County stands ground in FEMA tiff

"This tactic has been deployed against the county in years past, and residents are tired of and should not be subject to this disingenuous form of intimidation," wrote Congresswoman Ileana Ros-Lehtinen, R-Miami, in a letter to FEMA last month.

County stands ground in FEMA tiff
As Monroe readies legal salvo, federal agency threatens to end flood coverage
BY TIMOTHY O'HARA Citizen Staff
tohara@keysnews.com

Monday, January 2, 2012

Monroe County is gearing up for a serious fight with the Federal Emergency Management Agency (FEMA), which is threatening to take away the county's subsidized flood insurance coverage.

FEMA, which oversees the National Flood Insurance Program, sent County Mayor David Rice a letter last month stating the county has until Jan. 12 to comply with a series of recently implemented enforcement mandates involving development in endangered-species habitat, and the county is refusing. The county plans to file a lawsuit against FEMA, and to seek an injunction preventing FEMA from forcing the county to comply with the new measures, Chief Assistant County Attorney Bob Shillinger said.

The new regulations stem from a settlement that ended decades of litigation against FEMA by several environmental groups, which claimed FEMA encouraged development in endangered species habitat by offering subsidized flood insurance to property owners in those areas.

The county unsuccessfully sought to be a party to the lawsuit. County Administrator Roman Gastesi has said FEMA should not force the county to abide by the settlement until the 11th Circuit Court of Appeals in Atlanta rules on the county's latest request to have a say in the settlement. Two other courts have denied the county intervenor status.

FEMA is holding the county responsible for enforcing some conditions of that settlement, such as assessing individual properties for endangered species habitat, and denying building permits to homeowners seeking to build in that habitat. The restrictions would be in addition to the regulatory requirements already adopted by the county or imposed by the state as a result of the county's designation as an Area of Critical State Concern.

The County Commission voted in December to let the deadline pass and await official notice from FEMA citing the county for noncompliance.

The notice will trigger a 120-day probation period, Shillinger said, and FEMA will send notices to policyholders that there will be an additional $50 charge on their premiums while the county is on probation. FEMA most likely will distribute press releases on the pending probation as a way to "put pressure on the County Commission," he said.

Shillinger said the county would file its lawsuit and request for an injunction prior to the start of probation.

Ultimately, FEMA could suspend the county from the National Flood Insurance Program, which provides federally subsidized flood insurance in areas, like most of the Florida Keys, that are susceptible to flooding. Federally guaranteed home loans require flood insurance, and private sector flood insurance in those areas can be prohibitively expensive.

If Monroe County is suspended, new NFIP flood insurance policies will not be issued and existing policies would not be renewed, Shillinger said.

But the county fears that enforcing the court-imposed settlement by denying building permits would leave the county vulnerable to property rights litigation, referred to as "takings" lawsuits. One county estimate puts that liability at $65 million over the next 20 to 30 years, which adds up to nearly $1,000 per resident.

Enforcing the settlement also could cost the county $433,000 initially, and $210,500 a year thereafter, according to county estimates. The county contends the federal government is unlawfully delegating its enforcement obligations under the Endangered Species Act, and has violated the Federal Administrative Procedures Act by bypassing the formal rule-making process, Shillinger said.

Brad Loar, FEMA's flood plain mitigation program director, threatened the county in a Dec. 2 letter written in response to a county letter outlining deficiencies in the settlement agreement and the financial burden it imposes.

"We believe we have satisfactorily addressed all of the county's concerns," Loar responded. "You are strongly encouraged to take the necessary measures to avoid this probation action and possible subsequent suspension from the NFIP."

County Mayor David Rice said he hopes that the county and FEMA can reach an agreement.

"We would love to sit down and talk with them," Rice said. "Our plan is to initiate litigation the day after we receive the letter. We are willing to implement procedures, but [only] as long as it protects the county against takings cases. This is a difficult situation for FEMA and us."

"This tactic has been deployed against the county in years past, and residents are tired of and should not be subject to this disingenuous form of intimidation," wrote Congresswoman Ileana Ros-Lehtinen, R-Miami, in a letter to FEMA last month.

Each of the Florida Keys local governments are being asked to adopt the settlement requirements. There are 17,169 properties in the Florida Keys, worth $4 billion, that potentially could be impacted by the settlement, according to FEMA.

Layton, Islamorada, Key Colony Beach and Marathon officials have informed the county they most likely will adopt the requirements, Shillinger said. The county has not received a definitive answer from city of Key West, he added.

"It does not impact them as much as its impacts the county," Shillinger said. "They have fewer [endangered] species to deal with and fewer parcels of land."

tohara@keysnews.com