ATLANTA – April 4, 2008 – A federal appeals court has upheld a 2 1/2-year injunction blocking new construction in the Florida Keys from receiving federal flood insurance in places where rare creatures such as the Key deer roam.

The decision, issued Tuesday by the 11th Circuit Court of Appeals in Atlanta, covers at least several hundred acres of privately owned land in the Keys, but the legal implications could affect property and federally protected species in other states.

A three-judge panel affirmed an injunction issued in September 2005 by U.S. District Court Judge K. Michael Moore in Miami, who echoed environmental groups in calling the national flood insurance program a threat to endangered species.

The ruling doesn’t amount to a blanket ban on flood insurance in the Keys. But it orders the Federal Emergency Management Agency (FEMA) to stop issuing flood policies in “suitable habitat” for threatened or endangered plants or wildlife until it consults with the U.S. Fish and Wildlife Service and develops criteria for assessing development impacts on eight such species in Monroe County.

John Kostyack, who represented three environmental groups that brought the lawsuit – the National Wildlife Federation, Florida Wildlife Federation and Defenders of Wildlife – said the court rejected arguments by the Bush administration that FEMA was legally bound to provide flood coverage and had no authority to exclude selected areas of Monroe County.

“FEMA was saying we don’t even have to talk to Fish and Wildlife about our program, to even think about endangered species,” said Kostyack, executive director of the National Wildlife Federation. “If the appellate court had bought that line of argument, it would have excused not only FEMA from complying with the Endangered Species Act but many other federal agencies.”

The Washington, D.C.-based National Association of Home Builders, which had filed a friend-of-the-court brief, blasted the ruling as overly broad, saying it could drive up building costs and, in the worst cases, leave property owners unable to obtain local building permits and mortgages, or to sell or develop land.

“There is so much wrong with this I don’t even know where to start,” said Duane Desiderio, the association’s vice president of legal affairs.

Desiderio said the decision conflicted with lower court rulings elsewhere but agreed it could have ripple effects, starting in the 11th Circuit, comprised of Alabama, Georgia and Florida.

“What world are we living in where the court is saying that endangered species concerns trump all other kinds of legislation,” he said. “Congress never intended development to stop because of endangered species.”

Kostyack said the intention wasn’t to stop development but to end what environmentalists call a federal subsidy that encourages construction in areas critical to the survival of federally protected species.

Previous reports produced by the Fish & Wildlife Service showed that “any habitat loss” would permanently reduce populations of Key deer, Lower Keys marsh rabbit, Key Largo wood rat and cotton mouse, the Stock island tree snail, the silver rice rat, Key tree-cactus and Schaus’ swallowtail butterfly.

Butch Kinerney, a spokesman for FEMA in Washington, said in an e-mail that the agency had not yet reviewed the ruling. The agency previously said the injunction would not affect existing flood policies in Monroe, which numbered more than 33,700 in 2005.

The Keys lawsuit, filed in 1990, is one of the oldest and longest-running of a number of legal challenges to the flood insurance program filed around the country.

Copyright © 2008 The Miami Herald, Curtis Morgan. Distributed by McClatchy-Tribune Information Services.

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