SEPTEMBER 22, 1998

American Littoral Society, Highlands, NJ
Big Pine Key Civic Association, Inc. Big Pine Key, FL
Center for Marine Conservation, Washington, DC
Clean Ocean Action, Highlands, NJ
Florida Keys Citizens Coalition, Key Colony Beach, FL
Florida Keys Environmental Fund, Islamorada, FL
Gulf Restoration Network, New Orleans, LA
Key Deer Protection Alliance, Inc., Big Pine Key, FL
Lake Pontchartrain Basin Foundation, Metairie. LA
Long Island Sierra Club, Huntington Station, NY
ManaSota-88, Inc., Palmetto, FL
New Jersey Environmental Lobby, Trenton, NJ
Ocean Advocates, Dickerson, MD
Natural Resources Defense Council, New York, NY & Washington, DC
North Beach Neighborhood Ass'n, Inc., New Smyrna Beach, FL
North Carolina Coastal Federation, Newport, NC
Reef Relief, Key West, FL
Sea Turtle Survival League, Caribbean Conservation Corporation, Gainesville, FL
Sierra Club National Marine Wildlife and Habitat Committee
Sierra Club, Midwest, Madison WI
South Carolina Coastal Conservation League, Charleston, SC
Upper Keys Citizens Association, Key Largo, FL
Volusia-Flagler Environmental Action Committee, Inc., New Smyrna Beach, FL

Good morning. My name is Jacqueline Savitz and I am the Executive Director of the Coast Alliance, a national environmental coalition that works to protect the resources of the nation's four coasts: Atlantic, Pacific, Great Lakes, and Gulf of Mexico. I greatly appreciate the opportunity to offer testimony regarding S. 2470, a bill to delete a barrier island from the Coastal Barrier Resources System (CBRS). I am speaking today on behalf of the Coast Alliance and twenty-three local and national conservation and citizen organizations.

The Coast Alliance has a long track record with the CBRS. We resolutely supported its creation in the 1980's and worked hard to ensure its expansion in 1990. More recently we have worked to educate the public about the value of the Coastal Barrier Resources System (CBRS) and have won a law suit preventing the U.S. Fish and Wildlife Service from making illegal changes to the CBRS maps. I am here today to oppose S. 2470 and discuss why the passage of this bill would undermine the integrity of the CBRS.

In 1982, Congress decided that taxpayers should not subsidize private development of undeveloped barrier islands. The ultimate question raised by this bill is: Whether Pumpkin Key was inappropriately included in the CBRS?

The Coast Alliance and the twenty-three groups that we represent today argue that: (1) Pumpkin Key was rightly included in the CBRS in 1990; (2) its exclusion from the CBRS runs counter to Congressional intent, putting human life and property at risk; and (3) the removal of Pumpkin Key undermines the integrity of the CBRS itself. For these reasons, which are explained in more detail below, we strongly recommend an unfavorable Committee report on S. 2470.

Besides the many legal arguments for including the island, any lay person could merely look at a photo of it and determine that Pumpkin Key is not developed. Common sense and the application of statutory criteria should move Congress to the obvious truth that this bill is not a valid technical correction.


The Law

The Coastal Barrier Resources Act of 1982 (CBRA), 16 U.S.C. Section 3501 et seq. (1994) (Pub. L. 97-348), established the Coastal Barrier Resources System in order to achieve three goals: to minimize the loss of human life by discouraging development in high-hazard areas, to protect fragile natural resources along the coast, and to reduce wasteful federal expenditures. Undeveloped coastal barriers included in the CBRS are prohibited from receiving federal subsidies for new, private construction. The CBRS does not prevent development from occurring, it prevents the distribution of federal funds, such as federal flood insurance, for construction. The developer is free to obtain private insurance for new development inside the System.

In 1990, Congress passed the Coastal Barrier Improvements Act (CBIA) as an amendment to the CBRA. The CBIA added Pumpkin Key (unit FL-35), among other undeveloped parcels to the CBRS. Section 3503 of the statute deemed "undeveloped coastal barrier" to mean:

(A) a depositional geologic feature (such as a bay barrier, tombolo, barrier spit, or barrier island) that - (i) is subject to wave, tidal, and wind energies, and (ii) protects landward aquatic habitats from direct wave attack; and (B) all associated aquatic habitats including the adjacent wetlands, marshes, estuaries, inlets, and nearshore waters; but only if such features and associated habitats contain few manmade structures and these structures, and man's activities on such features and within such habitats, do not significantly impede geomorphic and ecological process.

Under the CBRA, the United States Fish and Wildlife Service (F&WS) is authorized to consider, and make recommendations as to whether parcels of property should be considered undeveloped, and therefore included in the CBRS. To this end, the F&WS may consider whether there are fewer than one structure per five acres of fastland. 50 Fed. Reg. 8700 (March 4, 1895). The Secretary of Interior defined "structure" to mean a legally authorized building larger than 200 square feet in area, regardless of the number or size of housing units it contains. H. R. Rep. No. 101-657(I), p.6. See also 44 CFR 71 (Oct. 1, 1996). The F&WS also currently considers whether there was a full complement of infrastructure on the parcel prior to its inclusion in the System. According to the F&WS, a full complement of infrastructure includes electric lines, water lines, sewer pipes/septic systems and paved roads.

Florida Keys Environment

In 1988, the United States Department of the Interior described the natural environments of the Florida Keys in its "Final Supplemental Legislative Environmental Impact Statement on the Proposed Changes to the Coastal Barrier Resources System." At that time, Interior made the following observations (pages III-3 - III-6):

The Florida Keys are a narrow, elongated chain of 97 low-lying islands extending in an arc from south and west of Miami to the Dry Tortugas about 235 miles away.

The shallow Florida Bay, filled with carbonate mudflats, seagrass beds, and small mangrove islands, separates the Keys from the south Florida mainland. Fringing mangroves typically front the Keys where beaches are absent.

[T]he Keys . . . function as coastal barriers[,]. . . are subject to wind, wave, and tidal energies and to severe flooding and damage by hurricanes, and protect landward aquatic habitats.

The abundant coral reefs and seagrass beds in the Florida Keys support a great variety of recreationally and commercially important shellfish resources. Among these are spiny lobsters, stone crabs, and pink shrimp. These habitats also support large numbers of fish.... Many of the fish, particularly members of the snapper and grouper families, provide important recreational and commercial fisheries.

[M]angrove communities along the keys . . . are productive ecosystems which support a high diversity of fish, birds, and other wildlife. The mangrove food web, based largely on leaf detritus, also supports nearshore fisheries.

Upland vegetation is found on some keys where elevations are sufficient. On the northern keys and Big Pine Key, hardwood hammocks, unique assemblages of tropical and semitropical trees and shrubs, are found.

Major storms have assaulted the Keys on many occasions and their impacts are well documented. The most dramatic of these was a hurricane that hit the Keys in 1935. This hurricane was one of the most violent in U.S. history .... That hurricane destroyed virtually all human-made structures in the Matecumbe area ... and killed 400 people.... The level topography of the Keys makes human-made structures on them as vulnerable to destruction by hurricanes as those on the lowest profile, mostly wash over prone sandy coastal barriers.

Hurricane landfall frequencies are very high in the Keys (Figure 3 [attached]). The mean annual offshore wave energy, however, is the lowest of any sector along the United States' coast. This combination of generally peaceful waters with occasional hurricanes carries great potential danger because the human inhabitants_many of whom have not resided in the Keys for long_and the visitors are not generally prepared for the potential devastation of storm hazards there.

In 1988, the Department of Interior released its "Report to Congress: Coastal Barrier Resources System, with Recommendations," as required by Section 10 of the CBRA. In Volume I, page 55 of this document, Interior found that:

A number of birds with special status are found in the Florida Keys. These include Kirtland's warbler, white-crowned pigeon, great white heron, magnificent frigatebird, roseate tern, brown pelican, bald eagle, and peregrine falcon. Numerous wading birds, including the great blue heron, snowy egret, and roseate spoonbill, and shorebirds such as the snowy plover, American oystercatcher, sooty tern, and laughing gull are also present. The Keys also serve as temporary stopping sites for many migrating land birds that arrive in early spring and fall each year. While land bird distribution in the Keys is limited by availability of habitat, the region is a virtual haven for coastal aerial feeding birds such as terns and gulls because of the abundant marine life and relatively shallow waters.... The only known nesting sites for the magnificent frigatebirds, sooty terns, and brown noddies in the continental United States are located in the Keys.


Pumpkin Key is a barrier island near Key Largo, Florida. Pumpkin Key is clearly undeveloped. Congress was right to include Pumpkin Key in the System in 1990 and it is the decision of the Congress, not the F&WS to determine whether a parcel should be remain within the CBRS.

Development on barrier islands is risky because of their vulnerability to storms. In fact, such development leads to property damage and potential loss of life. S. 2470 asks Congress to reverse its prior decision and call this island "developed" and delete it from the CBRS, thereby allowing it to receive some of the fifty federal development subsidies available.

If Congress chooses to delete Pumpkin Key from the System, it will encourage risky development on this barrier island. S. 2470 would shift the risk of development from the developer to the American taxpayer. If the owner of Pumpkin Key wishes to develop a hazard prone island, he is free to do so. He is also free to get private insurance for the project. However, the eleven sites that will become homes will be damaged in the next major hurricane, and if Uncle Sam subsidizes this development, the owners will seek payment from the American taxpayer. Once damages are repaired, there will be another storm, it is just a matter of when. Remarkably in recent correspondence, the Fish and Wildlife Service has changed its position and opted to call this island developed. We feel that this policy decision: (1) is inconsistent with the statutory definition, (2) runs counter to the intent of the law, (3) is a stretch of existing F&WS criteria, (4) and undermines the integrity of the System. We urge this Committee to exercise its independent judgment and reject S. 2470.

Specifically, the Coast Alliance and citizen groups across Florida and the nation support Pumpkin Key's continued inclusion in the System for the following reasons:

(1) Pumpkin Key was rightly included in the System as it was clearly undeveloped in 1990.

In 1990, Pumpkin Key satisfied the statutory definition of an undeveloped barrier island.

The CBIA defined "undeveloped coastal barrier" to include barrier islands that are subject to wave, tidal, and wind energies_if these barriers contain few manmade structures and if the natural ecological processes are not significantly impeded. Here, the F&WS has documented that the Florida Keys are subject to wave, tidal, and wind energies and that there are only three houses on this small barrier island. Furthermore, with the exception of the few structures on the 25.56 acre island, the natural ecological processes are not significantly impeded.

In 1990, the island met the F& WS test that no more than one structure per five acres may be present in order to be classifed as an undeveloped CARS unit, and it still does today.

According to the F&WS, there are only three valid "structures" on Pumpkin Key. Additionally, there are more than 3600 fastland acres in Unit FL-35. There is no evidence that the unit exceeds the "more than one structure per five acres" criterion.

The island does not have sufficient infrastructure that would define it as "developed " and would keep it out of the CBRS.

Pumpkin Key does not meet the F&WS "full complement of infrastructure" criterion because it does not have paved roads. The F&WS stated in an August 11, 1997, letter that "[a]t the time of its inclusion in the System, based on the best information available at the time, Pumpkin Key was correctly mapped as an undeveloped coastal barrier." F&WS went on to state that the island's lack of paved roads kept Pumpkin Key from meeting the full complement of infrastructure criterion. These criteria should not be diluted or compromised. Now, however, the F&WS is willing to consider the island developed despite the fact that there are no paved roads. This constitutes a dilution of the criteria for exclusion. Allowing the removal of a barrier island because it has a golf cart path and a subaqueous utility line runs counter to Congressional intent to preserve undeveloped coastal barriers.

The infrastructure criterion was designed to allow exclusion in cases where construction was ongoing. However, in this case, there was no ongoing development at the time of inclusion in the System. While the developers may have made a financial investment, they are still free to capitalize on that venture. Additionally, in the Feb. 2O, 1996 letter from F&WS to Sen. Graham, the Service said, "Intensive capitalization is a consideration only when geomorphic ecological processes are altered to the extent that the long-term perpetuation of the coastal barrier is threatened. The development and potential development of Pumpkin Key at the time of its inclusion in the System did not significantly impede geomorphic and ecological processes; therefore intensive capitalization was not a consideration for excluding Pumpkin key from the System."

Now, the F&WS is choosing to create a policy exemption for Pumpkin Key by essentially waiving the paved roads guideline from its "full complement of infrastructure" criterion. If Congress approves this, it will set a dangerous precedent and undermine the System's integrity. The bottom line is that the plain language of the statute controls and overrides the inconsistent application of F&WS criteria. Therefore, Congress should apply its statutory standard of "undeveloped coastal barriers" and keep Pumpkin Key within the System.

"Plans" to develop an island do not trigger removal from the CBRS.

Developers argue that they had plans to develop Pumpkin Key prior to its inclusion in the CBRS. However, plans do not equal development. In fact, CBRS criteria reject the concept of phased development and the F&WS stated that, "[p]reparing plans to develop or acquiring permits to build do not constitute development as defined by the delineation and mapping criteria." Feb. 20, 1996 letter to Sen. Graham. The undeveloped barrier island was properly included in the CBRS. The developer is still free to build on this property, but at its own risk, not the taxpayers'.

Information that Pumpkin Key was being added to the CBRS was available to all interested parties for review and action at the time of inclusion.

Lack of knowledge of inclusion is not a criterion for removal and the burden was on the developer to make an argument for exclusion at that time. Pumpkin Key representatives did not oppose its inclusion within the CBRS, despite opportunity to do so. The F&WS notified Monroe County about Pumpkin Key's inclusion in the CBRS, and received comments regarding He 1990 Coastal Barrier Improvements Act from individuals and organizations throughout the Florida Keys, but none regarding Pumpkin Key specifically. Pumpkin Key's developers should have known about its inclusion.

(2) Exclusion of Pumpkin Key from the fiscally prudent and environmentally sound Coastal Barrier Resources System runs counter to Congressional intent.

Removing this unit from the CBRS would be a taxpayer rip-off, allowing the developers access to federal subsidies for their risky venture.

Coastal areas not in the CBRS cost the federal taxpayer roughly $82,000 per developed acre. Some of these costs come from the National Flood Insurance Program (NFIP). The NFIP is one of the largest domestic liabilities behind the Social Security System and it has required major taxpayer bail-outs in the past. Extension of additional federal flood insurance for high risk development farther impacts the fund, places an unfair burden on taxpayers, destroys critical habitat, and invites human tragedy.

Encouraging development on Pumpkin Key puts Americans in harm's way and does so at the expense of the U.S. Treasury.

One of the System's three objectives is the protection of human lives. Therefore, the System was designed with human safety clearly in mind. Since there are no roads or automobile access to the island, fleeing it in case of a hurricane would be perilous and extremely difficult. Removal of Pumpkin Key from the CBRS would create an exception for isolated coastal barriers, a precedent that contradicts Congressional intent to minimize the loss of human life by discouraging development in high-hazard areas. Government support of such projects would convey a false sense of security and make the federal government vulnerable to repetitive pay-outs for flood and storm-related damages. It would also encourage future development on this and other barrier islands.

(3) Removal of Pumpkin Key undermines the integrity of the Coastal Barrier Resources System.

The Coast Alliance and citizen groups across Florida and the nation are gravely concerned about the policy implications of creating an exemption from the existing criteria for Pumpkin Key's developers.

Federal flood insurance is a major federal subsidy, which encourages coastal development. In many places such development is effectively contingent upon federal flood insurance. If Congress removes this parcel despite the fact that aerial photos at the time of inclusion clearly showed the lack of development in this unit, other coastal barriers will become easy targets for removal by developers, who would have Uncle Sam subsidize risky development.

Coastal barriers, such as Pumpkin Key, are important to fisheries and wildlife.

Coastal wetlands support more than 75 percent of the nation's commercial fish and shellfish at some point during their life cycles. Barrier areas also provide critical habitat for a variety of wildlife--including 18 federally endangered species. Development usurps important habitats for threatened and endangered sea turtles, shore birds, and other wildlife and can destroy food sources for coast-dependent species. The federal government should not encourage such destruction.


The Coast Alliance is dedicated to educating the public and reminding Congress of the value of the System and the costs associated with its piecemeal destruction. Despite the Service's recent change in position, it is important to note that in 1996 the F&WS stated that, "Pumpkin Key was included in the System because it met the definition of less than one structure per five acres of fastland for Unit FL-35; it was not intensively capitalized; and its shoreline had not been intensely manipulated. Also, it was not a cluster of development. Therefore, it was correctly placed in the System."

In conclusion, Congress should not remove Pumpkin Key from the System because it satisfies the statutory criteria, and we argue that it satisfies the density and infrastructure criteria for undeveloped coastal barriers. First, there were no paved roads, and the mere existence of a subaqueous utility line does not fulfill the criterion of a "full complement of infrastructure." Furthermore, the argument that a 25.6 acre island, having only three houses in a unit of greater than 3600 acres, is "developed" does not pass the straight face test. Second, the goals of the CBRS--to minimize the loss of human life by discouraging development in high-hazard areas, to protect fragile natural resources along the coast, and to reduce wasteful federal expenditures--should outweigh any political pressure to allow taxpayer giveaways for unwise development. Third, deleting Pumpkin Key from the CBRS would undermine the integrity of the System.

Thank you Mr. Chairman for the opportunity to testify here today.

Examples of Federal Subsidies Available to Property not in the Coastal Barrier Resources System (CBRS)

(Not an exhaustive list)

According to the Department of the Interior federal financial assistance is precluded from CBRS lands, and is defined as "any form of loan, grant, guaranty, insurance, payment, rebate, subsidy or any other form of direct or indirect Federal assistance" 43 CFR Subtitle A, October S. 1983, (as announced in 48 FR 45664.)

Subsidies include but are not limited to:

1) Construction or purchase of any structure, appurtenance, facility or related infrastructure;

2) Construction or purchase of any road, airport, boat landing facility on, or bridge or causeway to any System unit.

3) Assistance for erosion control or other stabilitation of any inlet, shoreline, or inshore area, except in certain emergencies.


Department of Agriculture Loans For Rural Disaster Relief Loans For Water Systems Loans For Wastewater Systems Loans For Commercial Development Loans For Community Services Loans For Subdivision Development

Department of Commerce Grants For Planning And Administering Local Economic Development Programs Grants For The Coastal Energy Improvement Program

Rural Electrification Administration Loans for expanded Electrical Systems

Army Corps to Engineers Construction And Financial Assistance For Beach Erosion Control Construction And Financial Assistance For Hurricane Protection Construction And Financial Assistance For Flood Control Construction And Financial Assistance For New Or Expanded Navigation Projects

Department of Energy Energy Development Programs

Housing and Urban Development Block Grants For Community Development Mortgage Insurance Housing Assistance Rehabilitation Subsidy Programs Urban Development Action Grants

Department of Interior-National Park Service Grants To States For Historic Preservation Survey And Planning Grants To States For Land Acquisition And Development Of Protected Areas Grants To States For Prep. Of State Comprehensive Outdoor Rec. Plans (LWCF)

Department of Transportation Grants For Airport Planning And Development Federal Assistance To States For Highway Construction Capital Improvement And Operating Grants

Environmental Protection Agency Grants For Wastewater Treatment Construction Grants For Water Quality Management Planning

Federal Emergency Management Administration Federal National Insurance Program Disaster Assistance Program

Federal Home Loan Administration Guaranteed Housing Loans

General Services Administration Construction or Reconstruction of Federal Property Exchange or Sale of Federal Property For Development Purposes

Small Business Administration Loans To Small Businesses for Disaster Relief Loans To Small Businesses for Upgrading of Water Treatment Systems Loans To Small Businesses for Other Purposes Disaster Assistance To Homeowners

Veterans Administration Guaranteed Housing Loans From Veterans Administration

For more information, call the Coast Alliance (202) 546-9554