the ESA expire, all properties addressed by these HCPs that fall
within the Species Focus Areas will be referred to the Service for review per
the guidelines in this RPA.
C. FEMA will coordinate with the County and the USFWS in development of a
brochure, website and materials for addressing predation by domestic and
feral cats in areas within the Species Focus Areas and their buffer zones to
give to permittees. FEMA will report yearly how many permits were issued.
D. FEMA will monitor compliance and evaluate the County every 6 months.
ANY violation of the procedures established under the RPA will be
considered a substantive program deficiency or violation under 44 CFR 60.3
and FEMA will warn the County, give them 60 days to remedy /correct
deficiencies (through enforcement actions of permit conditions with
corresponding request to deny flood insurance, up to and including seeking
civil or criminal penalties or other appropriate legal action against the
property owner). If FEMA determines non - compliance that has caused take
of threatened or endangered species that cannot be corrected or offset, FEMA
will initiate procedures for probation or suspension of communily eli 'bility
for flood insurance.
E. FEMA will conduct training.
F. FEMA will require the County to provide a brochure to permit applicants
about the referral process to USFWS and post information on the website.
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@NT OF
United States Department of the Interior
' FISH AND WILDLIFE SERVICE
�, ►q 1875 Century Boulevard
q�cH 3 �� Atlanta. Georgia 30345
In Reply Refer To:
FWS/R4 /ES DEC 14 2010
Mr. W. Craig Fugate, Administrator
Federal Emergency Management Agency
500 C Street, S.W.
Washington, D.C. 20472
Dear Mr. Fugate:
This letter constitutes an amendment to the U.S. Fish and Wildlife Service's (Service) April 30,
2010, jeopardy Biological Opinion (BO), for the Department of Homeland Security's Federal
Emergency Management Agency's (FEMA) administration, of the National Flood Insurance
Program (NFIP) in participating communities in Monroe County, Florida. The BO was provided
by the Service in response to the District Court of South Florida (District Court) Court Order
dated February 26, 2009. This case has a litigation history dating back to the early 1990s, which
required FEMA to consult under section 7 of the Endangered Species Act. The Plaintiffs have
reviewed the April 30, 2010, BO and identified areas of concern with components of the
Reasonable and Prudent Alternative (RPA) developed by the Service. The Plaintiffs, FEMA,
U.S. Department of Justice, and the Service through negotiations have resolved the issues in the
April 30, 2010, jeopardy BO and have entered a Settlement Agreement.
The Settlement Agreement requires, among other stipulations, the Service to provide a final
amended biological opinion within 14 days after entry of the Settlement Agreement. The
Settlement Agreement was provided to the District Court on December 3, 2010. The Settlement
Agreement also requires FEMA to issue a written decision whether to adopt the RPA set forth in
the final amended biological opinion within 30 days after the Service issues the final revised
biological opinion.
Accordingly, the Service is providing a final amended biological opinion in compliance with the
Settlement Agreement. The areas of challenge noted by the Plaintiffs in the April 30, 2010,
jeopardy BO were specific to the RPA. No other challenges were noted. Accordingly, the
following RPA replaces in its entirety the original RPA in the April 30, 201 0, jeopardy BO and
is the same RPA as filed with the Court on December 3, 2010. The RPA is referenced as Case
4:90 -cv- 10037 -KMM, Document 482 -1, Entered on FLSD Docket 12/03/2010. All other
components, information, and assessment in the April 30, 2010, BO remain in effect.
TAKE PRIDE
IN AMERICA —lot
EXHIBIT 1
Mr. W. Craig Fugate
Amended RPA
Page 2
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
Mr. W. Craig Fugate
Page 3
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
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.
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 fog 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
Mr. W. Craig Fugate
Page 4
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
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 further 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
Mr. W. Craig Fugate
Page 5
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.
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
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.
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.
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 10(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
Mr. W. Craig Fugate
Page 6
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.
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
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 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 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
Mr. W. Craig Fugate
Page 7
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
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.
Mr. W. Craig Fugate
Page 8
If you have any question, please contact Paul Souza, Field Supervisor, for our South Florida
Office at 772 -562 -3909 extension 285 or Patrick Leonard, Assistant Regional Director for
Ecological Services, of this office at 404 - 679 -7085.
Sincerely yours,
°for" Cynthia K. Dohner
Regional Director
County of M onro e
Growth Management Division
Planning&Environmental Resources � . Board of County Commissioners
Department ' � ,; ` Mayor Heather Carruthers,Dist.3
2798 Overseas Highway, Suite 410 / �' ► • Mayor Pro Tern David Rice,Dist.4
Marathon FL 33050 L"�f ,' �: Kim Wig in on Dist. 1
�° '�' :"r George Ne agent,Dist.2
Voice: (305)289-2500 g g
FAX: (305)289-2536 Sylvia J.Murphy,Dist.5
We strive to be caring,professional and fair
MEMORANDUM :
DATE: FEBRUARY 14,.2011
TO: . BOARD OF COUNTY COMMISSIONERS
THROUGH: ROMAN GASTESI;COUNTY ADMINISTRATOR
/4/Z7
FROM: CHRISTINE HURLEY,AICP;GROWTH MANAGEMENT DIVISION:DIRECTOR
SUBJECT: ADDITIONAL INFORMATION RELATIVE TO FEBRUARY 16, 2011 BOARD OF COUNTY
COMMISSION AGENDA ITEM -. U.S. FISH & WILDLIFE SERVICE REASONABLE & PRUDENT
ALTERNATIVES(RPA's)
This memorandum and associated, attached:Table "Summary of Vacant, Privately Owned Parcels Potentially Affected by
2010 FWS=FEMA Biological Opinion" are being provided as supplemental information related to :the:February 16, 2011
Board of County Commission agenda item: The agenda item generally seeks direction from the Board of County Commission
on how to proceed with implementation of the U.S Fish & Wildlife Service (FWS) Biological Opinion and corresponding
Reasonable arid Prudent Alternatives (RPAs):for the administration:of the National Flood Insurance Program in the Florida
Keys. Since the Board discussed this issue on November 12,2010,FWS and the Plaintiff entered into a settlement agreement
that contains amended RPA's, FWS and.FEMA are requesting the County meet with:them to begin implementation. The
amended RPAs identify the actions that must:be taken by FEMA, FWS and Monroe County.::Growth Management Division
staff and:legal staff have identified four potential options for the Board to consider related to implementation. Other variations
may also be prudent. This memo and table are provided to:demonstrate the magnitude of the BO.
The table below shows the total number of parcels countywide that are;currently on the FEMA injunction list and:the total
number of parcels within the new Focus Area Maps:
,All County;Parcels. . FEMA Injunction FWS Focus:Area Maps.
Public" Private Public Private'; Public Private
Mainland 13;848 88 4,133 88
NA NA
Keys 12,108 31,128 10,979 21,388 12,048.. : 13,750
57,172 36,588 25,798
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I '1.5
I Iloll i ..
Overall, the attached table demonstrates vacant, privately owned parcels. Those parcels are the most likely to be at risk for
eventual permit denial under the BO after the allowed impact acres are absorbed. Therefore, this analysis focuses on those
parcels.
There are 43,236 total parcels within unincorporated Monroe County (excluding the Mainland) containing 65,191 acres. Of
these, 9,609 are privately owned, vacant parcels. For the privately owned, vacant parcels, 7,059 parcels (7876 acres) are on
the FEMA injunction list from 2005; 7243 parcels (8886 acres) are within the new Focus Area Maps (the area subject to
review under the BO). Of those parcels/acres within the Focus Area, staff further refined the parcels/acres based on the type
of habitat that exists as of 2009 (most recent data). The habitat is classified as either 1)Hammock/Pineland parcels/Acreage
or 2) Wetland Parcels/Acreage. Classifying the land into those categories is relevant to the BO and the way each species is
classified for potential habitat. The BO(table 18) allows the County to issue permits that impact a certain amount of acreage
for each type of species that are considered to be potentially jeopardized. The maximum impact acreage in the BO is far less
than the amount of acreage that exists within the Focus Area. Because the BO requires the County to deny permits after the
"impact acres" are absorbed or impacted the staff believes the remainder parcels/acreage represent the risk for takings or Bert
J.Harris claims,since the County would have to deny permits or use once exceeded.
If you look at the table labeled"Analysis of Potential Economic Liability to Monroe County" you can see that for Key Deer,
the BO (Table 18) allows the county to issue permits up to the point in which 291 acres of hammock and/or wetlands are
impacted. Based on the data provided in the table, there are 4029 privately owned vacant acres of that type of habitat in
unincorporated Monroe County. Therefore,the county would be expected to deny permits requested after the 291 acre impact
is exceeded. Based on the assessed value of the vacant privately owned parcels within Key Deer habitat, the property
appraiser's current values indicate an average value of$10,080.11 per vacant acre. If you multiply that value times the
amount of acreage the county would be expected to deny permits for,there is a potential liability for the Key Deer habitat of
$37,674,907. County staff further calculated the average values and potential impact habitat acreage for each jeopardized
species to determine the overall potential liability in total. The total potential liability for all species, based on assessed value
is estimated to be: $61,180,190. This number is considered conservative, since it does not represent market value.
Below are Growth Management and legal department responses to some of the questions that have been raised regarding the
proposed Options:What are the implications to the Community in terms of Pros and Cons in implementing vs. not
implementing the RPA's?
1. Implement the BO RPA(Option 1)
Pros
• Parcels or houses constructed while on the injunction list may be able to obtain Flood Insurance after
consultation with the FWS.
• For some property owners, the permit process would be streamlined if they can meet the guidelines in
the Species Keys. Some property owners would be able to utilize their property to some degree
provided they complied with the above Keys, competed in ROGO and obtained building permits.
• Monroe County residents would continue to be eligible for insurance under the NFIP.
Cons
• Once the acreages provided in Table 18 of the BO have been reached,no further building permits could
be issued, resulting in potential takings and Bert J. Harris Act potential liability for the County. Over
the long term, potentially increasing taxes of Monroe County residents and draining Monroe County
resources. A conservative estimate of potential liability is$61,180,190.
• For certain parcels, there is no guarantee that they will be able to meet the Keys guidelines or would
receive a favorable determination from FWS, in which case Monroe County would be required to deny
the permit.
• Costs associated with permitting, enforcement and reporting are significant and will require additional
manpower and resources by Monroe County with no assistance from FWS or FEMA.
Do Not Implement RPA's
Pros:
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• Monroe County does not expend resources (financial and manpower) in developing rules, procedures
and increased permitting and reporting requirements
• Effectively puts FWS and FEMA on notice that the RPA's are not acceptable to Monroe County
• May force FWS and FEMA to consider the alternatives proposed by Monroe County as detailed at the
November 12,2010 Workshop,specifically:
o require each private or public property owner seeking development approval to consult with
the FWS and obtain (a) necessary Section 10 or other approvals and (b) certification of ESA
compliance from FWS prior to the issuance of Monroe County building permit;and
o require FWS to directly enforce the terms and conditions of Section 10 or other approvals
granted by the agency to the property owner.
o Recommend FEMA directly review individual requests for flood insurance and deny those
requests where the new development would adversely affect endangered species.
o Recommend that FEMA, by regulation, prohibit Federal Flood Insurance in the suitable or
known habitat of all endangered species,except the eastern indigo snake.
o Recommend expansion of Coastal Barrier Resource System to include focus areas, except the
eastern indigo snake.
o Others?
Cons:
• After 14 months (if not sooner) FEMA notifies Monroe County of non-compliance and initiates
probation and suspension procedures
• FEMA may withdraw Monroe County's eligibility in the NFIP and subsequently cancel current
policies, thereby creating substantial hardship for existing residents. This impact is illustrated in the
NFIP report from 2010 summarized here:
Community Number Total Total Total Claims Total Paid
Policies Coverage Premium Since 1978 Since 1978
City of Key West 8,419 $1,975,456,700 $9,586,512 4,521 $173,394,509
City of Layton 97 $ 23,378,400 $ 96,977 19 $ 270,458
Village of Islamorada 2,934 $ 674,255,300 $2,574,885 217 $ 5,156,824
City of Marathon 2,975 $ 616,549,900 $3,098,246 905 $34,063,716
Key Colony Beach 1,217 $ 250,140,800 $ 951,865 323 $3,658,505
Monroe County 17,936 $3,923,780,100 $17,056,489 12,393 $171,389,908
County Total 33,578 $7,463,561,200 $33,364,994 18,375 $387,933,920
• New construction (and potential buyers) cannot obtain Federally subsidized insurance or Federally
backed mortgages
• Mortgagors may force place insurance on property owners who are no longer covered by NFIP. Based
on the data above, as of May 6, 2010 FEMA had issued 17,936 NFIP policies to residents of
unincorporated Monroe County with annual premiums of$17,056489.00; an average of$950 annually
per policy. According to an article published in the Citizen on November 28, 2010, the cost of private
flood insurance to a resident on Big Pine Key was $17,000 annually. Assuming the cost of forced
place insurance per household who currently have flood insurance would increase to $17,000/yr
compared to $950/yr(NFIP),with 17,936 insured households in Monroe County,the annual cost for all
households would be $287,872,800, compared to the estimated conservative takings risk(see Option 4
below)of$61,180,190 is substantial.
2. What is the worst case scenario of the potential liability to the County if we do not implement the RPA's?
All property owners could lose flood insurance coverage under the NFIP. In addition, Monroe County could
lose National Disaster assistance.
3. Based on the RPA's, what is the process if the Board chooses not to implement? What happens if we do not
implement the RPA's?
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The RPA's require the participating communities to establish written procedures for implementation within 14
months of acceptance of the BO by the Court. If the RPAs are not implemented,FEMA will notify the County
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.
Staff believes that if Monroe County does not implement the RPA's, FEMA will initiate procedures for
probation and suspension of the County's eligibility for Flood Insurance. If the County does not respond to
FEMA or fails to make progress within 60 days of the initial notice, then FEMA may also initiate these
procedures.
The above considered, if we do not implement then the current injunction list remains in place. It is not clear
from the RPA's if FEMA could continue to issue Flood Insurance policies to parcels that are NOT on the
injunction list and also not in a Focus Area.
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•
Summary of Vacant,Privately Owned Parcels Potentially Affected by 2010 FWS-FEMA Biological Opinion
.. .. f _.Q JIIyaco
/11/ i / /i
Iii! Q / i / P /
Q , l' Ai ' ? . ' •'-- 't,: '-''-' -g:1:"'' ' '— 17 .7, ''' ,- . t'.7'''',. '-. .. . f I ,-, --4- r-,-, ° -, __ ,
. [I` .
Total cel co _orfated MC ,43_36 .. 65191 $11 9361.63 098,,� 17 920-• 5 412 r' ..;..15•-73. : ..,.._$50_ 23$61 7.264 `311 3: � 3 - , ,1.0 0 1'
Total Prwate-:Vacant=Parcels•, mnco ortated MC,-t w :,_ .9609-> � _9 285,, :._ 372 854-941 >;. ..,4 371: .;�7 694 •,;-_ •: , .:� �� ' ,�
__.r.. -.._ (_U rp- ).___.,.t.. .. , .. _... ,__. . ._.> $ ,.,._�.,;.;, _ -_,..__. .__._._.> -� .,., t._.�.,744.... _...".. .r .178 r:�.4,21b _1�U_� „ 3,64$•.4 _5;9.81 _ :.°_2,31:1: _•1,19.:
FEMA In unchon:L�st nvate.Vacant 7.059. . _7 876. :=-3 76 603 -- 3-9�_ _- ) .-_ _.. $ 86 .. .. 73 . 6 364 .:: X474=. 118,. '°1,952 v-53'3 3 135. r:4,;93.4, -,�;. 2-222:. 1,190
Parcels in FWS Focus Area Maps -_ •'7 243 8.886 $208 210 440 *•4280 7 679 734- 177 2,008 691 3,648' 5,9812 ._1,194
Key Deer • ,CAB, . 4,811 $48,495,578 3,127' -.'4 643. ::;444 ,4 _8.7 `-`2 °% k• ,`i3' . _
Marsh Rabbit 0 t56 ' '4,651' $14,211,724 __�-
1 218 4;454 11,': 4 {LW
Key Largo Woodrat/Cotton Mouse 140 ": 207•• $18,680,961 - . 23:', -. 37 •0'. , Q C 0, '° `3
Silver Rice Rat . _--
Li ::- 3,982 $5,481,528 : : .1 428:' 3-952 _ 13 -.7 E ,a o• ._ °.
Eastern Indigo Snake sf: 9 ee 2;330 $26,345,678 1,050' 2;:129 57. 14: e�' ,,
Schauss Swallowtail Butterfly .: _40 207 $18,680,961 23:' ;_3.7 ,. `_; 0 ._ :,. _ 0' - - ------- •-----� Cr� ::.,�.�:�.
Stock Island Tree Snail 2;0 3,074 $53,769,983 ,1,123' 2696,.a:_ _ _3�3 99- - - - -_- -, a ..,.==3:
Tree Cactus :. ,2,0455 3 074 $53,769,983 : : 1,123, 2;696 ,,.` ,.323 ._99 - -. q _•
° j.�.: .�w�
Analysis of Potential Economic Liability to Monroe County
Habitat Type :.
Privat
Table Vacant
Assessed
18** Hammock/ Acres of Potential$
Species Impact Pineland wetlands Habitat in•Difference Value per liability
Acres Focus
acre
..
Area.
Key Deer 291 X X 4,029 3,738 $ 10,080.11' $37,674,907.24
Marsh Rabbit 84 X X • : 949 865 $ 3,055.94 $ 2,642,863.70
Key Largo Woodrat/Cotton Mouse •218 X _ • • 63 0 $ 90,366.03 $ =
Silver Rice Rat . • .. 172 . .. X .. X . . 2,646 .2,474 $ 1,376.59 S.3,405,772.58
Eastern Indigo Snake... 1789.. . . X . 943 0 $..11,309.41 $ •
-
Schauss Swallowtail Butterfly 372 X 63 0 $ 90,246.19 $ : -
Stock Island Tree Snail 587 • X 1,086 499 $ 17,491.40 $ 8,728,207.65
'Tree Cactus •-• 587- X 1,086 • 499 $- 17,491.86 $ 8,728,439.01
4100 $61,180,190..18
*Tier data includes Staff recommendations for currently undesignated parcels
**Table 18 from the April 2010 Biological Opinion;page 163