Item O4BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 20, 2012 Division: Growth Mana ement
Bulk Item: Yes _ No X Staff Contact /Phone #: Christine Hurley 289-2517
AGENDA ITEM WORDING: A public hearing to consider an ordinance amending Monroe County Code
Chapter 122 Floodplain Regulations, amending Section 122-2 and Section 122-3and creating Section 122-8,
providing inclusion of criteria contained in the United States Fish and Wildlife Service (USFWS) April 30, 2010
Biological Opinion for FEMA's administration of the National Flood Insurance Program (NFIP), as amended
December 14, 2010 in flood plain development permit determinations through the Permit Referral Process.
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. Growth Management Division staff and
the Monroe County Attorney's Office have worked with FWS and FEMA to develop Ordinance language that
would meet property owners obligations under the Federal Endangered Species Act. On February 16, 2012 the
FWS provided two copies of proposed revisions to the Species Assessment Guides (SAG's) dated 2/12/2012
that they are willing to make to all SAG's. The proposed revisions included provisions that applications that
provided habitat compensation in accordance with Monroe County Land Development Code Chapters 118-2 and
118-8 would not impact the acreage limits in Table 18 of the BO. Four (4) of the species include a maximum
number of residential units that may be issued. The proposed revisions to the SAG's included language that
"pre -determines" that development of parcels located in canal subdivisions and substantially developed
subdivisions would result in a "no affect" determination and would not be required to be assessed through the
Permit Referral Process. These changes to the SAG's substantially reduce the County's potential exposure for
liability for inverse condemnation or takings claims; so that staff can now recommend for adoption
In March, 2012 the Florida Legislature passed House Bill 503 (HB 503) which adopted Chapter 2012-205 Laws
of Florida, effective July 1, 2012, which states: "For any development permit application filed with the county
after July 1, 201Z a county may not require as a condition of processing or issuing a development permit that
an applicant obtain a permit or approval from any state or federal agency unless the agency has issued a final
agency action that denies the federal or state permit before the county action on the local development permit. "
HB 503 was signed by the Governor on May 4, 2012. Therefore Growth Management staff has the draft
Ordinance to amend Chapter 122 in accordance with the RPA's with the restrictions of HB 503 (chapter 2012-
205, Laws of Florida). The advertisement for this Ordinance referenced a new Section 122-10, however other
revisions to the Floodplain Ordinances resulted in re -numbering the proposed section to Section 122-8.
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. On February 16, 2011 the BOCC directed the County Attorney to file an appeal in the matter of
Florida Key Deer, National Wildlife Federation, et. Al. v. FEMA and USFWS. On March 16, 2011, the BOCC
authorized the County Attorney to file a motion for a Stay and to obtain the services of Hogan Lovells to assist
the County in the appeal process.
May 16, 2012 — BOCC continued this item to its June 20, 2012 meeting.
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: INDIRECT COST: BUDGETED: Yes No X
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year
APPROVED BY: County Atty x OMB/Purchasing _ Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
CH. 122-10 Floodplain Regulations
Staff Report
MEMORANDUM
MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT
We strive to be caring, professional and fair
DATE: June 4, 2012
TO: BOARD OF COUNTY COMMISSIONERS
THROUGH: ROMAN GASTESI; COUNTY ADMINISTRATOR
FROM: CHRISTINE HURLEY, AICP; GROWTH MANAGEMENT DIVISION DIRECTOR
Subject: AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS AMENDING CHAPTER 122 FLOODPLAIN
REGULATIONS, CREATING SECTION 122-8 PROVIDING FOR INCLUSION
OF UNITED STATES FEDERAL EMERGENCY MANAGEMENT AGENCY
(FEMA) AND UNITED STATES FISH AND WILDLIFE SERVICE (FWS)
REQUIREMENTS IN PERMIT REFERRAL PROCESS IMPLEMENTATION
AND DETERMINATIONS; PROVIDING FOR SEVERABILITY; PROVIDING
FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR
TRANSMITTAL TO THE STATE LAND PLANNING AGENCY AND THE
SECRETARY OF STATE; PROVIDING FOR CODIFICATION; PROVIDING
FOR AN EFFECTIVE DATE.
Meeting: June 20, 2012 (Continued from May 16, 2012)
2 I REQUEST
3
4 The Planning & Environmental Resources Department is proposing amendments to the text
5 of the Monroe County Floodplain Ordinance by amending § 122-2 and§ 122-3 and adding
6 § 122-8 of the Monroe County Code (MCC) in order to revise the regulations pertaining to
7 the review of applications for floodplain development permits to address the April 2010 U.S.
8 Fish & Wildlife Services Biological Opinion and the Reasonable & Prudent Alternatives
9 (RPA's) related to the Federal Emergency Management Agency's (FEMA) administration of
10 the National Flood Insurance Program in Monroe County. Specifically, the proposed
11 amendments provide for a Permit Referral Process for review of development permits that
12 may affect Federally listed species.
13
14
15
16
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Staff Report
1 II RELEVANT PRIOR COUNTY ACTIONS AND BACKGROUND INFORMATION:
2
3 In 1997 the Service completed a Biological Opinion (BO) for the effects of the NFIP on
4 Federally protected species in the Florida Keys. The 1997 BO found the NFIP jeopardized
5 nine species in the Keys. In 2003 the Service re -initiated consultation and amended the 1997
6 BO and concluded that the effect of the NFIP would result in jeopardy on eight of 10 species
7 evaluated in the BO. Then, a second amended complaint in 2003 was filed by the plaintiffs
8 against FEMA and the Service pursuant to the Endangered Species Act and the
9 Administrative Procedures Act. The plaintiffs won a Summary Judgment and on March 29,
10 2005 the United States District Court, Southern District of Florida (Court) issued an Order
11 ruling the Service and FEMA violated the Endangered Species Act and the Administrative
12 Procedures Act.
13
14 On September 9, 2005, the Court granted the plaintiffs' motion for an injunction against
15 FEMA issuing flood insurance on any new residential or commercial developments in
16 suitable habitats of federally listed species in the Keys. The Court also ordered the Service to
17 submit a new BO by August 9, 2006. The Service issued a new BO on August 8, 2006. On
18 April 1, 2008, FEMA and the Service filed an appeal with the United States Court of Appeals
19 for the Eleventh Circuit arguing that section 7(a)(2) of the Act did not apply to FEMA's
20 provision of flood insurance and that FEMA had fully complied with the Court's March 29,
21 2005, ruling. On February 26, 2009, the Court ordered the Service to submit a new BO by
22 March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this
23 deadline. On April 1, 2009, the United States Court of Appeals for the Eleventh Circuit
24 affirmed the judgment of the District Court. On April 30, 2010, the Service published the
25 revised BO for FEMA's administration of the NFIP in Monroe County.
26
27 The BO contains Reasonable and Prudent Alternatives (RDA's) that require Monroe County
28 and other participating communities in the Florida Keys to revise their Flood Damage
29 Prevention Ordinance(s) to reference and use an updated real estate list (referenced in RPA
30 paragraph 1) within 120 days of acceptance of this BO by the Court. On December 3, 2010
31 the Court filed a Settlement Agreement between the Plaintiffs and the Federal Defendants in
32 which the Federal Defendants agreed to notify the Court and the parties when Monroe
33 County and the other "participating communities" in the Florida Keys have: 1) revised their
34 Flood Damage Prevention Ordinance(s); and 2) implemented procedures to reference and use
35 the updated real estate list and Species Focus Area Maps (referenced in reasonable and
36 prudent alternative ("RPA") paragraph 1) in compliance with paragraphs 2, 3, 4, and 5 of the
37 RPA.
38
39 On November 12, 2010 the Board of County Commissioners held a public workshop to
40 discuss the RPA's and directed the County Attorney to intervene in Court and directed the
41 County Administrator to task the lobbyists with this issue.
42
43 On February 16, 2011 the BOCC directed the County Attorney to file an appeal in the matter
44 of Florida Key Deer, National Wildlife Federation, et. Al. v. FEMA and USFWS.
45
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CH. 122-10 Floodplain Regulations
Staff Report
1 On March 16, 2011, the BOCC authorized the County Attorney to file a motion for a Stay
2 and to obtain the services of Hogan Lovells to assist the County in the appeal process.
3
4 On December 2, 2011, FEMA notified Monroe County that if the County decides not to
5 implement the RPA's then Monroe County will be placed on probation.
6
7 On February 16, 2012 the FWS provided proposed revisions to the Species Assessment
8 Guides. The proposed revisions included clarification that applications that provided habitat
9 compensation in accordance with Monroe County Land Development Code Chapters 118-2
10 and 118-8 would not impact the acreage limits in Table 18 of the BO. The proposed
11 revisions to the SAG's included language that "pre -determines" that development of parcels
12 located in canal subdivisions and substantially developed subdivisions would result in a "no
13 affect" determination and would not be required to be assessed through the Permit Referral
14 Process.
15
16 In March, 2012 the Florida Legislature adopted Chapter 2012-205 Laws of Florida, effective
17 July 1, 2012, which states:
18
19 "For any development permit application filed with the county after July 1, 2012, a
20 county may not require as a condition of processing or issuing a development permit that
21 an applicant obtain a permit or approval from any state or federal agency unless the
22 agency has issued a final agency action that denies the federal or state permit before the
23 county action on the local development permit. Issuance of a development permit by a
24 county does not in any way create any rights on the part of the applicant to obtain a
25 permit from a state or federal agency and does not create any liability on the part of the
26 county for issuance of the permit if the applicant fails to obtain requisite approvals or
27 fulfill the obligations imposed by a state or federal agency or undertakes actions that
28 result in a violation of state or federal law. A county may attach such a disclaimer to the
29 issuance of a development permit and may include a permit condition that all other
30 applicable state or federal permits be obtained before commencement of the
31 development. This section does not prohibit a county from providing information to an
32 applicant regarding what other state or federal permits may apply. "
33
34 The County Attorney, outside counsel, and the Growth Management Director have proposed
35 an ordinance with alternative language to meet the RPAs, which is consistent with Federal
36 law, addresses Chapter 2012-205, Laws of Florida, and adequately protects the County
37 taxpayers against accepting that additional liability.
38
39 III REVIEW
40
41 The Growth Management Division, the County Attorney and the County's outside Counsel
42 have been working closely with FEMA and the USFWS following the BOCC meeting of
43 March 16, 2011 to reach agreement on the implementation of the RPA's and the language for
44 the required Ordinance.
45
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CH. 122-10 Floodplain Regulations
Staff Report
1 FEMA provided a draft of items for adoption to Monroe County on June 15, 2011 and
2 provided further recommendations via e-mail on October 3, 2011. These Ordinance
3 recommendations were developed by FEMA to meet the requirements of the RPA's and
4 would require the County to make permit determinations based on the Species Assessment
5 Guides (SAGs), and in the event the impact limits of Table 18 were exceeded, ultimately
6 deny a building permit. The FWS provided draft SAG's that require Monroe County to
7 review each floodplain development permit application to determine if the parcel was on the
8 list of RE #s that are within the species focus areas or buffers (Attachment C), and to confirm
9 this by reviewing the Species Focus Area Maps provided by FEMA (Attachment D). If the
10 parcel is on the list, then Monroe County staff evaluates the application in accordance with
11 the SAGS and makes the permit determination. In the event that the proposed development
12 results in a "may affect" determination, then the applicant is required to consult directly with
13 the USFWS, otherwise, Monroe County is authorized by the RPA's to issue the building
14 permit. As a result of 2012-205 Laws of Florida, the process has been modified in the event
15 of a "may affect" determination, Monroe County will issue the building permit with a
16 condition that the permittee consult with the Service and receive approval from them prior to
17 the County issuing a Notice to Proceed.
18
19 On February 16, 2012 the USFWS provided draft revisions to the Species Assessment Guide
20 (SAG) for the Lower Keys marsh rabbit that would allow the County to pre -determine that
21 the development of certain parcels within canal subdivisions and substantially developed
22 subdivisions would "Not Likely Adversely Affect" (NLAA) the lower Keys marsh rabbit. In
23 addition, the USFWS stated that a similar revision would be made to the SAG's for the Key
24 Largo cotton mouse, the Key Largo wood rat and the silver rice rat. These provisions
25 substantially reduce the County's potential exposure for liability for inverse condemnation or
26 takings claims.
27
28 The FWS correspondence (and revised SAG's) also included clarification of the habitat
29 compensation criteria. In short, the revised SAG's acknowledge that habitat compensation
30 provided to meet Monroe County Land Development Code requirements (Chapter 118-6 and
31 118-8) also meets the requirements of the FWS. Further, the revised SAG's state that the
32 Service considers the compensation as like -for -like replacement of habitat and the loss is not
33 a deduction from the not -to -exceed habitat acreage losses referenced in the BO (Table 18).
34
35 On May 20, 2012, FWS provided revised versions of the Species Assessment Guides
36 (Attachment E). These revisions include clarification on development of parcels that contain
37 and/or are adjacent to contiguous hammock greater than 1 acre in size. Development of these
38 parcels results in a "may affect" determination and further coordination with the Service will
39 be necessary. Impacts to native habitat for the affected species will be subtracted from the
40 Take authorized in the BO.
41
42 The FWS provided GIS analysis of private, vacant lands occurring within suitable habitat of
43 1 acre or more by species to determine the worst case scenario for impacts to the covered
44 species (Attachment F). This information is critical to the determination as to whether
45 Monroe County may eventually have to deny building permits based on the mandated
46 provisions of the BO, RPA's and SAG's.
Page 4 of 19
CH. 122-10 Floodplain Regulations
Staff Report
2 In this analysis, FWS excluded publicly owned lands and areas of habitat less than one acre.
3 This analysis provided the following information:
4
U.S. Fish and Wildlife Service Summary of Vacant, Privately Owned Parcels
containing or adjacent to contiguous habitat of 1 acre or more
Species
Take Issued -
Acres of Habitat
TOTAL
# Parcels in
suitable habitat
Acres of Suitable
Habitat
Cotton Mouse
217.8
809
256
Eastern Indigo
Snake
772.5
2288
2921
Key Deer
290.6
953
1823
Marsh Rabbit
83.6
859
1151
Schaus Swallowtail
217.2
809
257
Silver Rice Rat
172.3
1098
1997
Silver Rice Rat CH
36.5
98
432
Tree Cactus
249,5
1186
789
Tree Snail
249.5
1186
789
Wood rat
217.8
809
256
5
6 The FWS also analyzed the potential loss of suitable habitat based on Monroe County Land
7 Development Codes related to land clearing. Specifically, FWS calculated the potential loss
8 of suitable habitat based on 40% clearing of native habitat on parcels in Tier 2, 3 and 3A.
9 For impacts on parcels in Tier I, FWS incorporated the ROGO limits for Tier I allocations.
10 Using these assumptions, FWS calculated the following impacts over the 13 year period
11 (2010 - 2013) of the BO. Therefore, the following data does not account for the actual
12 adoption date of the proposed Ordinance.
13
TAKE (Table EA-16, BiOp pg
234)
MAX Tier40%
develop
ment*
Tier
2
40%
Tier
3
0
SUM
Difference
(Take -
Sum)
Cotton Mouse
217.8
2.8
0.0
6.0
18.0
26.8
191.0
Eastern Indigo Snake
772.5
29.4
1.2
44.4
18.8
93.8
678.7
Key Deer
290.6
16.1
1.2
4.4
0.4
22.1
268.5
Marsh Rabbit
83.6
11.8
0.8
9.6
0.0
22.2
61.4
Schaus Swallowtail
217.2
2.8
0.0
6.0
18.0
26.8
190.4
Silver Rice Rat
172.3
16.5
1.2
12.0
0.8
30.5
141.8
Silver Rice Rat CH
36.5
34.7
0.0
0.0
0.0
3.7
1.8
Tree Cactus
2.5
14.7
0.0
7.2
18.0
39.9
209.6
Tree Snail
2.5
14.7
0.0
7.2
18.0
3.9
209.6
Woodrat
217.8
2.8
0.0
6.0
18.0
26.8
191.0
Page 5of19
CH. 122-10 Floodplain Regulations
Staff Report
1 In addition to the FWS analysis outlined above, Monroe County Planning and Environmental
2 Resources staff analyzed the potential habitat impacts associated with development based on
3 the number of parcels in suitable habitat (as provided by FWS) compared to proposed
4 Monroe County Land Development Code revisions that have been transmitted and are
5 expected to be adopted in September 2012. Specifically, we analyzed the potential impacts
6 that would result from every parcel in suitable habitat with the assumption that each permit
7 would result in the loss of 7,500 square feet of native habitat — the maximum clearing limit
8 for native upland habitat allowed the proposed Code revisions. This analysis yielded the
9 following:
10
Summary of Vacant, Privately Owned Parcels in suitable habitat that contain or are
contiguous to native habitat of 1 acre or greater in size.
Species
Take
Issued -
Acres of
Habitat
TOTAL
# Parcels
in suitable
habitat
Acres
of
Suitable
Habitat
Max Potential
Impact***
Cotton Mouse
217.8
809
256
139.29
Eastern Indigo Snake
772.5
2288
2921
393.94
Key Deer
290.6
953
1823
164.08
Marsh Rabbit
83.6
859
1151
147.90
Schaus Swallowtail
217.2
809
257
139.29
Silver Rice Rat
172.3
1098
1997
189.05
Silver Rice Rat CH
36.5
98
432
16.87
Tree Cactus
249.5
1186
789
204.20
Tree Snail
249.5
1186
789
204.20
Woodrat
217.8
809
256
139.29
*** Maximum potential impact assumes each permit results in the clearing of 7500
square feet of native habitat
11
12 As the table above shows, under proposed land development codes, the potential for
13 exceeding the allowable take for each species is quite low with the use of the revised SAG's.
14 Only impacts to Lower Keys Marsh Rabbit habitat and silver rice rat habitat have the
15 potential for exceeding the take limits under the scenario used for analysis, however it should
16 be pointed out that the majority of marsh rabbit and rice rat habitat consists of wetland
17 communities that have a 100% open space requirement under current County codes and
18 therefore the impacts reflected in the table likely overestimate the actual potential impacts.
19 In addition, the above analyses include parcel and acreage data for all Tier categories and the
20 majority of marsh rabbit habitat and silver rice rat habitat is in Tier I.
21
22
23
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CH. 122-10 Floodplain Regulations
Staff Report
An analysis of private, vacant parcels excluding Tier I parcels indicates that the probability
of exceeding the issued take is very low, as detailed in the following Table:
FWS Summary Analysis of privately owned, vacant parcels within
SFAMs that contain or are contiguous to native habitat of 1 acre or more
in size(excluding Tier I pazcels
Species
Take Issued -
Acres of
Habitat
TOTAL NON -Tier 1
# Parcels
Acres
Cotton Mouse
217.8
460
129
Eastern Indigo Snake
772.5
862
238
Key Deer
290.6
76
16
Marsh Rabbit
83.6
118
26
Schaus Swallowtail
217.2
460
130
Silver Rice Rat
172.3
170
36
Silver Rice Rat CH
36.5
1
0
Tree Cactus
249.5
491
133
Tree Snail
249.5
491
133
Woodrat
217.8
460
129
Combined Habitat
n/a
862
238
Due to the Florida Legislature adopted Chapter 2012-205 Laws of Florida, Monroe County
will be precluded from requiring building permit applicants to consult with the USFWS prior
to issuance of a building permit. Instead, if an applicant for a Monroe County building
permit meets all applicable County codes but proposes development activities that result in a
"May Affect" determination under Permit Review Process, the County will issue the building
permit with a condition that the applicant consult with the USFWS prior construction.
Further, the County will not issue a Notice to Proceed for the project until such time as the
applicant receives approval from the USFWS.
Based on the above, staff is recopmmending the following amendments to Section 122
Floodplain Management:
Section 1. Section 122-2 of the Monroe County Land Development Code shall be
amended as follows: (additions are underlined; deletions are stFisl£ea *&etigh)
Sec.122-2. General provisions.
(a) Applicability. Except as provided for the elevated portion of a nonconforming
residential structure by section 1224(a) (10), no structure or manufactured home
hereafter shall be located, extended, converted or structurally altered, and no
development shall occur, without full compliance with the terms of this chapter in
addition to other applicable regulations, including but not limited to, 44 CFR
60.3 a 2 .
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CH. 122-10 Floodplain Regulations
Staff Report
(b) Basis for Establishing Special Flood Hazard Maps, Species
Focus Area Maps SFAMs with Species Focus Area Buffers and Species Real Estate
(RE) List, and Species Assessment Guides (SAGS).
1_The areas of special flood hazard identified by the Federal Emergency
Management Agency (FEMA) in its October 17, 1989 Flood Insurance Study and
Wave Height Analysis for Monroe County, Florida, Unincorporated Areas, as
amended February 18, 2005 with the most current official maps approved by FEMA,
with accompanying supporting data, and any revisions thereof, are adopted by
reference and declared to be a part of this chapter, and shall be kept on file, available
to the public, in the offices of the county Building Department. Letter of Map
Amendments, Letter of Map Revisions, Letter of Map Revision Based on Fill, and
Conditional Letter of Map Revisions approved by FEMA are acceptable for
implementation of this regulation.
2. Species Focus Area (SFAMs) with Species Focus Area Buffers and Species
Real Estate (RE) List. FEMA and FWS have provided the Species Focus Area Maps
(SFAMs) mailed to Monroe County and dated April 30, 2011, and a listingof f real
estate numbers of parcels (RE list) emailed to Monroe County and dated November
18, 2011, that are within the SFAMs and that have been identified by FWS. The
SFAMs and the RE List that are within the SFAMs identified by the FWS in
accordance with the Biological Opinion, dated April 30, 2010, as amended December
14, 2010, are hereby declared to be a part of this ordinance. The SFAMs and RE list
are on file at the Monroe County Clerk's office and the Monroe County Growth
Management Division Office.
3. Species Assessment Guides (SAGS). FEMA and FWS have provided the
Species Assessment Guides (SAGs) mailed to Monroe County and dated MU 20,
2012. These SAGs are declared to be a part of this ordinance. The SAGs are on file
at the Monroe County Clerk's office and the Monroe County Growth Management
Division Office.
(c) Rules for interpreting flood hazard issues. The boundaries of the flood hazard
areas shown on the official flood insurance rate maps may be determined by scaling
distances. Required interpretations of those maps for precise locations of such
boundaries shall be made by the floodplain administrator, in consultation with the
building official. In interpreting other provisions of this chapter, the building official
shall be guided by the current edition of FEMA's 44 CFR, and FEMA's interpretive
letters, policy statements and technical bulletins as adopted by resolution from time to
time by the Board of County Commissioners . Additionally, the building official shall
also obtain, review and reasonably use any base flood elevation and floodway data
available from a federal, state or other source, as criteria for requiring that new
construction, substantial improvements, and other developments meet the criteria
required in the appropriate flood zone.
Section 2. Sec. 122-3 of the Monroe County Land Development Code shall be
amended as follows:
Sec.122-3. — Permit requirements.
Page 8of19
CH. 122-10 Floodplain Regulations
Staff Report
1
2 (a) The following words, terms and phrases, when used in this chapter, shall have the
3 meanings ascribed to them in this section, except where the context clearly indicates a
4 different meaning:
5
6 Alteration means any change or modification in construction type, materials, or
7 occupancy.
8
9 Base flood means the flood having a one percent chance of being equaled or exceeded
10 in any given year.
11
12 Basement means any area of the building having its floor subgrade (below ground
13 level) on all sides.
14
15 Development means any manmade change to improved or unimproved real estate,
16 including, but not limited to, buildings or other structures, clearing, mining, dredging,
17 filling, grading, paving, excavation or drilling operations or storage of equipment of
18 or materials.
19
20 Elevated building means a nonbasement building that has its lowest elevated floor
21 raised above ground level by foundation walls, shear walls, posts, piers, pilings, or
22 columns.
23
24 Enclosure means that portion of an elevated building below the lowest elevated floor
25 that is either partially or fully shut in by rigid walls and used solely for limited
26 storage, parking or entryways. Enclosures shall not be constructed, equipped or used
27 for habitational purposes.
28
29 Existing construction means structures for which the start of construction commenced
30 before the effective date of the floodplain management regulations adopted by the
31 community January 1, 1974. Existing construction is also known as pre -FIRM
32 structures. These regulations adopted by the county January 1, 1974 are based on the
33 original maps published by the Federal government June 15, 1973.
34
35 Existing manufactured home park means a manufactured home park or subdivision
36 for which the construction of facilities for servicing the lots, the construction of the
37 streets, and either final site grading or the pouring of concrete pads is completed
38 before the effective date of the floodplain management regulations adopted by the
39 community January 1, 1975, and in which, at the time of application, there are no site
40 built residences or the park or subdivision is limited to manufactured home by this
41 chapter.
42
43 Finishing materials means anything beyond basic wall construction pursuant to the
44 most recent FEMA Technical Bulletin, which is normally associated with habitable
45 space. Finishing materials include, but are not limited to, ceiling mold, trim,
46 baseboards, decorative finish work, wainscoting, and textured woods.
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Staff Report
2 Historic Structure means any structure that is:
3 (a) Listed individually in the National Register of Historic Places (a listing
4 maintained by the Department of Interior) or preliminarily determined by the
5 Secretary of the Interior as meeting the requirements for individual listing on the
6 National Register;
7 (b) Certified or preliminarily determined by the Secretary of the Interior
8 as contributing to the historical significance of a registered historic district or a
9 district preliminarily determined by the Secretary to qualify as a registered historic
10 district;
11 (c) Individually listed on state inventory of historic places in states
12 with historic preservation programs which have been approved by the Secretary of the
13 Interior; or
14 (d) Individually listed on a County inventory of historic places in communities with
15 historic preservation programs that have been certified either:
16 (1) By an approved state program as determined by the Secretary of the Interior, or
17 (2) Directly by the Secretary of the Interior in states without approved programs.
18
19 Illegal Structure or Use means a structure or use that is not a legal structure or legal
20 use as defined in this chapter.
21
22 Legal Structure means a structure that was permitted by the floodplain regulation in
23 effect at the time construction commenced on the structure in its current configuration
24 and received a permit or final inspection or certificate of occupancy for the structure
25 in its current configuration.
26
27 Legal Use means a use that was permitted by the floodplain regulations at the time
28 the use commenced on the property.
29
30 Limited storage means that which is incidental and accessory to the principal use of
31 the structure. For example, if the structure is a residence, storage should be limited to
32 items such as lawn and garden equipment, tires, and other low damage items which
33 will not suffer flood damage or can be conveniently moved to the elevated part of the
34 building. Flood insurance coverage for enclosures below the Base Flood Elevation
35 (BFE) is very limited.
36
37 Lowest Floor means the lowest floor of the lowest enclosed area (including
38 basement). An unfinished or flood resistant enclosure, usable solely for parking of
39 vehicles, building access or storage in an area other than a basement area is not
40 considered a building's lowest floor; provided, that such enclosure is not built so as to
41 render the structure in violation of the applicable non -elevation design requirements
42 of this chapter.
43
44 Manufactured home means a structure, transportable in one or more sections, which is
45 built on a permanent chassis and designed to be used with or without a permanent
46 foundation when connected to the required utilities. The term also includes park
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1 trailer, travel trailers, and similar transportable structures placed on a site for 180
2 consecutive days or longer and intended to be improved property.
3
4 Market value means the county property appraiser's value of the structure plus 20
5 percent. A uniform appraisal report for determination of market value submitted by
6 the applicant may be used if the county building official considers such appraisal
7 consistent with local construction costs. Where appraisal is not accepted because it
8 appears to be inconsistent with local construction costs an applicant may request
9 review by an independent third party appraiser duly authorized by the county. The
10 cost of independent review shall be borne by the applicant. The reviewing appraiser
11 shall determine if the appraisal value reasonably reflects an appropriate value of the
12 structure. The independent appraiser's determination shall be in writing. Professionals
13 preparing appraisal shall be required to possess certifications as state certified
14 residential appraisers for appraising one to four family residential properties and state
15 certified general appraisers for all other properties including commercial and multi-
16 residential
17
18 New construction means those structures for which the start of construction
19 commenced on or after the effective date of the floodplain management regulation
20 adopted by the community that is January 1, 1975. New construction is also known as
21 post -FIRM structures. These regulations adopted by the county January 1, 1974 are
22 based on the original maps published by the Federal government June 15, 1973.
23
24 Nonconforming structure means a below base flood elevation structure or a portion
25 thereof, which was lawfully existing or permitted, and is not fully compliant with the
26 terms of this chapter. A nonconforming structure shall remain subject to the terms of
27 this chapter.
28
29 Nonconforming structure means a structure for which the lowest floor is located
30 below base flood elevation, which was lawfully existing or permitted and is not fully
31 compliant with the terms of this chapter. A nonconforming structure shall remain
32 subject to the provisions of this chapter.
33
34 Notice to proceed means written authorization by the County Growth Management
35 Division to the permittee authorizing_ permitted development to begin.
36
37 Pure manufactured home park means a manufactured home park that at the time of
38 application has no site -built residences or a park or subdivision which is limited to
39 manufactured homes only by this chapter.
40
41 Recreational vehicle means a vehicle that is:
42
43 (1) Built on a single chassis;
44
45 (2) Four hundred square feet or less when measured at the largest horizontal
46 projection;
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2 (3) Designed to be self-propelled or permanently towable by a light duty truck;
3 and
4
5 (4) Designed primarily not for use as a permanent dwelling but as temporary
6 living quarters for recreational, camping, travel or seasonal use.
7
8 Start of construction means (for other than new construction or substantial
9 improvements under the Coastal Barrier Resources Act) the date the building permit
10 was issued, provided the actual start of construction, repair, reconstruction,
11 rehabilitation, addition, placement or other improvement was within 180 days of the
12 permit date. For substantial improvements the actual start of construction means the
13 first alteration of any wall, ceiling, floor, or other structural part of a building whether
14 or not the alteration affects the external dimensions of the building.
15
16 Substantial damage means damage of any origin sustained by a structure whereby the
17 cost of restoring the structure to its before damaged condition would equal or exceed
18 50 percent of the market value of the structure before the damage occurred. All
19 structures that are determined to be substantially damaged are automatically
20 considered to be substantial improvements, regardless of the actual repair work
21 performed. If the cost necessary to fully repair the structure to its before damage
22 condition is equal to or greater than 50% of the structure's market value before
23 damages, then the structure must be elevated (or flood proofed if it is non-residential)
24 to or above the Base Flood Elevation (BFE), and meet other applicable NFIP
25 requirements. Items that should not be counted toward the cost to repair include plans,
26 specifications, survey costs, permit fees, and other items which are separate from or
27 incidental to the repair. Items that should not be counted also includes demolition or
28 emergency repairs and improvements to items outside the building, such as the
29 driveway, septic systems, wells, fencing, landscaping and detached structures.
30
31 The cost of repairs required to remedy health, safety, and sanitary code deficiencies
32 can be deducted from the overall cost of an improvement, but only if:
33
34 1. an appropriate regulatory official such as a building official, fire marshal, or health
35 officer was informed about and knows the extent of the code related deficiencies, and
36
37 2. the deficiency was in existence prior to the damage event or improvement and will
38 not be triggered solely by the fact that the structure is being improved or repaired.
39
40 In addition, for any repair required to meet health, sanitary, and safety codes, only the
41 minimum necessary to assure safe living conditions should be deducted, including
42 those improvements required by Chapter 11, 2012 Florida Accessibility Code. Costs of
43 repairs that are in excess of the minimum necessary for continued occupancy or use
44 will be counted toward the cost of the overall improvement.
45
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1 Substantial improvement means any reconstruction, rehabilitation, addition, or other
2 improvement of a structure, the cost of which equals or exceeds 50 percent of the
3 market value of the structure before the "start of construction" of the improvement.
4 This term includes structures which have incurred "substantial damage, "regardless of
5 the actual repair work performed. The term does not, however, include either:
6
7 1. Any project for improvement of a structure to correct existing violations of state
8 or local health, sanitary, or safety code specifications which have been identified by
9 the local building official and which are the minimum necessary to assure safe living
10 conditions or
11 2. Any alterations of a "historic structure," provided that the alteration will not
12 preclude the structure's continued designation as a "historic structure."
13 Floodplain management requirements for new construction apply to substantial
14 improvements.
15 Supplemental Information for Substantial Improvement
16 The basic types of improvements are rehabilitations or reconstructions that do not
17 increase square footage, and lateral or vertical additions that do increase square
18 footage.
19 Rehabilitation or reconstruction would be a partial or complete "gutting" and
20 replacement of internal workings and may or may not include structural changes. If
21 this action is substantial, i.e., over 50 percent of the structure's market value, it is
22 considered new construction, and the entire building must be elevated to or above the
23 Base Flood Elevation (BFE) (or floodproofed if the building is non-residential).
24 For a lateral addition, if the substantial improvement is to add a room or rooms outside
25 the footprint of the existing building, only the addition is required to be elevated to or
26 above the BFE, i.e.; the existing building does not have to be elevated. Vertical
27 additions would require that the entire structure be elevated to or above the BFE. Even
28 though the improvement itself is entirely above the BFE, it is dependent on the walls
29 and foundation of the existing building for structural support.
30 (b) Except for work specifically exempted under chapter 6, the building official shall
31 require building permits for all proposed construction or other improvements within
32 areas of special flood hazard. In addition to the standard requirements for a building
33 permit, an application for a building permit for construction or improvements within
34 areas of special flood hazard shall contain the information and certifications set forth
35 in a form provided by the Building Official.
36 (c) All building foundations shall rest directly on natural rock, on concrete
37 piling driven to rock or on friction piling (concrete or wood) and shall be anchored to
38 such rock support by holes, 16 inches in minimum diameter, augured into such rock a
39 minimum depth of three feet and reinforced by a minimum of four #5 vertical rods
40 extending up into the piers above a minimum of 18 inches and tied to the vertical steel
Page 13 of 19
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1 of the pier. Wooden pilings shall be locked into 16-inch auger foundations by at least a
2 #5 rebar extending through the piling and three to five inches beyond.
3 (d) The permit holder shall provide a floor elevation after the lowest floor is
4 completed or, in instances where the structure is subject to the regulations applicable
5 to coastal high -hazard areas, after placement of the lowest horizontal structural
6 members of the lowest floor. Floodproofing certification for nonresidential structures
7 in A -Zones shall be provided prior to a certificate of occupancy or prior to final
8 inspection.
9 (e) Within 21 calendar days of establishment of the lowest floor elevation, or upon
10 placement of the lowest horizontal structural members of the lowest floor, whichever
11 is applicable, it shall be the duty of the permit holder to submit to the building official
12 a certification of the elevation of the lowest floor within A zones or the lowest portion
13 of the lowest horizontal structural members of the lowest floor within V zones,
14 whichever is applicable, as built in relation to mean sea level. Such certification shall
15 be prepared by or under the direct supervision of a registered land surveyor or
16 professional engineer and certified by the same. When floodproofing is used for a
17 building within A zones, the certification shall be prepared by or under the direct
18 supervision of a professional engineer or architect and certified by same. Any work
19 done within the 21-day period and prior to submission of the certification shall be at
20 the permit holder's risk. The building official shall review the floor elevation survey
21 data submitted. Deficiencies detected by such review shall be corrected by the permit
22 holder immediately and prior to further progressive work being permitted to proceed.
23 Failure to submit the survey or failure to make the corrections required hereby shall be
24 causes to issue a stop -work order for the project.
25 (f) The degree of flood protection required in this chapter is reasonable for
26 regulatory purposes and is based on scientific and engineering considerations. Larger
27 floods can and will occur on rare occasions. Flood heights may be increased by
28 manmade or natural causes. This chapter does not imply that land outside the areas of
29 special flood hazard or uses permitted within such areas will be free from flooding or
30 flood damages. This chapter shall not create liability on the part of the county or any
31 officer or employee thereof for any flood damages that result from reliance on this
32 chapter or any administrative decision lawfully made thereunder.
33 Section 3. The Monroe County Land Development Code is amended by adding
34 Section 122-8 as follows:
35 Sec. 122-8. Inclusion of United States Federal Emer$encv Management Aeenc
36 (FEMA) and United States Fish and Wildlife Service (FWS) Required Permit
37 Referral Process (PRP) in Final Permit Determinations for Development
38 (a)Purpose and intent. It is the purpose of Section 122-8 to implement regulations
39 that will assure, consistent with the I CP Amendment to the U.S. Constitution,
40 state and County regulations, proper record retention, coordination, and
41 notification of FEMA and FWS regarding_ Permit applications filed with or
42 issued by Monroe County, inclusive of FEMA/FWS requirements agreed to
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1 by the applicant.
2 (b)Lands to which this Section apply. See Section 122-2 (b)(2)
3 (c)Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown
4 on the FWS SFAMs may be determined by scaling distances. Required
5 interpretations of those maps for precise locations of such boundaries shall be
6 made by the County Planning Director or his/her designee, in consultation
7 with the building official.
8 (d)Administration of Development Approval in Species Focus Areas.
10 1. SFA Review Required. For parcels or lots shown within the
11 SFAMs in which an application for development permit has been made, if
12 the SFAM indicates the parcel or lot contains only unsuitable habitat for
13 any of the following species: Key Largo Cotton Mouse, Key Largo
14 woodrat, Key tree -cactus, Lower Keys marsh rabbit, Eastern indigo snake,
15 Key deer, Schaus swallowtail butterfly, silver rice rate, and Stock Island
16 tree snail, and the parcel or lot is not listed on the RE list, the Planning
17 Director or his/her designee shall provide for a notation in the development
18 application permit files that indicates:
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a.. The name of the official that reviewed the
development application for FWS requirements;
b. The date of the review:
C. The date of the SFAM and RE list used to conduct
the review.
Once the review has established that a parcel or lot contains
unsuitable habitat, action may be taken on the permit application for
development by Monroe Coun , staff.
2. FWS Technical Assistance Permit Reauirements. For
parcels or lots shown within the SFAMs in which an application for a
permit for development has been made including 1) expanding the footprint
of a structure, and/or 2) expanding clearing in habitat (includingnative
ative
vegetation removal)• and/or 3) placement of fencing into key deer habitat,
if the SFAM indicates the parcel or lot contains suitable habitat for any of
the following species: Key Largo Cotton Mouse, Key Largo wood rat, Key
tree -cactus, Lower Keys marsh rabbit, Eastern indigo snake, Key deer,
Schaus swallowtail butterfly, silver rice rat, and/or Stock Island tree snail,
and the parcel or lot is listed on the RE list, the Planning Director or his/her
designee shall use the SAGs to determine whether a floodplain
development permit application requires:
Page 15 of 19
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1 a. incorporation of FWS SAG requirements as conditions
2 into the Monroe County permit and the County may issue the
3 permit, pursuant to all applicable codes, or
5 b. if, according to the SAGS, the proposed development
6 needs technical assistance by the Service, the County shall issue the
7 permit in accordance with Chapter 2012-205, Laws of Florida,
8 indicating a Notice to Proceed must be obtained prior to any
9 construction, removal of vegetation, or commencement of
10 development, with a condition that:
11 1. the applicant seek and obtain technical assistance from
12
the Service, and
13
2. the applicant obtain, prior to the issuance of the Notice
14
to Proceed, all applicable state or federal permits or
15
approvals pursuant to Section 122-2 (a); and
16
3. In accordance with the Florida Building Code and
17
Monroe County Section 6-103 (b), the permit shall
18
expire after 180 days; and
19
4. If the permit expires, the applicant shall be required to
20
reapply for the permit.
21
22
c. For a floodplain development permit application that
23
requires the Services' technical assistance, Monroe County shall
24
provide the application to the Service weekly. Based on the
25
Services technical assistance, the applicant shall submit the FWS
26
written requirements to the County. If the applicant agrees to the
27
FWS requirements, in writing, Monroe CoRgly may then issue a
28
NOTICE TO PROCEED that includes the technical assistance
29
requirements, provided by the federal agency to avoid possible
30
impacts on federally listed (threatened or endangered)species, as
31
conditions in the Monroe County permit.
32
33
d. For a development permit application that requires
34
mitigation and/or compensation for adverse effects to native habitat,
35
monetary compensation generated will be applied to restoration
36
and/or purchase of native habitat.
37
38
e. The County shall maintain an applicant acceptance form,
39
of the Service requirements, in the permit file.
40
41
f. For purposes of this Chapter the Notice to Proceed shall
42
be written authorization from the Monroe County Growth
43
Management Division to the permittee that the permitted
44
development activities may_begin.
45
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1 g. If the parcel is within an area previously covered by a
2 Habitat Conservation Plan, and where that Habitat Conservation
3 Plan has expired at the time of development permit application, the
4 County shall apply this Permit Referral Process.
6
h. If the property owner does not agree to the FWS
7
technical assistance requirements to be included in the development
8
permit as conditions, the County shall not issue the notice to
9
proceed and shall rescind the previously issued development permit.
10
11
3. Provision for Flood Hazard Reduction and Avoiding
12
impacts on federally listed (threatened or endangered) species
13
Enforcement. All proposed development shall meet the conditions
14
established on the floodplain development permit and/or notice to proceed,
15
which includes FWS technical assistance requirements included as
16
conditions on the Monroe Co= development permits, to avoid possible
17
impacts on federally -listed species (threatened or endangered). Violation
18
of this Chapter, including any development constructed not in accordance
19
with the FWS requirements, included as conditions on the Monroe County
20
development permit, derived through use of the SAGs or through technical
21
assistance by FWS, are hereby deemed to be violations of the CoMnly Code
22
and may be enforced utilizing the administrative enforcement procedures
23
set forth in Chapter 8, Monroe County Code of Ordinances. Further,
24
Section 118-11 shall be utilized to require environmental restoration
25
standards.
26
27 4. Permit issuance for previously tolled Rate of Growth Ordinance
28 (ROGO) allocations or building_ permits. Building_ permits and allocations
29 have been tolled under authority of Monroe County Resolutions 420-2005,
30 166-2006, 185-2007 & 219-2008 and 282-2011 as a result of the injunction
31 prohibiting FEMA from issuing flood insurance policies under the National
32 Flood Insurance Program which was imposed in the case of Florida Key
33 Deer et. al.,v. Fugate et. al., 90-10037-CIV-Moore. In order for those
34 persons whose allocations or whose building_ permits were tolled to be
35 eligible for Federal flood insurance and meet their obligations under the
36 Federal Endanaered Snecies Act, the following is reauired:
MA
39 a. Owners who do not need coordination with FWS after they are
40 processed through Permit Referral Process have 180 da s�from.
41 the date of rendition of the Court's order liftin the he injunction,
42 or from the date of a County issued written notice, to pick up
43 their building_ permits, whichever is greater.
44 b. Owners who do not need coordination with FWS after they are
45 processed through the Permit Referral Process and who need to
46 re -design their on -site wastewater treatment system and receive
Page 17 of 19
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1 a permit from Department of Health (DOH) have 300 days
2 from the date of rendition of the Court's order lifting the
3 injunction, or from the date of a County issued written notice,
4 to pick up their building_ permit, whichever is greater.
5 c. Flood Plain Development Permit applications processed
6 through the Permit Referral Process that result in a "may affect
7 determination" for the proposed development through the
8 Uplication of the Species Assessment Guides which require
9 the permittee to coordinate with FWS shall have 360 days to
10 conclude the required coordination with FWS and pick up the
11 building_ permit from Monroe County. This timeframe may
12 extended by the Planning Director if the applicant can
13 affirmatively demonstrate that he has timely and actively
14 sought coordination.
15
16 Section 4. Severability,
17 If any section, paragraph, subdivision, clause, sentence or provision of this
18 Ordinance shall be adjudged by any court of competent jurisdiction to be invalid,
19 such judgment shall not affect, impair, invalidate, or nullify the remainder of this
20 Ordinance, but the effect thereof shall be confined to the section, paragraph,
21 subdivision, clause, sentence or provision immediately involved in the controversy
22 in which such judgment or decree shall be rendered.
23 Section 5. Conflicting Provisions.
24 In the case of direct conflict between any provision of this ordinance and a portion
25 or provision of any appropriate federal, state or county law, rule, code or
26 regulation, the more restrictive shall apply.
27 Section 6. Filing. Transmittal. and Effective Date.
28 This ordinance shall be filed in the Office of the Secretary of State of the State of
29 Florida, and transmitted to the State Land Planning Agency, but shall not become
30 effective until a notice is issued by the State Land Planning Agency or
31 Administrative Commission approving the ordinance pursuant to Chapter 380,
32 Florida Statutes, and after any appeal period has expired.
33 Section 7. Codification
34 The provisions of this ordinance shall be included and incorporated into the Code
35 of Ordinances of the County of Monroe, Florida, as an addition or amendment
36 thereto and shall be appropriately numbered to conform to the uniform numbering
37 system of the Code.
38
39
40
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CH. 122-10 Floodplain Regulations
Staff Report
IV RECOMMENDATION
Staff has found that the proposed text amendment would be consistent with the provisions of
§102-158(d)(5)(b): 1. Changed projections (e.g., regarding public service needs) from those
on which the text or boundary was based; 2. Changed assumptions (e.g., regarding
demographic trends); 3. Data errors, including errors in mapping, vegetative types and
natural features described in volume I of the plan; 4. New issues; 5. Recognition of a need for
additional detail or comprehensiveness; or 6. Data updates.
Specifically, staff has found that the proposed text amendments are necessary due to new
issues associated with FEMAs administration of the NFIP.
Staff recommends that the Board of County Commissioners amend the Monroe County Code
as stated in the text of this staff report.
Attachments:
A. U.S. Fish and Wildlife Service Biological Opinion
B. January 11, 2011 Settlement Agreement with Amended Reasonable and Prudent
Alternatives (RPA's)
C. Species Focus Area Parcel List
D. Species Focus Area Maps
E. Species Assessment Guides
F. USFWS GIS Analysis of Potential impacts in Unincorporated Monroe County
Page 19 of 19
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
Michael Roberts, CEP; Sr. Admin/Env. Resources
Date: June 5, 2012
RE: USFWS Biological Opinion
Section 7 of the Endangered Species Act (ESA) requires Federal agencies to consult with
the U.S. Fish and Wildlife Service (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 the Federal Emergency Management Agency
(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 a
Biological Opinion (BO) for the effects of the NFIP on federally listed 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
injunction 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.
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 five resolutions (Resolution 420-2005; 166-
2006, 185-2007; and 219-2008 and 282-2011) 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 191 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 HB 7207 permit extensions. However under HB 7207, if previous
extensions totaled 4 years, the permit expiration date cannot be extended (these
extensions are not applicable to allocations). This Ordinance gives tolled permittees the
following times to obtain and reactivate their permits, depending on the individual
circumstance:
1. Owners who do not need coordination with FWS after they are processed through
the Permit Referral Process have 180 days from the date of rendition of the
Court's order lifting the injunction, or from the date of a County issued written
notice, to pick up their building permits, whichever is greater.
2. Owners who do not need coordination with FWS after they are processed through
the Permit Referral Process and who need to re -design their on -site wastewater
treatment system and receive a permit from Department of Health (DOH) have
300 days from the date of rendition of the Court's order lifting the injunction, or
from the date of a County issued written notice, to pick up their building permit,
whichever is greater.
3. Owners who are required to coordinate with FWS through the Permit Referral
Process the shall have 360 days to conclude the required coordination with FWS
and pick up the building permit from Monroe County. This timeframe may be
extended by the Planning Director if the applicant can affirmatively demonstrate
that he has timely and actively sought coordination.
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 (attachment A). 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 could 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 RDA's
were subsequently revised and the revised RPA's became final with the execution of the
Settlement Agreement on January 11, 2011.
The amended RPA (attachment B) and RPM (beginning on page 164 of the BO) include
actions the County must take to ensure that FEMA's administration of the 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. Further,
the RPA's require the County to include the requirements in the Monroe County Building
Permit conditions. A general summary of how the process should work is as follows:
1. Using County aerial photography and geospatial land cover mapping (habitat
maps), 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 created a list of real estate numbers (dated November 18, 2011)
(Attachment C) for the properties that occur within listed species habitat and
species buffer areas based upon the Species Focus Area Maps.
3. FWS provided the maps to FEMA for distribution to the participating
communities in Monroe County. FEMA provided the Species Focus Area Maps
(dated April 30, 2011) (Attachment D) to Monroe County on November 10, 2011.
4. FEMA - required 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, with an extension letter granted to June 30, 2012) to:
A. Use "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 a
Species Focus Area or a Species Buffer Area as depicted on the Species
Focus Area Maps, whether the property is in an area not subject to NFIP
or not:
i. The USFWS developed Species Assessment Guides (SAG's) in
order to provide guidance and recommendations that if
implemented will minimize adverse affects to the covered species.
If the use of these guides result in a determination of "no effect"
for a particular project, the Service supports this determination. If
the use of the guide results in a determination of "not likely to
adversely affect" determination, the Service concurs with this
determination and no additional correspondence is necessary. If
the use of this guide results in a "may affect" determination, then
additional coordination with the Service is necessary and permits
can be issued with a condition that all state and federal permits be
received before a Notice to Proceed may be issued.
ii. The Species Assessment Guides include conservation measures
that allow use of the restoration and mitigation standards contained
in Chapter 118-2 and 118-8 of the Monroe County Land
Development Code to compensate for loss of habitat unless the
parcel contains or is adjacent to native habitat of 1 acre greater*. If
these measures are established with (and accepted by) the land
owner and become part of the development permit then no further
USFWS review will be required.
* * Development of parcels that contain or are adjacent to contiguous native habitat for
the relevant species that is greater than 1 acre in size results in a "may affect"
determination and requires further coordination with the U.S. Fish & Wildlife Service.
For projects that result in a "may affect" determination, if, after reviewing the specific
project and assessing its potential effects to federally listed species, the Service
determines that the project will result in take, the Service will notify FEMA and the
acreage of impacts will be subtracted from the take limits provided in the BO (see table
below).
NFIP Action and Cumulative Impacts for Unincorporated Monroe County (from
BO Tables EA-16 and EA-1
Species
FEMA Action Impact
(Acres) in Unincorporated
Monroe County
Cumulative Impact (acres)
in Unincorporated Monroe
County
Eastern Indigo Snake
772.5
103.8
Key deer
290.6
33
Key Largo Cotton Mouse
218
30.5
Key largo woodrat
218
305
Key tree cactus
249.5
31.7
Lower Keys marsh rabbit
84
17.1
Schaus swallowtail
217.2
31.3
Silver rice rat
172
28.4
Critical Habitat — silver rice
rat
37
33.9
Stock Island tree snail
249.5
31.7
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 communi eli dbility for flood insurance.
E. FEMA will conduct training for the participating communities in the
implementation of the Permit Referral Process. FEMA conducted an initial
training session in Key Largo, Florida on March 6, 2012.
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.
On February 16, 2012 the FWS circulated updated guidance on the implementation of the
RPA's. This guidance clarified in writing that only development that resulted in a "May
Affect" determination might impact Table 18. Furthermore, the guidance included
revisions to the SAG's that would allow staff to pre -determine that the development of
Tier III parcels that were within canal subdivisions or substantially developed
subdivisions would Not Likely Adversely Affect (NLAA) any of the covered species.
Further, after additional coordination with the FWS and FEMA, it was determined that
these "pre -determined parcels" would not be required to be evaluated through the permit
review process.
On May 20, 2012, FWS provided revised versions of the Species Assessment Guides
(Attachment E). These revisions include clarification on development of parcels that
contain and/or are adjacent to contiguous hammock greater than 1 acre in size.
Development of these parcels results in a "may affect" determination and further
coordination with the Service will be necessary. If, after reviewing the specific project
and assessing its potential effects to federally listed species, the Service determines that
the project will result in take, the Service will notify FEMA and the acreage of impacts
will be subtracted from the take limits provided in the BO.
The FWS provided GIS analysis of private, vacant lands occurring within suitable habitat
of 1 acre or more by species to determine the worst case scenario for impacts to the
covered species (Attachment F). This information is critical to the determination as to
whether Monroe County may eventually have to deny building permits based on the
mandated provisions of the BO, RPA's and SAG's.
In this analysis, FWS excluded publicly owned lands and areas of habitat less than one
acre. This analysis provided the following information:
U.S. Fish and Wildlife Service Summary of Vacant, Privately Owned Parcels containing
or adjacent to contiguous habitat of 1 acre or more
Species
Take Issued -
Acres of Habitat
TOTAL
# Parcels in
suitable habitat
Acres of Suitable
Habitat
Cotton Mouse
217.8
809
256
Eastern Indigo Snake
772.5
2288
2921
Key Deer
290.6
953
1823
Marsh Rabbit
83.6
859
1151
Schaus Swallowtail
217.2
809
257
Silver Rice Rat
172.3
1098
1997
Silver Rice Rat CH
36.5
98
432
Tree Cactus
249.5
1186
789
Tree Snail
249.5
1186
789
Woodrat
217.8
809
256
The FWS also analyzed the potential loss of suitable habitat based on Monroe County
Land Development Codes related to land clearing. Specifically, FWS calculated the
potential loss of suitable habitat based on 40% clearing of native habitat on parcels in
Tier 2, 3 and 3A. For impacts on parcels in Tier I, FWS incorporated the ROGO limits
for Tier I allocations. Using these assumptions, FWS calculated the following impacts
over the 13 year period (2010 - 2013) of the BO. Therefore, the following data does
not account for the actual adoption date of the proposed Ordinance.
TAKE Bi0 Table EA-16,
( p pg
234)
MAX Tier
develop
ment*
40%
Tier
2
40%
Tier
3
0
SUM
Difference
(Take -
Sum)
Cotton Mouse
217.8
2.8
0.0
6.0
18.0
26.8
191.0
Eastern Indigo Snake
772.5
29.4
1.2
44.4
18.8
93.8
678.7
Key Deer
290.6
16.1
1.2
4.4
0.4
22.1
268.5
Marsh Rabbit
83.6
11.8
0.8
9.6
0.0
22.2
61.4
Schaus Swallowtail
217.2
2.8
0.0
6.0
18.0
26.8
190.4
Silver Rice Rat
172.3
16.5
1.2
12.0
0.8
30.5
141.8
Silver Rice Rat CH
3.5
34.7
0.0
0.0
0.0
34.7
1.8
Tree Cactus
29.5
14.7
0.0
7.2
18.0
39.9
209.6
Tree Snail
2.5
14.7
0.0
7.2
18.0
39.9
209.6
Woodrat
217.8
2.8
0.0
6.0
18.0
26.8
191.0
In addition to the FWS analysis outlined above, Monroe County Planning and
Environmental Resources staff analyzed the potential habitat impacts associated with
development based on the number of parcels in suitable habitat (as provided by FWS)
compared to proposed Monroe County Land Development Code revisions that have been
transmitted and are expected to be adopted in September 2012. Specifically, we analyzed
the potential impacts that would result from every parcel in suitable habitat with the
assumption that each permit would result in the loss of 7,500 square feet of native habitat
— the maximum clearing limit for native upland habitat allowed the proposed Code
revisions. This analysis yielded the following:
Summary of Vacant, Privately Owned Parcels in suitable habitat that contain or are
contiguous to native habitat of 1 acre or greater in size.
S ecies
P
Take
Issued -
Acres of
Habitat
TOTAL
# Parcels
in suitable
habitat
Acres
r s
Suitable
Habitat
Max Potential
Impact***
Cotton Mouse
217.8
809
256
139.29
Eastern Indigo Snake
772.5
2288
2921
393.94
Key Deer
290.6
953
1823
164.08
Marsh Rabbit
83.6
859
1151
147.90
Schaus Swallowtail
217.2
809
257
139.29
Silver Rice Rat
172.3
1098
1997
189.05
Silver Rice Rat CH
3.5
98
432
16.87
Tree Cactus
249.5
1186
789
204.20
Tree Snail
249.5
1186
789
204.20
Woodrat
217.8
809
256
139.29
*** Maximum potential impact assumes each permit results in the clearing of 7500
square feet of native habitat
As the table above shows, under proposed land development codes, the potential for
exceeding the allowable take for each species is quite low with the use of the revised
SAG's. Only impacts to Lower Keys Marsh Rabbit habitat and silver rice rat habitat
have the potential for exceeding the take limits under the scenario used for analysis,
however it should be pointed out that the majority of marsh rabbit and rice rat habitat
consists of wetland communities that have a 100% open space requirement under current
County codes and therefore the impacts reflected in the table likely overestimate the
actual potential impacts. In addition, the above analyses include parcel and acreage data
for all Tier categories and the majority of marsh rabbit habitat and silver rice rat habitat is
in Tier I.
An analysis of private, vacant parcels excluding Tier I parcels indicates that the
probability of exceeding the issued take is very low, as detailed in the following Table:
FWS Summary Analysis of privately owned, vacant parcels within
SFAMs that contain or are contiguous to native habitat of 1 acre or more
in size excluding Tier I parcels
Species
Take Issued -
Acres of
Habitat
TOTAL NON -Tier 1
# Parcels
Acres
Cotton Mouse
217.8
460
129
Eastern Indigo Snake
772.5
862
238
Key Deer
290.6
76
16
Marsh Rabbit
83.6
118
26
Schaus Swallowtail
217.2
460
130
Silver Rice Rat
172.3
170
36
Silver Rice Rat CH
36.5
1
0
Tree Cactus
249.5
491
133
Tree Snail
249.5
491
133
Woodrat
217.8
460
129
Combined Habitat
n/a
862
238
Based on our analysis, the clarifications provided by the FWS and the revisions to the
Species Assessment Guides, the Monroe County Growth Management Division is
recommending revisions to Chapter 122 (Floodplain Regulations) of the Monroe County
Land Development Code to incorporate the Permit Referral Process.
Attachments:
A. U.S. Fish and Wildlife Service Biological Opinion
B. January 11, 2011 Settlement Agreement with Amended Reasonable and Prudent
Alternatives (RPA's)
C. Species Focus Area Parcel List
D. Species Focus Area Maps
E. Species Assessment Guides
F. USFWS GIS Analysis of Potential impacts in Unincorporated Monroe County
ORDINANCE NO. -2012
AN ORDINANCE BY THE MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS AMENDING CHAPTER
122 FLOODPLAIN REGULATIONS, CREATING
SECTION 122-8 PROVIDING FOR INCLUSION OF
UNITED STATES FEDERAL EMERGENCY
MANAGEMENT AGENCY (FEMA) AND UNITED
STATES FISH AND WILDLIFE SERVICE (FWS)
REQUIREMENTS IN PERMIT REFERRAL PROCESS
IMPLEMENTATION AND DETERMINATIONS;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
REPEAL OF CONFLICTING PROVISIONS; PROVIDING
FOR TRANSMITTAL TO THE STATE LAND PLANNING
AGENCY AND THE SECRETARY OF STATE;
PROVIDING FOR CODIFICATION; PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the National Flood Insurance Program (NFIP) is a Federal program enabling
property owners in participating communities to purchase flood insurance in exchange for the
community's adoption of floodplain management regulations to reduce future flood damages; and
WHEREAS, in 1990 the National Wildlife Federation, Florida Wildlife Federation, and the
Defenders of Wildlife filed suit against the Federal Emergency Management Agency (FEMA)
claiming FEMA was not consulting with the U.S. Fish and Wildlife Service (FWS or Service) as
required by the Endangered Species Act in their administration of the National Flood Insurance
Program (NFIP) in Monroe County, Florida; and
WHEREAS, in 1997 the Service completed a Biological Opinion (BO) for the effects of the
NFIP on Federally listed (threatened or endangered) species in the Florida Keys; and
WHEREAS, the 1997 BO found the NFIP jeopardized nine species in the Keys; and
WHEREAS, in 2003 the Service re -initiated consultation and amended the 1997 BO and
concluded that the effect of the NFIP would result in jeopardy on eight of 10 species evaluated in the
BO; and
WHEREAS, in a second amended complaint in 2003 the plaintiffs filed suit against FEMA and
the Service pursuant to the Endangered Species Act and the Administrative Procedures Act; and
WHEREAS, on March 29, 2005 the United States District Court, Southern District of Florida
(District Court) granted summary judgment in favor of the Plaintiffs which found that the Service
and FEMA violated the Endangered Species Act and the Administrative Procedures Act; and
WHEREAS, on September 9, 2005, the District Court entered an order enjoining FEMA from
issuing flood insurance under the NFIP on any new residential or commercial developments in
suitable habitats of federally listed (threatened or endangered) species in the Keys; and
Page 1 of 15
WHEREAS, the District Court also ordered the Service to submit a new BO by August 9, 2006.
The Service issued a new BO on August 8, 2006; and
WHEREAS, on April 1, 2008, the United States Court of Appeals for the Eleventh Circuit
affirmed the District Court's rulings of March 29, 2005 and September 9, 2005; and
WHEREAS, On February 26, 2009, the District Court ordered the Service to submit a new BO
by March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this deadline;
and
WHEREAS, on April 30, 2010, the Service published the revised BO for FEMA's administration
of the NFIP in Monroe County; and
WHEREAS, the BO contains "Reasonable and Prudent Alternatives" (RPA's) that 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 (referenced in RPA
paragraph 1) within 120 days of acceptance of this BO by the Court, and;
WHEREAS, on January 11, 2011, the District Court approved a Settlement Agreement between
the Plaintiffs and the Federal Defendants in which the Federal Defendants agreed to notify the
Court and the parties when Monroe County and the other "participating communities" in the Florida
Keys have: 1) revised their Flood Damage Prevention Ordinance(s); and 2) implemented procedures
to reference and use the updated real estate list and Species Focus Area Maps (referenced in
reasonable and prudent alternative ("RPA") paragraph 1) in compliance with paragraphs 2, 3, 4, and
5 of the RPA; and
WHEREAS, on December 2, 2011, FEMA notified Monroe County that if the County did not
implement the RPA's by January 11, 2012, then Monroe County would have been placed on
probation on May 10, 2012.In response to the County's requested time extension, FEMA requested
and the Court granted an extension to June 30, 2012 for the ordinance revisions and permit referral
process implementation; and
WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
advised the Board that adoption of the RPA's; ordinance language; and originally drafted Species
Assessment Guides (SAGs) suggested by the Federal agencies would have resulted in increased
exposure to the County for liability for inverse condemnation or takings claims; and
WHEREAS, FEMA and the Service revised the SAGs to include provisions that substantially
reduce the County's potential exposure for liability for inverse condemnation or takings claims; and
WHEREAS, FEMA provided comments on the County's DRAFT Ordinance, transmitted by the
County to FEMA on various dates; and
WHEREAS, because the Florida Constitution prohibits the County from incorporating future
federal statutes and regulations into its existing ordinances, the County is unable to adopt the
"subsequent revisions" to the Species Focus Area Maps (SFAMs) or Species Assessment Guides
Page 2 of 15
(SAGs) into this ordinance as desired by FEMA, until the subsequent revisions are published and
adopted by the then sitting Board of County Commissioners pursuant to the process set forth in
Florida law; see, e.g., Abbott Laboratories v. Mylan Pharmaceuticals, 15 So.3d 642 (Fla. lst DCA
2009); and
WHEREAS, the County has revised said ordinance; and
WHEREAS, the Florida Legislature adopted Chapter 2012-205 Laws of Florida, effective July 1,
2012, which states:
"For any development permit' application filed with the county after July 1, 2012, a county may not
require as a condition of processing or issuing a development permit that an applicant obtain a
permit or approval from any state or federal agency unless the agency has issued a final agency
action that denies the federal or state permit before the county action on the local development
permit. Issuance of a development permit by a county does not in any way create any rights on the
part of the applicant to obtain a permit from a state or federal agency and does not create any
liability on the part of the county for issuance of the permit if the applicant fails to obtain requisite
approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that
result in a violation of state or federal law. A county may attach such a disclaimer to the issuance of
a development permit and may include a permit condition that all other applicable state or federal
permits be obtained before commencement of the development. This section does not prohibit a
county from providing information to an applicant regarding what other state or federal permits
may apply. "
WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
proposed an ordinance with alternative language to meet the RPAS, which is consistent with Federal
law, addresses Chapter 2012-205, Laws of Florida, and adequately protects the County taxpayers
against accepting that additional liability;
WHEREAS, the September 9, 2005 District Court injunction will only be lifted by the Court if
the FWS Biological Opinion and Reasonable and Prudent Alternatives, which requires property
owners within the species -focus areas and buffer areas to go through the Permit Referral Process, are
implemented by each of the participating communities;
WHEREAS, any property owner has an obligation to comply with the Federal Endangered
Species Act;
WHEREAS, the County has an obligation to comply with the Federal Endangered Species Act;
WHEREAS, subject to resolutions 420-2005; 166-2006; 185-2007; 219-2008 and 282-2011,
property owners are able to "toll" their building permits and ROGO allocations because they were
not eligible for flood insurance as a result of the September 9, 2005 District Court injunction;
1 For the purposes of Chapter 2012-205 Laws of Florida, the definition of Development
Permit is: "Development permit" includes any building permit, zoning permit,
subdivision approval, rezoning, certification, special exception, variance, or any other
official action of local government having the effect of permitting the development of
land.
Page 3 of 15
WHEREAS, the only way the Court will terminate the 2005 District Court injunction is if
participating communities comply with the BO RPA's;
WHEREAS, this Ordinance is being adopted to provide owners with tolled building permits
and/or ROGO allocations a way to develop in a manner consistent with the Endangered Species Act
and that will be eligible for national flood insurance;
WHEREAS, the Monroe County Planning Commission during a regular meeting held on April
25, 2012, reviewed, discussed and approved the Sr. Director of Planning and Environmental
Resources' recommendation to the Planning Commission for the revisions to Chapter 122 of the
Monroe County Land Development Code;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1. Section 122-2 of the Monroe County Land Development Code shall be amended as
follows: (additions are underlined; deletions are stfieken d4feugh)
Sec.122-2. General provisions.
(a) Applicability. Except as provided for the elevated portion of a nonconforming residential
structure by section 122-4(a) (10), no structure or manufactured home hereafter shall be located,
extended, converted or structurally altered, and no development shall occur, without full compliance
with the terms of this chapter in addition to other applicable regulations, including, but not limited
to, 44 CFR 60.3(a)(2) .
(b) Basis for Establishing_ Special Flood Hazard Maps: Species Focus Area Maps
(SFAMs) with Species Focus Area Buffers and Federally Protected Species Area Real Estate (RE)
List, and Species Assessment Guides (SAGs).
1_The areas of special flood hazard identified by the Federal Emergency Management Agency
(FEMA) in its , 1989 Flood Insuf-anee Study and Wave Height Analysis for- Mefwee
February 18, 2005 Maps -with the most euffent
effleial maps approved by FEMA, with accompanying supporting data, and any revisions thereof,
are adopted by reference and declared to be a part of this chapter, and shall be kept on file, available
to the public, in the offices of the county Building Department. Letter of Map Amendments, Letter
of Map Revisions, Letter of Map Revision Based on Fill, and Conditional Letter of Map Revisions
approved by FEMA are acceptable for implementation of this regulation.
2. Species Focus Area (SFAMs) with Species Focus Area Buffers and Species Real Estate (RE)
List. FEMA and FWS have provided the Species Focus Area Maps (SFAMs) mailed to Monroe
County and dated April 30, 2011. and a listing of real estate numbers of parcels (RE list) emailed to
Monroe County and dated November 18, 2011, that are within the SFAMs and that have been
identified by FWS. The SFAMs and the RE List that are within the SFAMs identified by the FWS
in accordance with the Biological Opinion, dated April 30, 2010, as amended December 14, 2010
Page 4 of 15
are hereby declared to be a part of this ordinance. The SFAMs and RE list are on file at the Monroe
County Clerk's office and the Monroe County Growth Management Division Office.
3. Species Assessment Guides (SAGs). FEMA and FWS have provided the Species Assessment
Guides (SAGs) mailed to Monroe County and dated May 20, 2012. These SAGs are declared to be a
part of this ordinance. The SAGs are on file at the Monroe County Clerk's office and the Monroe
County Growth Management Division Office.
(c) Rules for interpreting flood hazard issues. The boundaries of the flood hazard areas shown on
the official flood insurance rate maps may be determined by scaling distances. Required
interpretations of those maps for precise locations of such boundaries shall be made by the
floodplain administrator, in consultation with the building official. In interpreting other provisions of
this chapter, the building official shall be guided by the current edition of FEMA's 44 CFR, and
FEMA's interpretive letters, policy statements and technical bulletins as adopted by resolution from
time to time by the Board of County Commissioners . Additionally, the building official shall also
obtain, review and reasonably use any base flood elevation and floodway data available from a
federal, state or other source, as criteria for requiring that new construction, substantial
improvements, and other developments meet the criteria required in the appropriate flood zone.
Section 2. Sec. 122-3 of the Monroe County Land Development Code shall be amended as
follows:
Sec.122-3. — Permit requirements.
(a) The following words, terms and phrases, when used in this chapter, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Alteration means any change or modification in construction type, materials, or occupancy.
Base flood means the flood having a one percent chance of being equaled or exceeded in any given
year.
Basement means any area of the building having its floor subgrade (below ground level) on all
sides.
Development means any manmade change to improved or unimproved real estate, including, but
not limited to, buildings or other structures, clearing, mining, dredging, filling, grading, paving,
excavation or drilling operations or storage of equipment of or materials.
Elevated building means a nonbasement building that has its lowest elevated floor raised above
ground level by foundation walls, shear walls, posts, piers, pilings, or columns.
Enclosure means that portion of an elevated building below the lowest elevated floor that is either
partially or fully shut in by rigid walls and used solely for limited storage, parking or entryways.
Enclosures shall not be constructed, equipped or used for habitational or other purposes.
Page 5 of 15
Existing construction means structures for which the start of construction commenced before the
effective date of the floodplain management regulations adopted by the community January 1,
1974. Existing construction is also known as pre -FIRM structures. These regulations adopted by the
county January 1, 1974 are based on the original maps published by the Federal government June
15, 1973.
Existing manufactured home park means a manufactured home park or subdivision for which the
construction of facilities for servicing the lots on which the manufactured homes are to be affixed
(including, at a minimum, the installation of utilities, the construction of the streets, and either final
site grading or the pouring of concrete pads is completed before the effective date of the floodplain
management regulations adopted by the community January 1, 1975, and in which, at the time of
application, there are no site built residences or the park or subdivision is limited to manufactured
home by this chapter.
Finishing materials means anything beyond basic wall construction pursuant to the most recent
FEMA Technical Bulletin, which is normally associated with habitable space. Finishing materials
include, but are not limited to, ceiling mold, trim, baseboards, decorative finish work, wainscoting,
and textured woods.
Historic Structure means any structure that is:
(a) Listed individually in the National Register of Historic Places (a listing maintained by the
Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the
requirements for individual listing on the National Register;
(b) Certified or preliminarily determined by the Secretary of the Interior
as contributing to the historical significance of a registered historic district or a district preliminarily
determined by the Secretary to qualify as a registered historic district;
(c) Individually listed on state inventory of historic places in states
with historic preservation programs which have been approved by the Secretary of the Interior; or
(d) Individually listed on a County inventory of historic places in communities with historic
preservation programs that have been certified either:
(1) By an approved state program as determined by the Secretary of the Interior, or
(2) Directly by the Secretary of the Interior in states without approved programs.
Illegal Structure or Use means a structure or use that is not a legal structure or legal use as defined in
this chapter.
Legal Structure means a structure that was permitted by the floodplain regulation in effect at the
time construction commenced on the structure in its current configuration and received a permit or
final inspection or certificate of occupancy for the structure in its current configuration.
Legal Use means a use that was permitted by the floodplain regulations at the time the use
commenced on the property.
Limited storage means that which is incidental and accessory to the principal use of the structure.
For example, if the structure is a residence, storage should be limited to items such as lawn and
garden equipment, tires, and other low damage items which will not suffer flood damage or can be
Page 6 of 15
conveniently moved to the elevated part of the building. Flood insurance coverage for enclosures
below the Base Flood Elevation (BFE) is very limited.
Lowest Floor means the lowest floor of the lowest enclosed area (including basement). An
unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or
storage in an area other than a basement area is not considered a building's lowest floor; provided,
that such enclosure is not built so as to render the structure in violation of the applicable non -
elevation design requirements of this chapter.
Manufactured home means a structure, transportable in one or more sections, which is built on a
permanent chassis and designed to be used with or without a permanent foundation when connected
to the required utilities. The term also includes park trailer, travel trailers, and similar transportable
structures placed on a site for 180 consecutive days or longer and intended to be improved property.
Market value means the county property appraiser's value of the structure plus 20 percent. A
uniform appraisal report for determination of market value submitted by the applicant may be used
if the county building official considers such appraisal consistent with local construction costs.
Where appraisal is not accepted because it appears to be inconsistent with local construction costs
an applicant may request review by an independent third party appraiser duly authorized by the
county. The cost of independent review shall be borne by the applicant. The reviewing appraiser
shall determine if the appraisal value reasonably reflects an appropriate value of the structure. The
independent appraiser's determination shall be in writing. Professionals preparing appraisal shall be
required to possess certifications as state certified residential appraisers for appraising one to four
family residential properties and state certified general appraisers for all other properties including
commercial and multi -residential
New construction means those structures for which the start of construction commenced on or after
the effective date of the floodplain management regulation adopted by the community that is
January 1, 1975. New construction is also known as post -FIRM structures. These regulations
adopted by the county January 1, 1974 are based on the original maps published by the Federal
government June 15, 1973.
Nonconforming structure means a below base flood elevation structure or a portion thereof such as
an enclosure, materials with no openings, flood resistant materials), which was lawfully existing or
permitted, and is not fully compliant with the terms of this chapter. A nonconforming structure shall
remain subject to the terms of this chapter.
Nonconforming structure means a structure for which the lowest floor is located below base flood
elevation, which was lawfully existing or permitted and is not fully compliant with the terms of this
chapter. A nonconforming structure shall remain subject to the provisions of this chapter.
Notice to proceed means written authorization by the County Growth Management Division to the
permittee authorizing_ permitted development to begin.
Pure manufactured home park means a manufactured home park that at the time of application has
no site -built residences or a park or subdivision which is limited to manufactured homes only by
this chapter.
Page 7 of 1 S
Recreational vehicle means a vehicle that is:
(1) Built on a single chassis;
(2) Four hundred square feet or less when measured at the largest horizontal projection;
(3) Designed to be self-propelled or permanently towable by a light duty truck; and
(4) Designed primarily not for use as a permanent dwelling but as temporary living quarters
for recreational, camping, travel or seasonal use.
Start of construction means (for other than new construction or substantial improvements under the
Coastal Barrier Resources Act) includes substantial improvements, and means the date the building
permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation,
addition, placement or other improvement was within 180 days of the permit date. For substantial
improvements the actual start of construction means the first alteration of any wall, ceiling, floor, or
other structural part of a building whether or not the alteration affects the external dimensions of the
building. The actual start means either the first placement of permanent construction of a structure
on a site, such as the pouring of slab or footings, the installation of piles, the construction of
columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a
foundation. Permanent construction does not include land preparation, such as clearing, grading and
filling; nor does it include the installation of streets and/or walkways; nor does it include excavation
for a basement, footings_ piers, or foundations or the erection of temporary forms; nor does it include
the installation on the property of accessory buildings, such as garages or sheds not occupied as
dwelling units or not part of the main structure.
Substantial damage means damage of any origin sustained by a structure whereby the cost of
restoring the structure to its before damaged condition would equal or exceed 50 percent of the
market value of the structure before the damage occurred. All structures that are determined to be
substantially damaged are automatically considered to be substantial improvements, regardless of the
actual repair work performed. If the cost necessary to fully repair the structure to its before damage
condition is equal to or greater than 50% of the structure's market value before damages, then the
structure must be elevated (or flood proofed if it is non-residential) to or above the Base Flood
Elevation (BFE), and meet other applicable NFIP requirements. Items that should not be eeunted
may be excluded from tewmd the cost to repair include plans, specifications, survey costs, permit
fees, and other items which are separate from or- incident the repair. Items that may also be
excluded should not be eeunted also includes demolition or emergency repairs (costs to temporarily
stabilize a building so that iti s safe to enter to evaluate and identify required repairs) and
improvements to items outside the building, such as the driveway, septic systems, wells, fencing,
landscaping and detached structures.
Page 8 of 15
MIN.M. .R�!� _
J
1. Any project for improvement of a structure to correct existing violations of state or local health,
sanitary, or safety code specifications which have been identified by the local building official
and which are the minimum necessary to assure safe living conditions; or
2. The cost of repairs required to remedy health, safety, and sanitary code deficiencies can be
deducted from the overall cost of an improvement, but only if:
a. an appropriate regulatory official such as a building official, fire marshal, or health
officer was informed about and knows the extent of the code related deficiencies, and
b. the deficiency was in existence prior to the damage event or improvement and will not be
triggered solely by the fact that the structure is being improved or repaired.
In addition, for any repair required to meet health, sanitary, and safety codes, only the
minimum necessary to assure safe living conditions should be deducted, including those
improvements required by Chapter 11, 2012 Florida Accessibility Code. Costs of repairs that
are in excess of the minimum necessary for continued occupancv or use will be counted
toward the cost of the overall improvement; or
-2.3_Any alterations of a "historic structure," provided that the alteration will not preclude the
structure's continued designation as a "historic structure."
Floodplain management requirements for new construction apply to substantial improvements.
Supplemental Information for Substantial Improvement
The basic types of improvements the could be made to structures include but are not limited to aye
rehabilitations or reconstructions that do not increase square footage, and lateral or vertical
additions that do increase square footage.
Rehabilitation or reconstruction would be a partial or complete "gutting" and replacement of
internal workings and may or may not include structural changes. If this action is substantial, i.e.,
over 50 percent of the structure's market value, it is considered new construction, and the entire
building must be elevated to or above the Base Flood Elevation (BFE) (or floodproofed if the
building is non-residential).
Page 9 of 15
For a lateral addition, if the substantial improvement is to add a room or rooms outside the footprint
of the existing building, only the addition is required to be elevated to or above the BFE, i.e.; the
existing building does not have to be elevated. If the proposed lateral addition also includes
rehabilitation or remodeling of the existing building;, then the whole project as a combination of
work must be considered. Vertical additions would require that the entire structure be elevated to or
above the BFE. Even though the improvement itself is entirely above the BFE, it is dependent on
the walls and foundation of the existing building for structural support.
(b) Except for work specifically exempted under chapter 6, the building official shall require
building permits/Floodplain Development Permits for all proposed construction or other
improvements within areas of special flood hazard. In addition to the standard requirements for a
building permit, an application for a building permit for construction or improvements within areas
of special flood hazard shall contain the information and certifications set forth in a form provided
by the Building Official.
(c) All building foundations shall rest directly on natural rock, on concrete piling driven to rock or
on friction piling (concrete or wood) and shall be anchored to such rock support by holes, 16 inches
in minimum diameter, augured into such rock a minimum depth of three feet and reinforced by a
minimum of four #5 vertical rods extending up into the piers above a minimum of 18 inches and
tied to the vertical steel of the pier. Wooden pilings shall be locked into 16-inch auger foundations
by at least a #5 rebar extending through the piling and three to five inches beyond.
(d) The permit holder shall provide a floor elevation after the lowest floor is completed or, in
instances where the structure is subject to the regulations applicable to coastal high -hazard areas,
after placement of the lowest horizontal structural members of the lowest floor. Floodproofing
certification for nonresidential structures in A -Zones shall be provided prior to a certificate of
occupancy or prior to final inspection.
(e) Within 21 calendar days of establishment of the lowest floor elevation, or upon placement of
the lowest horizontal structural members of the lowest floor, whichever is applicable, it shall be the
duty of the permit holder to submit to the building official a certification of the elevation of the
lowest floor within A zones or the lowest portion of the lowest horizontal structural members of the
lowest floor within V zones, whichever is applicable, as built in relation to mean sea level. Such
certification shall be prepared by or under the direct supervision of a registered land surveyor or
professional engineer and certified by the same. When floodproofing is used for a building within A
zones, the certification shall be prepared by or under the direct supervision of a professional
engineer or architect and certified by same. Any work done within the 21-day period and prior to
submission of the certification shall be at the permit holder's risk. The building official shall review
the floor elevation survey data submitted. Deficiencies detected by such review shall be corrected
by the permit holder immediately and prior to further progressive work being permitted to proceed.
Failure to submit the survey or failure to make the corrections required hereby shall be causes to
issue a stop -work order for the project.
(f) The degree of flood protection required in this chapter is reasonable for regulatory purposes
and is based on scientific and engineering considerations. Larger floods can and will occur on rare
occasions. Flood heights may be increased by manmade or natural causes. This chapter does not
imply that land outside the areas of special flood hazard or uses permitted within such areas will be
free from flooding or flood damages. This chapter shall not create liability on the part of the
Page 10 of 15
county or any officer or employee thereof for any flood damages that result from reliance on this
chapter or any administrative decision lawfully made thereunder.
Section 3. The Monroe County Land Development Code is amended by adding Section 122-8
as follows:
Sec. 122-8. Inclusion of United States Federal Emergency Management Agency (FEMA) and
United States Fish and Wildlife Service (FWS) Required Permit Referral Process (PRP) in
Final Permit Determinations for Development
WN
regglations, proper record retention, coordination, and notification of FEMA and FWS
regarding_ permit applications filed with or issued by Monroe County, inclusive of
FEMA/FWS requirements agreed to by the applicant.
Lands to which this Section apply. See Section 122-2 (b) (2)
(c) Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on the
FWS SFAMs may be determined b scaling caling distances. Required interpretations of those
maps for precise locations of such boundaries shall be made by the County Planning
Director or his/her designee, in consultation with the building official.
Administration of Development Approval in Species Focus Areas.
L. SFA Review Required. For parcels or lots shown within
the SFAMs in which an application for development permit has been
made, if the SFAM indicates the parcel or lot contains only unsuitable
habitat for any of the following species: Key Largo Cotton Mouse, Key
Largo woodrat, Key tree -cactus, Lower Keys marsh rabbit, Eastern
indigo snake, Key deer, Schaus swallowtail butterfly, silver rice rate, and
Stock Island tree snail, and the parcel or lot is not listed on the RE list,
the Planning Director or his/her designee shall provide for a notation in
the development application permit files that indicates:
a.. The name of the official that reviewed the
development application for FWS requirements:
b. The date of the review:
C. The date of the SFAM and RE list used to conduct
the review.
Once the review has established that a parcel or lot contains
unsuitable habitat, action may be taken on the permit application for
development by Monroe Count staff.
2. FWS Technical Assistance Permit Requirements. For
parcels or lots shown within the SFAMs in which an application for a
permit for development has been made including 1) expanding the
Page 11 of 15
footprint of a structure, and/or 2) expandingclearing earing in habitat (including
native vegetation removal); and/or 3) placement of fencing into key deer
habitat, if the SFAM indicates the parcel or lot contains suitable habitat
for any of the following species: Key Largo Cotton Mouse, Key Largo
wood rat, Key tree -cactus, Lower Keys marsh rabbit, Eastern indigo
snake, Key deer, Schaus swallowtail butterfly, silver rice rat, and/or
Stock Island tree snail, and the parcel or lot is listed on the RE list, the
Planning Director or his/her designee shall use the SAGs to determine
whether a floodplain development permit application requires:
a. incorporation of FWS SAG requirements as conditions
into the Monroe County permit and the County issue the
permit, pursuant to all applicable codes, or
b. if, according to the SAGs, the proposed development
needs technical assistance by the Service, the County shall issue
the permit in accordance with Chapter 2012-205, Laws of Florida,
indicating a Notice to Proceed must be obtained prior to any
construction, removal of vegetation, or commencement of
development, with a condition that:
i. the applicant seek and obtain technical assistance from
the Service; and
ii. the applicant obtain, prior to the issuance of the Notice
to Proceed, all applicable state or federal permits or
approvals pursuant to Section 122-2 (a): and
iii. In accordance with the Florida Building Code and
Monroe County Section 6-103 (b), the ,permit shall
expire after 180 dam
iv. If the permit expires, the applicant shall be required to
reapply for the permit.
c. For a floodplain development permit application that
requires the Services' technical assistance, Monroe County shall
provide the application to the Service weekly. Based on the
Services technical assistance, the applicant shall submit the FWS
written requirements to the County. If the applicant agrees to the
FWS requirements, in writing, Monroe County may then issue a
NOTICE TO PROCEED that includes the technical assistance
requirements, provided by the federal agency to avoid possible
impacts on federally listed (threatened or endangered) species, as
conditions in the Monroe County permit.
d. For a development permit application that requires
mitigation and/or compensation for adverse effects to native
habitat, monetary compensation generated will be ap lip ed to
restoration and/or purchase of native habitat.
Page 12 of 15
e. The County shall maintain an applicant acceptance
form, of the Service requirements, in the permit file.
f. For purposes of this Chapter the Notice to Proceed shall
be written authorization from the Monroe County Growth
Management Division to the permittee that the permitted
development activities may begin.
g. If the parcel is within an area previously covered by a
Habitat Conservation Plan, and where that Habitat Conservation
Plan has expired at the time of development permit application,
the County shall apply this Permit Referral Process.
h. If the property owner does not agree to the FWS
technical assistance requirements to be included in the
development permit as conditions, the County shall not issue the
notice to proceed and shall rescind the previously issued
development permit.
3. Provision for Flood Hazard Reduction and Avoiding
impacts on federally listed (threatened or endangered) species
Enforcement. All proposed development shall meet the conditions
established on the floodplain development permit and/or notice to
proceed, which includes FWS technical assistance requirements included
as conditions on the Monroe County development permits, to avoid
possible impacts on federally -listed species (threatened or endangered).
Violation of this Chapter, including any development constructed not in
accordance with the FWS requirements, included as conditions on the
Monroe County development permit, derived through use of the SAGs or
through technical assistance by FWS, are hereby deemed to be violations
of the County Code and may be enforced utilizing the administrative
enforcement procedures set forth in Chapter 8, Monroe County Code of
Ordinances. Further, Section 118-11 shall be utilized to require
environmental restoration standards.
4. Permit issuance for previously tolled Rate of Growth Ordinance
(ROGO) allocations or building_ permits. Building_ permits and allocations
have been tolled under authority of Monroe County Resolutions 420-
2005, 166-2006, 185-2007 & 219-2008 and 282-2011 as a result of the
injunction prohibiting FEMA from issuing flood insurance policies under
the National Flood Insurance Program which was imposed in the case
of Florida Key Deer et. al.,v. Fugate et. al., 90-10037-CIV-Moore. In
order for those persons whose allocations or whose building permits were
tolled to be eligible for Federal flood insurance and meet their oblilzations
under the Federal Endangered Species Act, the followingis s required:
Page 13 of 15
a. Owners who do not need coordination with FWS after
they are processed through Permit Referral Process
have 180 days from the date of rendition of the Court's
order lifting the injunction, or from the date of a
County issued written notice, to pick up their building
permits, whichever is greater.
b. Owners who do not need coordination with FWS after
they are processed through the Permit Referral Process
and who need to re -design their on -site wastewater
treatment system and receive a permit from
Department of Health (DOH) have 300 days from the
date of rendition of the Court's order lifting the
injunction, or from the date of a County issued written
notice, to pick up their building_ permit, whichever is
greater.
c. Flood Plain Development Permit applications
processed through the Permit Referral Process that
result in a "may affect determination" for the proposed
development through the application of the Species
Assessment Guides which require the permittee to
coordinate with FWS shall have 360 days to conclude
the required coordination with FWS and pick up the
building_ permit from Monroe County. This timeframe
may be extended by the Planning Director if the
applicant can affirmatively demonstrate that he has
timely and actively sought coordination.
Section 4. Severability.
If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be
adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
impair, invalidate, or nullify the remainder of this Ordinance, but the effect thereof shall be
confined to the section, paragraph, subdivision, clause, sentence or provision immediately involved
in the controversy in which such judgment or decree shall be rendered.
Section 5. Conflicting Provisions.
In the case of direct conflict between any provision of this ordinance and a portion or provision of
any appropriate federal, state or county law, rule, code or regulation, the more restrictive shall
apply.
Section 6. Filing, Transmittal, and Effective Date.
This ordinance shall be filed in the Office of the Secretary of State of the State of Florida, and
transmitted to the State Land Planning Agency, but shall not become effective until a notice is
issued by the State Land Planning Agency or Administrative Commission approving the ordinance
pursuant to Chapter 380, Florida Statutes, and after any appeal period has expired.
Page 14 of 15
Section 7. Codification
The provisions of this ordinance shall be included and incorporated into the Code of Ordinances of
the County of Monroe, Florida, as an addition or amendment thereto and shall be appropriately
numbered to conform to the uniform numbering system of the Code.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at
a regular meeting held on the day of , 2012.
Mayor David Rice
Mayor Pro Tern Kim Wigington
Commissioner Heather Carruthers
Commissioner George Neugent
Commissioner Sylvia Murphy
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
DEPUTY CLERK
Mayor David Rice
Page 15 of 15
:BCCC1/
ch�eilr*-V
STATE OF FLORIDA �ev Ip? ✓'
DIVISION OF EMERGENCY MANAGEMENT
May 7.2012
•
TO: AN Florida communities in the National Flood Insurance Program
FROM: Bryan W. Koon, Director � w1�
RE: Impact of HS 503 language on NFIP regulation 44CFR 60.3(a)2
House Bill 503 amends Florida Statutes §§125.022 and 166.033, Impacting both
counties and municipalities. The pertinent language reads:
"For any development permit application tiled with the county after July 1, 2012, a
county may not require as a condition of processing or Issuing a development permit
that an applicant obtain a permit or approval from any state or federal agency unless the
agency has issued a final agency action that denies the federal or state permit before
the county action on the local development permit. Issuance of a development permit
by a county does not In any way create any rights on the part of the applicant to obtain a
permit from a state or federal agency and does not create any liability on the part of the
county for issuance of the permit if the applicant fails to obtain the requisite approvals or
fulfill the obligations imposed by a state or federal agency or undertakes any actions
that result in a violation of state or federal law. A county may attach such a disclaimer
to the Issuance of a development permit and may Include a permit condition that all
other applicable state or federal permits be obtained before commencement of the
development. This section does not prohibit a county from providing information to an
applicant regarding what other state and federal permits may apply."
The Bill contains identical language for municipalities.
According to the Federal Emergency Management Agency (FEMA) letter dated March
30, 2012 on this matter, for NFIP communities this presents a potential conflict with
44CFR 60.3(a)(2), which reads:
0(2) Review proposed development to assure that all necessary permits have
been received from those govemmental 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"
FLORIDA RECOVERY OFFICE • DIVISION H ADQUARTEIts • BTATE LOGISTICS ESFONSECENTER
8900 Lake Ellenor Drive 2888 Shumard Oak Boulevard 2702 Directors Row
Orlando, FL 82809-4034 Tallahassee, FL 82399-2100 Orlando, FL 82800-6081
Tel: 880-413-9900 • Fax: 850-489-1016
www. Flerldsl2lasste r.oro
it is not the intention of the House BNI to jeopardize the standing of NFIP communities in
Florida. Per FEMA's letter,
'There are two ways that communities can comply with 44 CFR §W.3(ax2).
1) Communities can Issue the local permit on the condition that other required
permits are obtained; or
2) Communities can hold the local permit until the applicant can show that the
other agencies have Issued their permits."
Therefore, I recommend that all participating communities take the following action, as
allowed for in the legislation:
For all development in mapped food hazard areas. "include a permit condition that all
other applicable state or federal permits be obtained before commencement of the
development."
As our State Floodplain Management Office continues to interact with NFIP
communities, we will request demonstraWn that this permit condition has been included
on all permits Issued in flood hazard areas.
M-Z
US. Department of Homeland security
FEMA Region IV
3003 Chamblee Tucker Road
Atlanta. GA 30341
April 30, 2012
Mr. Bryan W. Koon
Director
Florida Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
Dear Director Koon:
I am in receipt of your April 4, 2012, letter and statement to Florida communities in the National
Flood Insurance Program (NFIP), which addressed the concerns in my March 30, 2012,1etter to
Governor Scott.
In my March 30, 2012, letter, I expressed concern that House Bill 503 (HB 503) may be
interpreted to prohibit Florida NFIP communities from assuring all necessary State and Federal
permits have been obtained prior to the start of construction in the floodplain, which is one of
several preconditions to participating in the NFIP. (See 44 C.F.R. § 60.3(a)(2).) In your letter,
you stated HB 503 would not prohibit Florida NFIP communities from enforcing local floodplain
ordinances consistent with the requirements of 44 C.F.R. § 60.3(a)(2). Additionally, you
informed FEMA that you were sending a statement to all Florida NFIP communities advising
them to "include a permit condition that all other applicable state or federal permits be obtained
before commencement of the development" in mapped flood hazard areas. Your response has
satisfactorily addressed the concerns raised in my March 30th letter.
I appreciate your efforts in ensuring that HB 503 will be implemented in a manner consistent
with floodplain management requirements, and greatly value your parttorship in the NFIP-
Major P. May
Regional Administrator
www.fema.gov
United States Departmentof the Interior
In Reply Refer To:
FWS/R4/ES
FISH AND WILDLIFE SERVICE
1875 Century Boulevard
Atlanta, Georgia 30345
April 30, 2010
Mr. W. Craig Fugate, Administrator
Federal Emergency Management Agency
500 C Street, SW
Washington, D.C. 20472
Dear Mr. Fugate:
This is the U. S. Fish and Wildlife Service's (Service) 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 NFIP, created in 1968, is a Federal program enabling property
owners in participating communities to purchase flood insurance in exchange for the
community's adoption of floodplain management regulations that reduce future flood damages.
If a community adopts and enforces floodplain management regulations to reduce future flood
risk to new construction in floodplain, the Federal government will make flood insurance
available within the community. Community participation in the NFIP is voluntary. For
assessment purposes, our evaluation is to the year 2023, which is a 13-year period (2010 through
2023).
The 13-year period coincides with the expiration of the Big Pine/No Name Key Habitat
Conservation Plan (HCP) incidental take permit (Service 2006). The Big Pine/No Name Key
HCP addresses development related effects to three of the nine species addressed in this BO. In
order to maintain consistency between the two reviews, as there is overlap of species habitat and
development related effects, the Service is matching the FEMA NFIP period of review to the
period of time and expiration date of the Big Pine/No Name Key HCP.
In 1990, the National Wildlife Federation, Florida Wildlife Federation, and the Defenders of
Wildlife filed suit against FEMA pursuant to the Endangered Species Act of 1973 as amended
(Act) (87 Stat. 884; 16 United States Code [U.S.C.] 1531 et seq.) on behalf of the endangered
Key deer (Odocoileus virginianus clavium) in the Florida Keys (Keys) claiming FEMA was not
consulting with the U.S. Fish and Wildlife Service (Service) pursuant to the Act. As a result, in
1997 the Service completed a Biological Opinion (BO) as directed by section 7 of the Act for the
effects of the NFIP. administered by FEMA, on federally protected species in the Keys. The
1997 BO found the NFIP jeopardized nine species in the Keys (Monroe County, Florida). In
2003, the Service and FEMA re -initiated consultation in accordance with a re -initiation clause in
the 1997 BO. The resulting amendment to the 1997 BO in 2003 concluded that the effect of the
NFIP would result in jeopardy on eight of 10 species evaluated in the BO. In a second amended
complaint in 2003, the plaintiffs filed suit against FEMA and the Service pursuant to the Act and
the Administrative Procedure Act (APA) (79 Stat. 404; 5 U.S. C. 500 et seq.).
The plaintiffs won a Summary Judgment on all three counts of their complaint. On March 29,
2005, the United States District Court, Southern District of Florida (Court) issued an Order
riling the Service and FEMA violated the Act and the APA. Specifically, the Court found:
(1) the Service and FEMA violated the Act's section 7(a)(2) and APA's prohibition
against actions that are arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law by failing to protect against jeopardy;
(2) the Service and FEMA failed to ensure against adverse modification 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 Act.
On September 9, 2005, the Court granted the plaintiffs' motion for an injunction against FEMA
issuing flood insurance on any new residential or commercial developments in suitable habitats
of federally listed species in the Keys. The injunction applied to properties on a list of potential
suitable habitat submitted to the Court by the Service. Plaintiffs have stipulated to the removal
of some properties on the suitable habitat list based on Plaintiffs' determination that the
properties were not located in suitable habitat, thereby enabling some owners to obtain flood
insurance. The Court also ordered the Service to submit a new BO by August 9, 2006. The
Service issued a new BO on August 8, 2006.
On April 1, 2008, FEMA and the Service filed an appeal with the United States Court of Appeals
for the Eleventh Circuit arguing that section 7(a)(2) of the Act did not apply to FEMA's
provision of flood insurance and that FEMA had fully complied with the Court's March 29,
2005, riling.
On April 1, 2009, the United States Court of Appeals for the Eleventh Circuit affirmed the
judgment of the District Court.
On February 26, 2009, the Court ordered the Service to submit a new BO by March 31, 2010.
On March 28, 2010, the Court granted a 30 day extension of this deadline. In compliance with
the Court's order, this document transmits the Service's BO on FEMA's implementation of the
NFIP in the Keys and its effects on 18 federally threatened or endangered species. This revised
BO also addresses the Court's March 2005, criticism of the 2003 RPA. The Court 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. In
this BO, we more clearly describe the steps that will be taken if the RPA is not followed, which
includes new mechanisms for enforcement by FEMA, consistent with its regulations. 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.
This revised BO also provides a complete review of the baseline conditions of having the 2003
RPA in effect and includes new habitat maps reflecting the best available scientific information.
The new maps were developed in cooperation with Monroe County and include Plaintiffs'
comments on habitat mapping parameters.
The listed species in the Keys include:
American crocodile (('rocodvins acntns), threatened, designated critical habitat;
Eastern indigo snake (Drvmarchon corais conperi), threatened;
Garber's spurge (( hamaesvice garberi), threatened;
Key deer (Odocoilens virginianns clavinm), endangered;
Key Largo cotton mouse (Peromvscns gossvpims allapaticola), endangered;
Key Largo woodrat (Neotoma floridana smalli), endangered;
Key tree -cactus (Pilosocerens robinii), endangered;
Lower Keys marsh rabbit (,Svlvilagns pahastris he
fneri) endangered;
Piping plover ((haradrins melodns), threatened, designated critical habitat;
Roseate tern (,Sterna dongallii), threatened;
Schaus swallowtail butterfly (Papilio aristodemns ponceanns), endangered;
Silver rice rat (Orvzomvs argentatns), endangered, designated critical habitat;
Stock Island tree snail (Orthalicns reses reses), threatened;
Green sea turtle ((helonia mvdas), endangered, designated critical habitat;
Hawksbill sea turtle (Eretmochelvs imbricate), endangered, designated critical habitat;
Kemp's ridley sea turtle (Lepidochelvs kempii), endangered;
Leatherback sea turtle (Dermochelvs coriacea), endangered, designated critical habitat;
Loggerhead sea turtle (('aretta caretta), threatened.
Of the above, only the American crocodile, silver rice rat, and piping plover have designated
critical habitat in the Keys. Critical habitats for the green sea turtle, hawksbill sea turtle, and
leatherback sea turtle is not present in the Florida Keys and will not be affected by this action.
In some cases, the action will not affect listed species because their habitat occurs on protected
lands or lands where development will not likely occur. For example, roseate tern nesting
habitat is protected on public lands, and also can be found on spoil islands, or existing rooftops
of commercial or public buildings.
Nesting sea turtles generally are not directly affected by development. The greatest threats to sea
turtles on land are disturbance of females attempting to nest, destruction of nesting areas, nest
disturbance, and predation of eggs or young as they return to the water. Monroe County and the
municipalities within the county have regulations in place that impose required setbacks (usually
100 feet) from sea turtle nesting habitat. McNeese (2006) suggests that disturbances such as
lighting, pets, noise or blocking of nesting areas could adversely affect sea turtles. Local
governments have established ordinances to impose lighting restrictions to avoid and minimize
the potential for disorientation of nesting sea turtles and their hatchlings. Moreover, the U.S.
Army Corps of Engineers (Corps), in consultation with the Service, must issue permits for
proposed projects in waters of the United States that may directly develop or block turtle nesting
areas. The Corps works with the Service to avoid and minimize these types of impacts.
Piping plovers are not common in the Keys, primarily because there are so few sandy beaches.
As mentioned previously, setback requirements (usually 100 feet) regulated by Monroe County
and municipalities protect beaches and the Service consults with the Corps on development
actions affecting them. Virtually all (99.95 percent) of the piping plover critical wintering
habitat (also sandy beaches) in Monroe County is protected.
Land acquisition efforts by many agencies have continued to provide protection for crocodile
habitat in South Florida. Forty-four public properties, owned and managed by Federal, State, or
county governments, as well as two privately owned properties managed at least partially or
wholly for conservation purposes, contain potential crocodile habitat within the coastal
mangrove communities in South Florida. About 95 percent of nesting habitat for crocodiles in
Florida is under public ownership (Mazzotti, personal communication, 2001).
Information gained from the site visits for permits and other activities since the issuance of the
April 18, 2003, BO amendment indicates that the American crocodile occurs primarily on sites
under public ownership and managed for conservation, such as the Service's Crocodile Lake
National Wildlife Refuge (NWR). Because these habitats are not subject to residential or
commercial development, the NFIP does not have any impacts in these areas. Moreover, the
Corps, in consultation with the Service, must issue permits for proposed projects that might
directly affect potential crocodile habitat. A similar situation exists for designated crocodile
critical habitat. About 3.6 percent of crocodile critical habitat is within the Florida Keys. Of
this, about 1.6 percent is on North Key Largo where the large majority is protected. About 2
percent is in South Key Largo down to Long Key. The Corps, in consultation with the Service,
issues permits for proposed projects that may directly affect crocodile critical habitat.
Information gained from site visits for permits and other activities since the issuance of the June
16, 1997, BO indicates that Garber's spurge occurs primarily on sites managed for conservation
under public ownership, such as the Service's National Key Deer Refuge (NKDR). Florida
Natural Areas Inventory (FNAI) (2008) indicates 27 of 31 extant occurrences are on managed
areas. The plant also occurs on road right-of-ways, which are not subject to residential or
commercial development.
As referenced above, during the implementation of the technical assistance review outlined in the
1997 and 2003 Reasonable and Prudent Alternative (RPA) for this Federal action, over 6,500
development projects were reviewed in Monroe County. During this effort, it became evident
that the NFIP action would have an insignificant impact on several federally listed species
including the roseate tern, loggerhead sea turtle, green sea turtle, leatherback sea turtle, hawksbill
sea turtle, Kemp's ridley sea turtle, piping plover, American crocodile, and Garber's spurge in
Monroe County. In view of this, and for the aforementioned reasons, the Service, on behalf of
FEMA, has determined these species are not likely to be adversely affected by the action. In
addition, critical habitats for the piping plover and American crocodile are not likely to be
adversely affected by the action. Consequently, these species and their critical habitats will not
be considered further in this consultation.
M
Therefore, the species evaluated in this BO include the: eastern indigo snake, Key deer, Key
Largo woodrat, Key Largo cotton mouse, Schaus swallowtail butterfly, Key tree -cactus, Stock
Island tree snail, Lower Keys marsh rabbit, and silver rice rat. Critical habitat for the silver rice
rat will also be evaluated. Appendix 1 includes a listing of land cover classifications where these
species may occur (based on Monroe County's 2009 Land Cover Classifications).
Candidate ,Species
Candidate species are considered for possible addition to the List of Endangered and Threatened
Species. The Service has on file sufficient information on biological vulnerability and threat(s)
to support a proposal to list, but issuance of a proposed rile is precluded by higher priority listing
actions. [61 FR 7596-7613 (February 28, 1996)] We include them here in an effort to: 1) clarify
the candidate species that may be in the action area, and 2) explore ways to modify the action to
reduce or remove adverse effects to the species. While the Act does not protect candidate
species, the Service is notifying FEMA that candidate species may occur in the action area. As
such, we will not conduct a jeopardy analysis of these candidate species, but we will provide
conservation recommendations to reduce adverse effects and/or request studies as appropriate.
These candidate species may later be proposed for listing, requiring future consultation if
proposed actions are likely to jeopardize the continued existence of such species. We encourage
FEMA to address candidate species in their Federal programs. Addressing candidate species at
this stage of consultation provides a focus on the overall health of the local ecosystem and may
avert the likelihood that they will require the protection of the Act in the future. Appendix 2
provides a more detailed assessment of the candidate species and includes a listing of current
land cover classifications where these species may occur. Current candidate species in the
Florida Keys are:
Bartram's hairstreak butterfly (,Sti�vmon acis bartrami);
Big Pine partridge pea ((hamaecrista lineata kevensis);
Blodgett's silverbush (Argvthamnia blodgettii);
Cape Sable thoroughwort (( hromolaena frustrate);
Everglades bully (,Sideroxvlon reclinatum austrofloridense);
Florida leafwing butterfly(Anaea troglodvta floridalis);
Florida prairie clover (Daley carthagenensis. loridana);
Florida semaphore cactus (('onsolea corallicola);
Miami blue butterfly (('vclargus ( Hen iargus) thomasi bethunebakeri);
Red knot (('alidris canutus riafa);
Sand flax (Linum arenicola); and
Wedge spurge (( hamaesvice deltoidea serpvllum)
This BO incorporates information from the June 16, 1997, BO, April 18, 2003, amendment, and
the August 8, 2006, BO, which was not implemented. It also incorporates documentation
provided by FEMA, the State of Florida Department of Community Affairs (FDCA), Monroe
County, and the cities of Islamorada, Marathon, Layton, Key Colony Beach, and Key West. The
BO includes information compiled through telephone conversations, field investigations, and
other sources of information. A complete administrative record of this consultation is on file at
our South Florida Ecological Services Office in Vero Beach, Florida.
k,
Consultation History
On August 25, 1994, the Court filed a memorandum opinion and final declaratory judgment for
Florida Kev Deer v. Vicknev (Case No. 90-10037-CIV-MOORS). The Court directed FEMA to
consult with the Service to determine whether implementation of the NFIP in Monroe County,
Florida was likely to jeopardize the continued existence of the Florida Key deer.
On July 25 and 26, 1995, the Service and FEMA met to discuss the NFIP, its administration, its
implementation, and the section 7 consultation on the program. During this meeting, the two
agencies outlined their roles, responsibilities and duties during the consultation. During this
meeting, the Service outlined the section 7 process, as it would apply to the FEMA consultation.
In particular, the Service recommended including all threatened and endangered species in the
consultation, rather than just the Key deer, to avoid having to re -initiate consultation on the other
threatened and endangered species later.
On September 7, 1995, the Service sent a letter to FEMA, which summarized the July 1995
meeting and identified the species that the NFIP "may affect". This letter initiated formal
consultation on the NFIP. In the letter, the Service asked FEMA for an extension of the
regulatory consultation period due to the complexity of the consultation. The Service also asked
FEMA for additional information that would help with the consultation.
On October 5, 1995, the Service spoke with several FEMA representatives to discuss the status
of the consultation. FEMA representatives confirmed that they still needed to provide the
information the Service requested in its September 7, 1995, letter. They explained that a large
number of severe weather emergencies along the Gulf Coast States during the fall of 1995
caused the delay.
On January 25, 1996, FEMA sent a letter to the Service explaining the delay in responding to the
Service's September 7, 1995, letter. In their letter, FEMA wrote that they understood the
consultation to be "the admission of communities into the NFIP as well as the suspension and
readmission of such communities, under 44 CFR part 59". FEMA agreed to extend the 135-day
consultation period due to the importance of the consultation and agreed to help the Service
gather and evaluate information during the consultation.
From April 29 through May 1, 1996, the Service held a meeting to discuss the recovery needs of
the threatened and endangered species of the Florida Keys. Experts on threatened and
endangered species in the Florida Keys and managers of public and private lands important to
those species attended the meeting. The Service used this meeting to gather the best scientific
and commercial information available on the biology and status of the threatened and
endangered species of the Keys, opportunities to recover them, and best management practices to
promote their recovery. The meeting's attendees also discussed how FEMA actions would affect
listed species.
On May 8, 1996, the Service met with representatives from FEMA and the National Wildlife
Federation (NWF) to discuss the status of the section 7 consultation on the NFIP. The Service
6
explained that the scope of the consultation included 10 of the 19 threatened and endangered
species in the Florida Keys, rather than only the Key deer. The Service also presented a schedule
for completing the draft BO and agreed to provide a draft document to both FEMA and NWF by
July 15, 1996. The Service agreed to meet in Washington D.C. on September 10, 1996, to
review the conclusions in the BO and to develop any RPA, incidental take statements, and
conservation recommendations that might be appropriate.
On July 10, 1996, the Service requested from FEMA and NWF a time extension to provide a
draft BO. A new date of July 22, 1996, was set.
On July 22, 1996, the Service provided copies of the draft BO to FEMA and NWF.
On August 23, 1996, the Service received written comments from FEMA on the draft BO. The
most significant concern that FEMA identified was that the draft BO did not accurately describe
FEMA's administration of the NFIP in Monroe County, Florida. Furthermore, FEMA believed
this inaccuracy resulted in overstating their role in the decline of listed species in Monroe
County.
On September 10 and 11, 1996, the Service met with representatives of FEMA and the
Department of Justice (DOJ) to review FEMA's comments on the draft BO and begin
discussions on an appropriate Reasonable and Prudent Alternative (RPA). The Service agreed tc
incorporate the changes recommended by FEMA in their comment letter. FEMA agreed to
provide the Service with a description of their administration of the NFIP in Monroe County, for
incorporation into the revised draft BO.
On September 12, 1996, the Service met with representatives of FEMA, NWF, Department of
the Interior (DOI) and DOI to discuss the status of the section 7 consultation and receive input
from the NWF about RPAs.
On October 3, 1996, the Service, FEMA, NWF, DOJ, and DOI held a conference call to discuss
the status of the section 7 consultation.
On June 16, 1997, the Service issued the BO on FEMA's administration of the NFIP in Monroe
County, Florida. The Service concluded that the continued administration of the NFIP was likely
to jeopardize the continued existence of the Garber's spurge, Key deer, Key Largo cotton mouse,
Key Largo woodrat, Key tree -cactus, Lower Keys marsh rabbit, Schaus swallowtail butterfly,
rice rat, and Stock Island tree snail; and was not likely to jeopardize the eastern indigo snake.
The Service also concluded that critical habitat for the rice rat was likely to be destroyed or
adversely modified.
In June and July 1998, the Service met with representatives of Monroe County in Marathon to
discuss implementing the RPA. FEMA agreed to hire consultants to produce a list of real estate
parcel numbers located within listed species habitat or potential habitat. Individuals requesting
building permits in those areas are required to consult with the Service. The Service initiated a
system to review such permits and their effects on habitat (Permit Review System).
7
In an August 5, 1998, letter from the Service to Monroe County, the Service identified exempted
actions, i.e., those caused by natural disaster or calamity or that did not take place in native
habitat, not requiring coordination with the Service.
On September 24, 2002, the Service and FEMA met to discuss and evaluate compliance with the
1997 BO. The agencies met with representatives from local governments to review a suite of
projects requiring Service technical assistance/coordination. The agencies identified no
deficiencies in reviewing content, timeliness, or review consistency.
On April 18, 2003, the Service issued its amended BO for the effects of the NFIP on threatened
and endangered species in the Keys. In that BO, the Service concluded that full implementation
of the NFIP in Monroe County would jeopardize the continued existence of several species
without a site -specific assessment for proposed developments affecting suitable habitat where
flood insurance is available. The Service added the American crocodile to the species evaluated
in the BO.
In a February 22, 2005, letter from the Service to Monroe County, the Service identified
exempted actions that would not require coordination with the Service, e.g., those caused by
natural disaster, or that did not take place in native habitat.
On March 29, 2005, Judge K. Michael Moore, United States District Court, Southern District of
Florida, Miami, Florida, in the case of Florida Key Deer et al. versus Michael D. Brown, et al.,
granted the plaintiffs' Motion of Summary Judgment. The focus of the riling was the Service's
2003 BO and its RPAs. The Court determined:
(1) that the Service's preparation of the 2003 BO amendment was arbitrary, capricious or
otherwise not in accordance with the law;
(2) that the 2003 RPA failed to protect against jeopardy;
(3) that FEMA's failure to engage in any independent analysis of the sufficiency of the
2003 BO amendment and the 2003 RPA was arbitrary, capricious or otherwise not in
accordance with the law; and
(4) that FEMA was in violation of section 7(a)(1) of the Act for failing to develop and
implement a conservation program for the Listed Species.
In an August 18, 2005, letter from the Service to Monroe County, the Service identified other
exempted actions that would not require coordination with the Service, e.g., those caused by
natural disaster; fences in accordance with Monroe County deer -friendly fence guidelines, or that
did not take place in native habitat.
On September 9, 2005, Judge Moore granted the plaintiffs' motion for an injunction against
FEMA issuing flood insurance on any new residential or commercial developments in suitable
habitats of federally listed species in Monroe County, Florida. The Court also ordered that the
Service submit a new BO within 9 months and subsequently extended the deadline another 2
93
months. The Court also retained jurisdiction until the defendants complied with the March 29,
2005, Order. As discussed below, FEMA and the Service appealed portions of the March 29,
2005, and September 9, 2005, riling (Appeal filed in February 2006).
On October 20, 2005, the Service sent Monroe County and affected municipalities a letter
explaining the riling and informing them that the Court riled the 2003 RPA(c) was invalid.
RPA(c) required Monroe County to consult with the Service before issuing building permits in
suitable habitat for threatened and endangered species. Therefore, Monroe County was no
longer required to consult with the Service before issuing building permits in suitable habitat and
the Service no longer needed to provide technical assistance review of building permit
applications.
On January 26, 2006, the Service sent FEMA a request for additional information to assist the
Service in writing a new BO evaluating the effects of the flood insurance program on listed
species in the Florida Keys.
On January 31, 2006, the Service received email correspondence from Mr. Morgenstern,
plaintiffs' attorney, concerning Tier and habitat maps provided to the Service from Monroe
County.
On February 1, 2006, the Service received email correspondence from Mr. Morgenstern,
plaintiffs' attorney, concerning habitat map designations for revisions to FWS suitable habitat
maps.
On February 10, 2006, FEMA and the Service filed an appeal with the United States Court of
Appeals for the Eleventh Circuit arguing that:
(1) Section 7(a)(2) of the ESA does not apply to FEMA's administration of the NFIP;
(2) Section 7(a)(2) of the ESA does not require FEMA to perform an independent
analysis of the Service's proposed "RPAs" before adopting them;
(3) Section 7(a)(1) of the ESA does not require agencies to develop species- and
location -specific programs for the conservation of listed species; and
(4) The District Court exceeded its authority by issuing an injunction that is allegedly
inconsistent with the ESA and the National Flood Insurance Act (NFIA) of 1968 (42
U.S.C. 4001, et al).
On February 14, 2006, the Service notified Monroe County that due to the March 29, 2005,
Summary Judgment and the September 9, 2005, injunction and direction by the Court for the
Service to submit a new BO within 9 months, Monroe County was no longer required to consult
with the Service under RPA(c) of the 2003 BO.
On February 16, 2006, the Service received email correspondence from FEMA concerning status
of additional data request to FEMA and County's responses.
9
On February 17, 2006, the Service received additional data on Monroe County's cat control
program.
On February 17, 2006, the Service received additional information from FEMA and from
Monroe County and municipalities.
On March 2, 2006, the Service sent an email request to Monroe County and FEMA requesting
update on data specific to outstanding FEMA BO questions.
On March 22, 2006, the Service and FEMA met to discuss and evaluate the status of the BO, the
status of the requested additional information, and actions necessary to comply with the Courts
order.
On March 24, 2006, the Service received email correspondence from FEMA documenting action
items needing FEMA's response.
On March 31, 2006, the Service received email correspondence from Monroe County
documenting additional data needs on parcel list.
On April 4, 2006, the Service requested via email clarification of the ROGO (Rate of Growth
Ordinance) allotments for Monroe County and individual municipalities.
On June 20, 2006, the Service received, via email, the Village of Islamorada's threatened and
endangered species analysis.
On June 25, 2006, the Service received via email the 2006 Monroe County Cat Control
Ordinance.
On August 8, 2006, the Service issued a new BO, which found the NFIP would likely jeopardize
five Florida Keys species (four animals and one plant).
On August 8, 2006, the Service received FEMA's letter of acceptance of the RPA referenced in
the Service's August 8, 2006, jeopardy BO.
On August 8, 2006, the Service and FEMA had a conference call to discuss implementation of
the RPAs referenced in the BO, feral cats, and settlement options.
On August 17, 2006, the Service and FEMA had a conference call to discuss implementation of
the RPAs referenced in the BO, feral cats, and a settlement proposal.
On September 13, 2006, the Service and FEMA met to discuss next steps to implement the RPAs
referenced in the BO and actions necessary to comply with the Court's order.
On October 6, 2006, the Service provided to FEMA and the Court, the list of properties within
potentially suitable habitat of affected species referenced in the August 8, 2006, BO.
10
On October 11, 2006, the Service received a confirmation email from FEMA of the transmittal
of the list of properties in potential suitable habitat to Monroe County and municipalities.
On October 31, 2006, the Service received an email from plaintiffs concerning list and mapping
discrepancies in the Service's August 8, 2006, BO.
On November 1, 2006, the Service received an email from FEMA addressing other county and
state agency responsibilities for compliance with NFIP policies.
On November 3, 2006, the Service received via email, the plaintiffs' October 20, 2006, review of
list and mapping discrepancies.
On March 21, 2007, the Service received correspondence from FEMA referencing receipt of
correspondence from the State of Florida Department of Education to the State of Florida
Education Facility Planners in reference to constriction permits affecting listed species.
On April 1, 2008, the United States Court of Appeals for the Eleventh Circuit affirmed the
judgment of the District Court and concluded that:
(1) Section 7(a)(2) of the Act does apply to FEMA's administration of the NFIP.
(2) FEMA need not conduct any independent analysis of the proposed alternatives.
However, where new information arises between the proposal and the adoption, an
acting agency would be required to consider that information prior to acting. The
decision to adopt is particularly susceptible to challenge absent consideration of the
new evidence.
(3) Section 7(a)(1) of the Act does require agencies to develop species- and location -
specific programs for the conservation of listed species; and
(4) The District Court did not err in issuing an injunction.
On May 2 and 5, 2008, the Service and DOJ conducted a conference call with plaintiffs' to
discuss outstanding issues concerning the Service's 2006 BO.
On May 7, 2008, the Service received via email, additional comments from plaintiffs on 2006
BO mapping issues, and cat buffers.
On May 9, 2008, the Service received via email, additional comments from plaintiffs on 2006
BO mapping issues, and marsh rabbit habitat.
On May 14, 2008, the Service received via email, additional comments from plaintiffs on 2006
BO mapping issues, and tropical hardwood hammock.
11
On July 28, 2008, the Service, FEMA, and DOJ met with NWF to discuss outstanding issues
with the revisions of the 2006 BO, outstanding mapping questions, and enforceability of the RPA
by FEMA.
On August 2, 2008, the Service and FEMA participated in an open forum meeting hosted by
Representative Ros-Lehtinen in Marathon, Florida to receive and respond to questions
concerning ongoing FEMA flood insurance in the Florida Keys.
On August 7, 2008, the Service, FEMA, and DOJ met with NWF to discuss outstanding issues
with the revisions of the 2006 BO related to mapping and enforceability of the RPA by FEMA.
On August 25, 2008, the Service received correspondence from Everglades Law Center in
reference to the Service's 2006 BO.
On September 14, 2008, the Court ordered the parties to notify the Court by December 3, 2008,
of the status of the settlement regarding the 2006 BO.
On October 24, 2008, the Service received the proposed Geospatial Land Cover mapping
schedule for Monroe County.
On December 3, 2008, the Service and FEMA, through coordination with DOJ and the plaintiffs
filed a joint motion to withdraw the 2006 BO and to file a new BO.
On February 26, 2009, the Court ordered the Service to submit a new BO by March 31, 2010.
Between February 2009 and January 2010, the Service coordinated with FEMA, FDCA, the
Florida Department of Environmental Protection (FDEP), Monroe County, and local
municipalities, and the plaintiffs on additional information regarding land acquisition, mapping
and permits.
On October 5, 2009, the Service sent FEMA a letter requesting additional information to assist
the Service in writing a new BO evaluating the effects of the flood insurance program on listed
species in the Florida Keys.
On January 8, 2010, the Service received comments from Mr. Kruer, biologist for plaintiffs, on
2009 draft potential suitable habitat maps.
On March 28, 2010, a 30-day extension of the filing deadline for the BO was granted by the
Court.
BIOLOGICAL OPINION
DESCRIPTION OF PROPOSED ACTION
12
The action addressed in this BO is the administration of the NFIP in participating communities in
Monroe County, Florida, by the Department of Homeland Security's FEMA. The NFIP, created
in 1968, is a Federal program enabling property owners in participating communities (as defined
by 44 CFR Section 59.1) to purchase flood insurance in exchange for a participating State and
community adopting floodplain management regulations that reduce future flood damages. If a
community adopts and enforces floodplain management regulations to reduce future flood risk to
new constriction in floodplains, the Federal government will make flood insurance available
within the community. Community participation in the NFIP is voluntary.
The Flood Disaster Protection Act of 1973 (42 U. S.C. 4002)(the 1973 Act) requires property
owners to purchase flood insurance as a condition of receiving any Federal or federally related
financial assistance to acquire or improve land or strictures that are located in areas identified as
having special flood hazards. The 1973 Act prohibited Federal officers or agencies from
approving financial assistance for acquisition or constriction in areas identified as having special
flood hazards unless the stricture is covered by flood insurance (42 U.S.C. 4012a).
Furthermore, Section 202(a) of the 1973 Act prohibits Federal officers or agencies from
approving any form of loan, grant, guaranty, insurance, payment, rebate, subsidy, disaster
assistance loan or grant for acquisition or constriction within the Special Flood Hazard Areas
(SFHAs) of non -participating communities (42 U.S.C. 4106). This prohibition would, for
example, prevent issuance of mortgage loans in non -participating communities that are
guaranteed by the Department of Veterans Affairs, insured by the Federal Housing
Administration, or secured by the Rural Economic and Community Development Services. In
the case of disaster assistance under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121-5206) (Stafford Act), this prohibition applies to assistance in
connection with a flood.
The above requirement to purchase flood insurance as a condition of Federal or federally related
financial assistance to acquire or improve land or strictures in SFHAs is referred to as the
Mandatory Flood Insurance Purchase Requirement (sometimes also referred to in this BO as the
mandatory purchase requirement).
This BO is not an evaluation of the effects of the NFIP on threatened and endangered species in
SFHAs throughout the United States. Instead, this is a programmatic consultation limited to the
NFIP as administered in participating communities in Monroe County, Florida.
The NFIP reduces the risk of flood damage by requiring States and local governments to adopt
and enforce NFIP floodplain management regulations as a condition of making NFIP flood
insurance available in the community. While FEMA is responsible for identifying the flood
hazard, the participating communities in Monroe County, Florida are responsible for
administering floodplain management regulations that meet or exceed the minimum
requirements of the NFIP. The administration of the NFIP generally involves the following
sequence of actions for new strictures and substantially improved strictures:
(1) FEMA prepares Flood Insurance Rate Maps and provides these flood maps to
participating communities in Monroe County. When FEMA develops new or revises
13
existing flood hazard data during a flood study process, FEMA also provides this flood
hazard data to communities.
(2) In order to participate in the NFIP, communities in Monroe County must adopt and
enforce floodplain management regulations that meet or exceed the minimum
requirements of the NFIP.
(3) Prior to issuing building permits for new buildings and substantially improved
buildings in SFHAs, participating communities in Monroe County review constriction
plans to ensure compliance with regulatory requirements the community adopted to
participate in the NFIP; for example, Monroe County checks development plans to ensure
they are consistent with base flood elevations.
(4) Communities must review proposed development to insure that applicants obtain all
necessary permits required by Federal or State law.
(5) Once the community has issued a permit, the development can begin.
(6) When the owner of the permitted stricture applies for federally regulated financing,
he is generally required under the mandatory purchase requirement to purchase flood
insurance; in the Keys, most of those insurance policies are issued under the NFIP. The
National Flood Insurance Act of 1968, as amended, requires that the program charge full
actuarial rates (non -subsidized rates) reflecting the complete flood risk on new strictures
or substantially improved strictures.
Action Area
The Service considers the action area as the Keys, extending from Key Largo south to Key West
in Monroe County, Florida (Figure 1). The mainland portion of Monroe County is not
considered in this BO because it is almost entirely contained within Everglades National Park or
Big Cypress National Preserve and not subject to development and, hence, the NFIP.
To analyze the effects of the action, we defined the boundaries of the action area more precisely
than in the previous BOs. We used Geographic Information System (GIS) analyses of the spatial
distribution of threatened and endangered species in the Keys, vegetative land cover, and areas in
the Coastal Barrier Resources System (CBRS) and Otherwise Protected Areas (OPA) designated
by the Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.) (CBRA). We used GIS analyses
to identify those areas which: 1) are cleared for residential, commercial, or other purposes; (2)
may support threatened and endangered species or include designated critical habitat; or (3)
could qualify for the NFIP in Monroe County. We excluded areas included in CBRS from the
action area because FEMA does not issue flood insurance in those locations. We also exclude
lands owned by the state of Florida because NFIP Regulations list Florida under Part 75 as self -
insured. We excluded non -Federal properties covered by Incidental Take Permits (ITP)
authorizing incidental take in accordance with Section 10 of the Act, since incidental take for
adverse species effects has already been addressed by the Service. We also excluded Federal
14
lands since consultation with the Service under section 7of the Act is required and is a separate
action.
The action area is composed of six political entities each with their own government and land use
regulations: unincorporated Monroe County, the Village of Islamorada, the City of Layton, the
City of Key Colony Beach, the City of Marathon, and the City of Key West. Unincorporated
Monroe County includes the islands of Key Largo, and the Lower Keys from Big Pine Key
through Stock Island. The Village of Islamorada includes Plantation Key through Lower
Matecumbe Key. Layton includes a section of Long Key, and Marathon includes Grassy Key
through Vaca Key (Marathon). Key West includes all of the island of Key West and the northern
half of Stock Island. Both the Village of Islamorada and the City of Marathon have incorporated
since our original 1997 FEMA BO was completed.
Description of Action Area
The Keys are a 130-mile arc of islands extending from Soldier Key to Key West. The Keys are
divided into three physiographic zones characterized by their shape, orientation, and underlying
rock formations: the Upper Keys (Soldier southeast to Newfound Harbor Keys), the Lower Keys
(East Bahia Honda to Key West), and the distal atolls (Boca Grande Key Group, Marquesas
Keys and Dry Tortugas) (Hoffeister and Multer 1968). The distal atolls are protected islands that
are more isolated from the other two groups of Keys and are not considered in this BO. For a list
of habitats used by the nine listed species addressed in this BO, see Appendix 1.
The Upper Keys consist of long narrow islands situated in a northeast to southwest direction and
parallel the reef tract. These elevated, almost continuous islands are composed of Key Largo
limestone. The Upper Keys are aligned in such a way that they almost block direct tidal
interaction between Florida Bay and the reef tract, thus creating two different environments
(Schomer and Drew 1982). Water flow was further restricted when an overseas railroad was
built from 1904 to 1907. Over 17 miles of bridges and 20 miles of causeways were built where
natural water passages previously existed.
The Lower Keys are a triangular group of islands lying at right angles to the Upper Keys in a
northwest -southeasterly direction. The directional movement of tidal scour causes their
orientation, which is a result of the tidal time and height differences between the Gulf of Mexico
and the Straits of Florida. Several channels cut between the Lower Keys connect the Gulf and
Florida Bay. These passageways allow for greater water exchange between the two water bodies
than occurs in the Upper Keys.
Most of the land area in the Keys lies between 2.0 to 3.0 feet above high tide. Two locations in
the Upper Keys have an elevation of 16 feet or more. Here, topography of the islands change
from the typically flat island to elongated with southeast and northwest sides sloping to the
Atlantic Ocean and Florida Bay.
Intertidal flats border the islands and give way to shallow water areas that gently slope to deeper
water. Florida Bay lies beyond the flats on the northwest side of the Keys. Seaward towards the
Straits of Florida, a band of living reefs parallels the coastline.
15
Overview of the NFIP
In 1968, the United States Congress passed, and the President signed into law, the National
Flood Insurance Act (42 U.S.C. 4001 et seq.), which created the NFIP. The primary purposes of
the 1968 Act creating the NFIP are to:
1. Better indemnify individuals for flood losses through insurance;
2. Reduce future flood damages through State and community floodplain
management regulations; and
3. Reduce Federal expenditures for disaster assistance and flood control.
Section 1315 of the 1968 Act, as amended, is a key provision that prohibits FEMA from
providing flood insurance unless the community adopts and enforces floodplain management
regulations that meet or exceed the minimum criteria established in the NFIP regulations.
Participation in the NFIP is contingent upon an agreement between local communities and the
Federal government. If a community adopts and enforces floodplain management regulations to
reduce future flood risks to new and substantially improved strictures in SFHAs, the Federal
government will make flood insurance available within the community as a financial protection
against flood losses. Flood insurance is to provide an alternative to disaster assistance to reduce
the escalating costs of this assistance for the repair of flood -damaged strictures and replacement
of their contents. Over 21,000 communities currently participate in the NFIP nationwide. A
community's decision to participate in the NFIP is voluntary.
In addition to providing flood insurance and reducing flood damages through floodplain
management regulations, another important component of the NFIP is to identify and map the
nation's floodplains. Mapping flood hazards creates broad -based awareness of the flood hazards
and provides the data needed for floodplain management programs and to actuarially rate new or
substantially improved strictures for flood insurance. The flood maps provide information on
where flood insurance is required under the Mandatory Flood Insurance Purchase Requirement.
As already discussed, because of the Mandatory Flood Insurance Purchase Requirement,
federally regulated lending institutions may not make, increase, extend, or renew any loan
secured by improved real estate located in a SFHA in a participating community unless the
secured building and any personal property securing the loan are covered by flood insurance.
Federally regulated lending institutions can make conventional loans in a SFHA of a non-
participating community. However, lending institutions are required to notify the purchaser or
lessee of improved real property, situated in a SFHA, whether Federal disaster assistance will be
available when such property is being used to secure a loan that is being made, increased,
extended, or renewed.
Federal officers or agencies cannot approve any form of loan, grant, guaranty, insurance,
payment rebate, subsidy, disaster assistance loan or grant, for acquisition or constriction
purposes within a SFHA in a participating community unless the building and any personal
property to which such financial assistance relates is covered by flood insurance.
There are significant Federal financial limitations in communities with SFHAs that do not
participate in the NFIP. Federal officers or agencies cannot approve any form of loan, grant,
16
guaranty, insurance, payment, rebate, subsidy, or disaster assistance loan or grant, for acquisition
or constriction purposes within a SFHA of a non -participating community. For example, this
requirement prohibits mortgage loans guaranteed by the Department of Veterans Affairs, insured
by the Federal Housing Administration, or secured by the Rural Economic and Community
Development Services. In the case of disaster assistance under the Stafford Act, this prohibition
only applies to assistance in connection with a flood.
Flood Insurance Rate Maps
FEMA publishes maps designating SFHAs and the degree of flood risk in those areas. A FEMA
Flood Insurance Rate Map (FIRM) identifies the SFHA in each community. The limits of the
SFHA depend on the area inundated during the Base Flood (a flood having a 1 percent chance of
being equaled or exceeded in any given year; also referred to as a 100-year flood). FEMA
conducts Flood Insurance Studies (FISs) that estimate both hydrologic and hydraulic conditions
to identify SFHAs and determine Base Flood Elevations (BFE).
States and communities use the flood maps for their floodplain management programs. They use
them for calculating flood insurance premiums and for determining whether the law requires
property owners to obtain flood insurance as a condition of obtaining Federal or federally related
financial assistance under the Mandatory Flood Insurance Purchase Requirement.
SFHAs are mapped as either A zones or V zones. Areas within river and lake floodplains and
coastal floodplains landward of V zones are identified on the flood maps with one of the A zone
designations (AE, Al-30, AO, AH, or A). V zones (Zones VE, V1-30, V), also known as Coastal
High Hazard Areas, are mapped along the nation's coastlines. V zones, which include high
velocity flows, breaking waves, and often debris, contain severe risks that present special
challenges in ensuring that new development does not result in increased flood damages.
The FIRM maps for Monroe County were initially issued on June 20, 1970. The most recent
version of the FIRM maps is a countywide format for Monroe County and all the incorporated
areas dated February 18, 2005. The FIRM maps for the Keys currently include AE, A0, VE, and
X zones (Table 1).
Table 1: Codes for zones and their definitions — FEMA Flood Insurance Rates Maps
Code
Definition
AE
Base Flood Elevations have been determined. Mandatory Flood Insurance
Purchase Requirements apply.
Zone AO Flood Depths of 1 to 3 feet (usually sheet flow on sloping terrain);
AO
average depths determined. Mandatory Flood Insurance Purchase Requirements
apply.
VE
Coastal flood zone with velocity hazard (wave action); Base Flood Elevations
determined. Mandatory Flood Insurance Purchase Requirements apply.
X
These are also areas of 0.2 percent annual chance flood; areas of 1 percent
(mapped as a
annual chance flood with average depths of less than 1 foot or with drainage
shaded area)
areas less than 1 square mile; and areas protected by levees from 1 percent
17
annual chance flood. Flood insurance is not required, but is available.
X
Areas determined to be outside the 0.2 percent annual chance floodplain. Flood
(mapped as
insurance is not required, but is available.
an unshaded
area)
(101?11?111111 tV Part1 cipat1 on
Before FEMA can issue flood insurance policies, the community must participate in the NFIP.
A "community" is a governmental body with the statutory authority to enact and enforce zoning,
building codes, subdivision, and other control measures. The authority of each unit of
government varies by State. Eligible communities can include cities, villages, towns, townships,
counties, parishes, States, and Indian tribes (44 CFR 59.1). When the community chooses to join
the NFIP, it must adopt and enforce minimum floodplain management requirements for
participation. It should apply the criteria uniformly to all privately and publicly owned land
within the designated SFHA in the community. The complete requirements for community
participation in the NFIP are in 44 CFR 60.1-60.5. Additionally, communities may and are
encouraged to adopt floodplain management criteria more restrictive than the NFIP minimum
criteria.
As a part of the 1968 Act creating the NFIP, Congress prohibited FEMA from issuing flood
insurance to property owners within a community that had not adopted at least the minimum
floodplain management criteria established under the NFIP. If local floodplain regulations are
not in place, or if community regulations do not meet the minimum NFIP criteria, a community
cannot participate in the NFIP. Similarly, if a community fails to maintain its floodplain
regulations or adopts regulations that do not meet established guidelines, suspension from the
program is mandated.
The applicable minimum criteria for new strictures vary depending on the level of floodplain
analysis performed within the community. For each additional level of detail provided in the
Flood Insurance Study (FIS), additional minimum requirements for community floodplain
management regulations are established. NFIP regulations contain specific elevation and
structural performance requirements for new buildings constricted within the SFHA. NFIP
minimum criteria establish different requirements for properties in A zones and V zones, but
specific elevation and structural performance requirements are included for all buildings in the
SFHA. Included in the V Zone standards is the requirement that prohibits alteration of natural
features, such as frontal sand dunes and mangrove stands, which act to reduce flooding. These
requirements form the foundation of floodplain management in a community. Many states and
individual communities have adopted more restrictive regulations than NFIP minimum
requirements.
Existing development must meet NFIP minimum requirements only in specific situations.
Buildings constricted on or after the date of the initial FIRM, or after December 31, 1974,
whichever is later, are actuarially rated for flood insurance (these buildings are generally referred
to as post -FIRM). Existing pre -FIRM buildings (built before the initial FIRM maps) must meet
NFIP criteria only when the building is "substantially improved" or "substantially damaged."
18
This means that if the cost of improvements or the cost to repair the damage equal to or exceeds
50 percent of the market value of the building, the building must be brought to current floodplain
management standards — the same requirements that apply to new constriction.
The community must ensure that any strictures built in the SFHA include materials and methods
that will minimize future flood damage and will not adversely impact other development. In
addition to requiring permits for strictures, a participating community in the NFIP must also
require permits for all development in the SFHA, including, but not limited to, filling, grading,
paving, and dredging.
The floodplain management requirements within the SFHA are designed to prevent new
development from increasing the flood threat and to protect all strictures from anticipated flood
events. Although these NFIP requirements function as a baseline for floodplain management for
many communities, the ultimate power to regulate development — including the provision and
approval of permits, inspection of property, and citing violations — remains in the communities,
not the Federal government.
FEMA ensures compliance with the established NFIP regulations by reviewing and approving
each community's adopted floodplain management regulations and maintaining a dialogue with
the community. Through Community Assistance Visits (CAVs) and Community Assistance
Contacts (CACs), FEMA, and states on behalf of FEMA, oversee community activities and
monitor implementation of the program. If, in reviewing a community's activities, FEMA
identifies program deficiencies or violations, FEMA has the option to place the community on
formal probation. Initially, FEMA will notify the community of these issues and provide the
community with time to rectify them. If the community makes adequate progress in addressing
the issues within a specified period, it will avoid probation. If the community does not address
the issues, formal probation begins (at a minimum probation lasts for 1 year and extended in 1-
year increments).
During the time a community is on probation, new policies are allowed to be sold and existing
policies renewed, but policyholders are surcharged a $50 additional premium. If, during the
probationary period, the community does not address FEMA's concerns, the community can be
suspended from the NFIP. During suspension, existing policies are renewed and new policies
cannot be sold. In addition, the Federal financial limitations described above apply.
In 1990, FEMA established the Community Rating System (CRS) as an incentive program that
provides flood insurance premium reductions to communities that go beyond the minimum
requirements of the NFIP. The National Flood Insurance Reform Act of 1994 codified the CRS.
If communities take additional actions to reduce flood losses, facilitate accurate insurance
ratings, and promote awareness of flood insurance, they can reduce their insurance rates through
the Community Rating System.
Through the CRS, communities can receive credit for:
19
(1) protecting natural floodplain functions, such as providing flood storage, reducing
erosion, improving water quality, and providing habitat for diverse species of
flora and fauna;
(2) advising people about flood hazards, flood insurance, and ways to reduce flood
damage;
(3) mapping additional areas,
(4) preserving open space;
(5) enforcing higher regulatory standards, and managing storm water;
(6) addressing repetitive losses, relocating or retrofitting flood -prone strictures, and
maintaining drainage systems; and
(7) implementing flood -preparedness activities, such as flood warning, levee safety,
and dam safety.
Flood Insurance
Flood insurance coverage is available to all owners and occupants of insurable property (a
building and/or its contents) in a community participating in the NFIP. Almost every type of
walled and roofed building that is principally above ground and not entirely over water may be
insured if it is located in a participating community. In the 1968 Act, to encourage participation
in the NFIP by communities and the purchase of flood insurance by individuals, Congress
provided subsidized insurance premiums for those buildings constricted prior to the issuance of
a FIRM (pre -FIRM buildings).
The National Flood Insurance Act of 1968, as amended, requires that full actuarial rates (non -
subsidized rates) reflecting the complete flood risk be charged on all buildings constricted or
substantially improved on or after the effective date of the initial FIRM for the community or
after December 31, 1974, whichever is later. Substantial improvement means "any
reconstruction, rehabilitation, addition, or other improvement of strictures, the cost of which
equals or exceeds 50 percent of the market value of the stricture before the "start of constriction
of the improvement." When the U.S. Congress created the NFIP, it recognized that insurance for
"existing buildings" constricted before a community joined the NFIP would be prohibitively
expensive if the Federal government did not subsidize the premiums. Congress also recognized
that individuals who did not have sufficient knowledge of the flood hazard built most of these
flood -prone buildings. Thus, in exchange for the availability of subsidized insurance for existing
buildings, communities are required to protect new constriction and substantially improved
strictures through adoption and enforcement of floodplain management regulations.
FEMA works closely with the insurance industry to facilitate the sale and servicing of flood
insurance policies. Property owners in NFIP communities can buy flood insurance in two ways:
1) through State -licensed property and casualty insurance agents and brokers who deal directly
20
with FEMA; or 2) through private insurance companies with a program created in 1983 known
as the "Write Your Own" program. All companies offer identical coverage and rates as
prescribed by the NFIP. Some private flood insurance is available particularly for commercial
and industrial property. The NFIP provides most of the flood insurance coverage, however. In
early 2006, there were about 4.8 million flood insurance policies in force nationwide. In
December 2009, there were about 5.5 million policies, an increase of about 14 percent.
A purchaser of flood insurance must wait 30 days from the date the application for insurance is
completed and the premium presented before the policy becomes effective. A change in the
waiting period from 5 days to 30 days was included as part of the National Flood Insurance
Reform Act of 1994 to address a problem encountered where individuals with properties on
larger rivers could wait until properties many miles upriver were flooding before purchasing
coverage. There are some exceptions to the 30-day waiting period, such as when a new flood
insurance policy is required in connection with making a federally backed loan.
Individuals can purchase the following amounts of coverage:
(1) Residential: $250,000 in building coverage and $100,000 in contents coverage.
(2) Non-residential: $500,000 in building coverage and $500,000 in contents
coverage.
The insured must file a Proof of Loss within 60 days of the loss. Under all NFIP policies, the
insured pays a portion of the loss through the application of a deductible.
Coastal Barriers Resources Act
The Coastal Barriers Resources Act of 1982 (CBRA), as amended (16 U.S.C. 3501 etseq.)
established the John H. Chafee Coastal Barrier Resources System (CBRS), which is a system of
undeveloped coastal barriers along the Atlantic and Gulf of Mexico coasts. Congress established
CBRA to minimize loss of human life, to eliminate wasteful expenditures of Federal revenues,
and to prevent damage to fish, wildlife, and other natural resources. As a result, CBRA prohibits
most expenditure of Federal funds that encourage development within the undeveloped,
unprotected (not preserved) coastal barriers in the CBRS, including the sale of Federal flood
insurance under the NFIP.
The Coastal Barrier Improvement Act of 1990 (Public Law 101-591) expanded many existing
CBRS units and added new ones. The NFIP flood insurance ban affects strictures built or
substantially improved after November 1, 1990, in CBRS areas added by the Coastal Barrier
Improvement Act, which also recognized Otherwise Protected Areas. Otherwise Protected Areas
are lands already protected by public agencies or conservation organizations. Strictures are
eligible for flood insurance in CBRS if built to support recreation or conservation, but residences
built on private in holdings are not.
The Department of Interior identifies CBRA designations and recommends them to Congress.
The Service implements the law. Federal assistance prohibitions are in effect on the date
Congress approves additional CBRA designations. In cooperation with the DOI, FEMA
21
transfers the CBRA boundaries to FIRMS using congressionally adopted source maps entitled
CBRS. FIRMS clearly depict the different CBRA areas and their effective dates with special
map notes and symbols. Although FEMA shows CBRA areas on the FIRMS, Congress is the
only entity that may authorize or initiate a revision to CBRA boundaries.
In 1988, the DOI's Coastal Barrier Study Group recommended including 19,831 acres of land of
the Keys under CBRA in its report to Congress, with 13,059 of these acres in the Lower Keys.
In Monroe County, 8 percent of total land area is in regular CBRS areas, 9 percent is in
Otherwise Protected Areas, and 83 percent is in non-CBRS areas.
STATUS OF THE SPECIES/CRITICAL HABITAT
Climate Change
In recent years, researchers armed with new data have increasingly recognized climate change as
a major factor affecting sea levels, coastlines, and islands. The Service also recognizes climate
change as a significant influence, especially on low -relief islands such as the Florida Keys.
Climate change is evident from observations of increases in average global air and ocean
temperatures, widespread melting of snow and ice, and rising sea level, according to the
Intergovernmental Panel on Climate Change Report (IPCC 2007, Bates et al 2008). The 2007
and 2008 IPCC Reports describe changes in natural ecosystems with potential widespread effects
on many organisms, including marine mammals and migratory birds. The potential for rapid
climate change poses a significant challenge for fish and wildlife conservation. Species'
abundance and distribution are dynamic, relative to a variety of factors, including climate. As
climate changes, the abundance and distribution of fish and wildlife will also change. Highly
specialized or endemic species are likely to be most susceptible to the stresses of changing
climate.
Climate change at the global level drives changes in weather at the regional level. Season and
local effects (e.g., elevation, topography, latitude, proximity to the ocean) also strongly affect
weather regionally. Scientists predict temperatures will rise from 2°C to 5°C for North America
by the end of this century (IPCC 2007). Other processes to be affected by this projected
warming include rainfall (amount, seasonal timing, and distribution), storms (frequency and
intensity), and sea level rise. However, the exact magnitude, direction, and distribution of these
changes at the regional level are not well understood or easy to predict. Seasonal change and
local geography make prediction of the effects of climate change at any location variable.
Current predictive models offer a wide range of predicted changes.
The 2007 IPCC Report estimates a 90 percent probability that sea level will rise 7 to 23 inches
by 2100 (18 to 58 cm). Wanless et al. (1997) found that, over the past 2,500 years, south Florida
experienced an average rate of sea level rise of about 1.5 inches per century (3.8 cm). Wanless
(2008) also observed that south Florida experienced about a 9-inch rise (23 cm) in sea level since
1932. This is about six times (9/1.5=6) the average rate over the past 2,500 years. Much of this
accelerated rise is the result of warming and expansion of water in the western North Atlantic
Ocean.
22
Prior to the 2007 IPCC Report, Titus and Narayanan (1995) modeled the probability of sea level
rise based on global warming. They estimated that the increase in global temperatures could
likely raise sea level 6 inches (15 cm) by 2050 and 13 inches (33 cm) by 2100. While these
estimates are lower than the estimates described in the 2007 IPCC Report, Titus and Narayanan's
(1995) modeling efforts developed probability -based projections that when added to local tide -
gauge trends, estimate future sea level at specific locations.
It should be noted that Titus and Narayanan's (1995) worst -case scenario was premised on a 1
percent chance that global warming would raise sea level that high; however, most climate
change researchers agree with the findings in the 2007 IPCC Report. Scientific evidence has
emerged since the publication of the 2007 IPCC Report indicating an increase in the speed and
scale of the changes affecting the global climate. Previously, scientists may have
underestimated important aspects of climate change and the resulting impacts are likely to
occur sooner than originally anticipated. For example, early signs of change suggest that the
less than VC (1.8°F) of global warming the world has experienced to date may have already
triggered the first tipping point of the Earth's climate system — the disappearance of summer
Arctic sea ice. This process could lead to rapid and abrupt climate change, rather than the
forecasted gradual changes.
Ecosystems of coastal islands, like the Florida Keys, face threats from sea level rise that are
distinct from those threatening ecosystems of continental margins (Mimura et al. 2007). Global
warming will be a particular challenge for endangered, threatened, and other "at -risk" species in
the Florida Keys. The progressive disappearance of suitable upland habitat caused by sea level
rise will lengthen or destroy migration routes to similar environments on the mainland or islands
with higher elevations. Deyle et al. (2007) summarized in their report that the most obvious
impact of sea level rise is simple inundation of previously dry land. As sea level rises, the
elevation of the mean high -tide line will move landward at a rate determined by the gradient of
the local topography. The value of this recession factor varies substantially from one location to
another with estimates that Florida beaches are likely to recede from 500 to 1,000 feet (152 to
304 m) for every 1-foot (0.3 m) rise in sea level. Titus et al. (2001) reported that the recession
factor for Florida ranges between 100 and 1,000 feet (30 to 304 m). As referenced in Deyle et al.
(2007), Tasker (2007) quotes Wanless as saying that the gradient in the Florida Keys may be as
low as 1:2000 feet (0.3:610 m).
This low gradient elevation correlates to an even greater impact to upland acreage in the Florida
Keys. Tropical hardwood hammocks in the upper keys are expected to convert to mangrove
communities and freshwater wetlands. Tropical hardwood hammocks and pine rocklands in the
middle and lower keys are also expected to convert to saline tolerant habitats (Ross et al. 2009,
LaFevar 2007, Ish-Shalom et al. 1992, Sternberg et al. 2007, Su Yean Teh et al. 2008).
Florida Keys Species
It is difficult to estimate, with any degree of precision, how climate change will affect Florida
Keys species, although recent assessments by Bergh (2009), Ross et al. (2009), Su Yen Teh et al.
(2008), and LaFevar (2007) provide projections for several species and habitats endemic to the
23
Florida Keys. Bergh (2009), based on model scenarios referenced in IPCC (2007), estimated
that by the year 2100, at -risk lands subject to habitat succession in the Florida Keys ranged from
58,800 (a 18 cm rise — IPCC optimistic scenario) to 115,000 acres (a 59 cm rise — IPCC worst
case scenario). Corresponding ranges for 18 cm and 59 cm sea level rises, are 11,000 and 54,400
acres, 4,430 and 11,200 acres, and 43,300 and 49,600 acres for the lower, middle, and upper
keys, respectively.
Based on Bergh's (2009) projection, sea level changes by year 2100 may place habitats at -risk
for succession from between 38 to 75 percent of the available habitats. The greatest habitat
threat is in the lower keys where at -risk land succession ranges from 18 percent for the IPCC
optimistic projection to 90 percent for the IPCC worst -case projection. Risk changes for the
middle and upper keys are 25 and 60 percent for optimistic, and 64 and 65 percent for the worst -
case scenario, respectively.
Although IPCC projections provide optimistic and worst -case scenarios, Wanless (2008)
observed that south Florida has experienced about a 9-inch rise (23 cm) in sea level since 1932,
which implies that the worst case IPCC scenario is current in the Florida Keys. This concern has
also been expressed by Ross et al. (2009) and Bergh (2009) in their evaluations of sea level rise
in the Florida Keys. They suggest that since the IPCC projections excluded the potential for
"future rapid dynamical changes in ice flow" or the potential for "Antarctica and Greenland's ice
sheets to melt relatively quickly," the IPCC projections are underestimates. Thus, the estimates
provided by Rahmstorf (2007) and Mitrovica et al. (2009) that incorporate these parameters
should also be considered in evaluating sea level rise in the Florida Keys.
Bergh (2009) included sea level rise estimates referenced by Rahmstorf (2007) and Mitrovica
et al. (2009) in model predictions. Bergh's (2009) model predicts that Rahmstorf s (2007)
worst case projection (140 cm (55 in)) will result in 92 percent (142,000 acres) of lands in the
Florida Keys becoming at -risk of habitat succession with the greatest at -risk observed in the
middle keys (99 percent) and lower keys (96 percent) by year 2100. Rahmstorf s (2007) worst
case estimate is an increase of 81 cm (32 in) over IPCC's worst -case projection with a
comparable increase of 27,000 acres with 17,500 acres in the upper keys, although the greatest
change by percent (35 percent) of available land is in the middle keys.
Most models predict that by the year 2100, significant acreages of upland and transitional
habitats will be at -risk of habitat succession. The general succession trend as suggested in Ross
et al. (2009), Bergh (2009), and LaFevar (2007) for the lower keys is the loss of the pine
rocldands and freshwater wetlands to mangrove wetland communities. Ish-Shalom et al.
(1992) also suggest that remaining tropical hardwood hammocks in the lower keys will also
succeed to mangrove communities. The succession trend as suggested by Sternberg et.al.
(2007) and Su Yean Teh et.al (2008) for the middle and upper keys is replacement of the
tropical hardwood hammocks by mangroves.
Lower Keys Species
Ross et al.'s (2009) evaluation provided a basic assessment of the physical and biological
parameters present in the Florida Keys that may be directly or indirectly influenced by climate
24
change. In the upper and middle keys, the underlying porous coralline limestone in the higher
elevation is only covered by a thin organic layer and the salinity gradient is more uniform. In the
lower keys (from Big Pine Key to Key West), the surface limestone is an oolite material (a
composite of spherical, sand -sized carbonate particles formed in shallow marine waters). This
oolite material is subject to cementation of the ooids, which causes this layer to be less
permeable to water movement than the coralline limestone. This layer allows retention of the
seasonal rains as a fresh groundwater lens that "floats" on the underlying saltwater. This lens
supports freshwater wetlands and salt -intolerant slash pine (Pinns elliotti var densa) forest (pine
rocldands) that are absent from the upper keys.
The projected sea level rise not only influences the underlying gradient between saline
groundwater and the overlying freshwater lenses present in the lower keys, but also influences
the impact of hurricane storm surges on these systems and the frequency of fire. LaFever's
(2007) assessment of the lower keys marsh rabbit (,Svlvilagns pahastris he
fneri) only evaluated
sea level rise. However, Ross et al.'s (2009) evaluation of lower keys communities includes both
the influence of sea level rise and the interactions with disturbance associated with hurricanes
and fire. Their assessment notes that fires inhibit the transition of pine to hammock forest and
herbaceous freshwater marsh to woody swamp, whereas, storm surge accelerates the transition
from freshwater -dependent ecosystems to more saline communities. The increased salinity
causes selective mortality of salt -sensitive vegetation (pines and herbaceous freshwater marsh
species).
Ross et al.'s (2009) concluding assessment of these conditions in the lower Florida Keys states
that the synergetic effects of fire suppression and hurricane surge coupled with sea level rise
provide little choice in management for protected species in the lower Florida Keys. The
management choice is to follow a strategy of adaptation, in which core sites within landscapes
that retain some of their historic connectivity are identified, fortified, and defended, all the while
planning for the day when species threatened with extinction due to submerging islands must be
translocated to suitable recipient sites elsewhere or, ultimately, maintained in captivity.
LaFever et al.'s (2007) conclusions for the Lower Keys marsh rabbit notes that, for all sea level
rise scenarios evaluated, there is a general trend of decreasing total potential Lower Keys marsh
rabbit habitat with increasing sea level rise and that endangered species conservation and
ecosystem managers need to rethink static approaches to conservation or else stand by and watch
ecosystems degrade and species go extinct. LaFever et al. (2007) also noted that other endemic
and insular species of the Florida Keys will be impacted by rising sea levels. Global climate
change may inhibit recovery efforts of endangered species such as the Florida key deer
(Odocoilens virginianns clavinm) and the endangered silver rice rat (Orvzomvs palnstris natator)
as well as cause the disappearance of endemic species such as the key ringneck snake (Diadophis
punctatns acricns) and striped mud turtle (Kinosternon banrii) before much is known about these
species (LaFever et al. (2007)
Middle and Upper Keys Species
25
The dynamics of sea level rise coupled with hurricane surge were also evaluated by Sternberg et
al. (2007) and Su Yean Teh et al. (2008) for the middle and upper keys. Their assessments
conclude that, depending on area specific parameters, the tropical hardwood hammocks
characteristic of the middle and upper Florida Keys will ultimately be replaced by mangrove
communities. Ish-Shalom et al. (1992) provided a similar assessment of the remaining hardwood
hammocks in the lower key resulting in the same conclusion.
Although the synergic effects of fire and the presence of a fresh groundwater lens are important
parameters in habitat succession in the lower keys, the presence and depth of the vadose zone is
of greater importance in succession in the middle and upper keys. The vadose zone is the
unsaturated zone between the soil surface and the top of the water table (Su Yean Teh et al.
2008). In the middle and upper keys, the vadose zone is underlain by porous coralline limestone
and the underlying groundwater varies in salinity from less than 7 (fresh) to greater than 30 (salt)
ppt. The underlying porous coralline limestone in the higher elevation is only covered by a thin
organic layer and the salinity gradient is more uniform.
In the Florida Keys and in coastal communities in south Florida, the depth of this organic layer
and the salinity of the vadose zone influence the vegetative community present and species
dominance (Su Yean Teh et al. 2008, Sternberg et al. 2007). Sharp boundaries typically separate
the salinity tolerant mangroves community from the salinity intolerant hardwood hammock
community although both can occupy similar geographical areas. Research studies and field
observations (Su Yean Teh et al. 2008, Sternberg et al. 2007) have shown that mangroves are
able to tolerate a wider range of salinities and can also grow well in low salinity environments.
Su Yean Teh et al. (2008) note that hardwood hammock species appear to be competitively
superior in low salinity areas (less than 7 ppt), whereas mangrove have a competitive advantage
in higher salinity areas (greater than 15 ppt). The boundary of competition between the two
communities is along the intermediate salinity gradient (roughly 7 to 15 ppt).
The projected sea level rise from climate change will increase the rate of salinization of the
vadose zone and favor succession from hardwood hammocks to mangroves. Bergh's (2009)
model data representing IPCC 59 cm (23 in) worst case scenario provides the best representation
of projected sea level rise minus hurricane and storm surge events. By year 2100, acres at -risk of
succession in the middle and upper keys are estimated at 11,200 and 49,600 acres, respectively,
and represent a change of 64 and 65 percent of baseline acreages (2008 baseline - Bergh 2009).
Climate change is also forecast to increase the frequency of hurricanes and intensity of storm
surges as well as to increase the amount and intensity of the saline over -wash of adjacent tropical
hardwood hammocks (Su Yean Teh et al. 2008, Sternberg et al. 2007). This increased saline
over -wash increases the salinization of the vadose zone and favors succession to the mangrove
community (Su Yean Teh et al. 2008, Sternberg et al. 2007). Bergh's (2009) model data
representing Rahmstorf (2007) worst case [140 cm (55 in) sea level rise] scenario provides the
best representation of projected sea level rise including hurricane and storm surge events. By
year 2100, acres at -risk of succession in the middle and upper keys are estimated at 17,500 and
67,100 acres, respectively, and represent a change of 99 and 88 percent of baseline acreages
(2008 baseline - Bergh 2009).
26
Federally protected species in the upper and middle keys at greatest risk from sea level rise are
those endemic to tropical hardwood hammock (i.e., the Key Largo woodrat and Key Largo
cotton mouse in the upper keys). Both species formerly inhabited all of the hardwood hammock
forests from Key Largo south through Tavernier, although the current range is restricted to that
portion of Key Largo north of the U.S. 1/S.R. 905 intersection, known locally as North Key
Largo (Frank et al. 1997). The current range is about 2,498 acres (1,011 hectares), of which
2,174 acres (880 hectares) are in public ownership (87 percent). Both species are considered at -
risk of extinction, although factors other than habitat loss appear to be a major cause of concern
for these species.
Species Included in this Biological Opinion
The Service has determined that the proposed action may affect the following nine species
protected under the Act:
Table 2: Species Included in this Biological Opinion
Common Name
Scientific Name
Listed As
Eastern indigo snake
Drpiiarchori torus couperi
Threatened
Key deer
Odocoileus virgiriialius clavium
Endangered
Key Largo cotton mouse
Peromyscus gossypilws allapaticola
Endangered
Key Largo woodrat
A`eotomcz flori(,Ialia smczlli
Endangered
Key tree -cactus
Pilosocereus robiriii
Endangered
Lower Keys marsh rabbit
lzefrreri
Endangered
Silver rice rat
Or)rzomys palustris rurtator
Endangered/Critical Habitat
Schaus swallowtail butterfly
Heracli les aristodemus porrcealius
Endangered
Stock Island tree snail
Orthalicus yeses (riot irrcl. rreso(Iryas)
Threatened
The historical ranges of the following species are exclusively within the action area: Key deer,
Key Largo cotton mouse, Key Largo woodrat, Key tree -cactus, Lower Keys marsh rabbit, silver
rice rat, and Stock Island tree snail. The range of the Schaus swallowtail butterfly extends
outside the action area to the adjacent northern -most county, Miami -Dade County. The range of
the eastern indigo snake is broader and includes many southeastern States. There is designated
critical silver rice rat habitat in the action area.
This BO does not rely on the regulatory definition of "destruction or adverse modification" of
critical habitat at 50 CFR. 402.2. Instead, we relied upon the statutory provisions of the Act to
complete the following analysis with respect to critical habitat. Our analysis follows the
guidance provided in Service Memorandum FWS/AES/DCHRS/019634, dated December 9,
2004 (Service 2004).
Silver rice rat — Critical Habitat: Critical habitat for the silver rice rat includes Little Pine Key;
Water Keys, Big Torch Key, Middle Torch Key, Summerland Key north of U.S. Highway 1;
Johnston Key, Raccoon Key, and Lower Saddlebunch Keys south of U.S. Highway 1. It does
not include lands in Township 67S, Range 27E, section 8 and the northern 1/5 of section 17. All
lands and waters above mean low tide in the designated area are included (50 CFR 17.95)
(Figure 2).
27
Species/critical habitat description
The sections that follow summarize the status of these species across their entire range and the
status of critical habitat. These summaries provide the biological and ecological information that
is relevant to the analyses in the Effects of the Action section that follows.
Eastern indigo snake
Species/critical habitat description
The eastern indigo snake was listed as threatened on January 31, 1978 (Service 1978). This
snake was listed because of dramatic population declines caused by habitat loss, over collecting
for the domestic and international pet trade, and mortalities caused by rattlesnake collectors who
gas gopher tortoise burrows to collect snakes (Service 1982). There is no designated eastern
indigo snake critical habitat (Service 2008a).
The indigo snake ranges from the southeastern United States to northern Argentina (Moler
1992). This species has eight recognized subspecies, two of which occur in the United States:
the eastern indigo and the Texas indigo (D. c. erebennns) (Conant 1975; Moler 1985a). At one
time, the eastern indigo snake occurred in the coastal plain of the southeastern United States,
from Georgia to Florida and west to Mississippi.
The eastern indigo snake is the largest non -venomous snake in North America, up to 104 inches
in length (Ashton and Ashton 1981). Its color is uniformly lustrous -black, dorsally and
ventrally, except for a red or cream -colored suffusion of the chin, throat, and sometimes the
cheeks. Its scales are large and smooth (the central 3 to 5 scale rows are lightly keeled in adult
males) in 17 scale rows at midbody. Its anal plate is undivided. Its antepenultimate supralabial
scale does not contact the temporal or postocular scales.
In the Keys, adult eastern indigo snakes seem to have less red on their faces or throats compared
to most mainland specimens (Lazell 1989). Several researchers have informally suggested that
Lower Keys eastern indigo snakes may differ from mainland snakes in ways other than color.
Life history
Distribution and habitat: Historically the eastern indigo snake occurred throughout Florida and
in the coastal plains of Georgia, Alabama and Mississippi. It may have occurred in southern
South Carolina, but there is no confirmation of its occurrence there.
Georgia and Florida currently support the remaining, endemic populations of the eastern indigo
snake (Lawler 1977). Stevenson (2006) determined that populations of eastern indigo snakes
still remain widespread in southeastern and south-central Georgia. As of 1982, only a few
populations remained in the Florida panhandle. According to information provided in 2007
(Gunzberger and Aresco 2007), eastern indigo snakes continue to persist in low numbers in the
panhandle. Throughout its range, the species is considered rare. Nevertheless, based on museum
28
specimens and field sightings, the eastern indigo snake still occurs throughout peninsular Florida,
though not commonly seen (Moler 1985a).
On the central Atlantic coast, eastern indigo snakes occur in citrus groves and near ditches and
canals. In south Florida, these snakes are found in pine flatwoods and tropical hammocks or in
most undeveloped areas (Kuntz 1977), although they may use open areas more than hammocks.
In the Keys, indigo snakes use similar habitats.
Smith (1987) radio -tagged hatchling, yearling, and gravid eastern indigo snakes and released
them in different habitat types on St. Marks NWR in Wakulla County, Florida, in 1985 and 1986,
Smith monitored the behavior, habitat use, and oviposition sites selected by gravid female snakes
and concluded that diverse habitats, including high pineland, pine -palmetto flatwoods, and
permanent open ponds, were important for the eastern indigo snake's seasonal activity. Habitat
use differed by age class and season. They frequently used stumps, ground litter, and saw
palmetto debris as refugia. Adult indigo snakes often used gopher tortoise burrows (Gopherias
poJvphennts), while juveniles chose smaller root and rodent holes. They used gopher tortoise
burrows as oviposition sites in high pineland areas, while they chose stumps in flatwoods and
pond edge habitats.
On peninsular Florida, eastern indigo snakes need a mosaic of habitats to complete their annual
cycle. Interspersion of tortoise -inhabited sand hills and wetlands improves habitat quality for the
indigo snakes (Landers and Speake 1980, Auffenberg, Franz 1982). Wherever the eastern indigo
snake occurs in xeric habitats in Georgia and north Florida, it is closely associated with the
gopher tortoise, the burrows of which shelter the indigo snakes from winter cold and desiccating
sandhill environment (Bogert and Cowles 1947; Speake et al. 1978). In laboratory experiments,
they appear to be especially susceptible to desiccation (Bogert and Cowles 1947). On the sandy
central ridge of south Florida, eastern indigos use gopher tortoise burrows more (62 percent) than
other underground refugia (Layne and Steiner 1996). However, this dependence seems
especially pronounced in Georgia, Alabama, and the panhandle area of Florida, where eastern
indigo snakes are largely restricted to the vicinity of sand hill habitats occupied by gopher
tortoises (Mount 1975; Diemer and Speake 1983; Moler 1985b). In wetter habitats that lack
gopher tortoises, eastern indigo snakes may take shelter in hollowed root channels, hollow logs
or the burrows of rodents, armadillo, or crabs (Lawler 1977; Moler 1985b). In south Florida,
indigo snakes occur along canal banks, where they use crab holes in lieu of gopher tortoise
burrows (Lawler 1977).
Outside of peninsular Florida, eastern indigo snakes are generally restricted to the vicinity of
xeric habitats that support populations of gopher tortoises, although they move seasonally into
more mesic habitats. Throughout peninsular Florida, the eastern indigo snake occurs in all
terrestrial habitats that have not suffered high -density urban development. They are especially
common in the hydric hammocks of north Florida and in similar habitats throughout peninsular
Florida (Moler 1985a).
According to a study conducted in Georgia, the average range of the eastern indigo snake is 11.9
acres during the winter (December -April), 106.0 acres during late spring and early summer
(May -July), and 240.7 acres during late summer and fall (August- November) (Speake et al.,
29
1978). Adult male eastern indigo snakes have larger home ranges than adult females and
juveniles; Moler (1985b) noted ranges in the summer varying between 553 acres and 390 acres.
By contrast, a gravid female may use from 3.4 acres to 106 acres (Smith 1987).
In the Keys, eastern indigo snakes have been collected from Big Pine and Middle Torch Keys,
and were reliably reported from Big Torch, Little Torch, Summerland, Cudj oe, Sugarloaf and
Boca Chica Keys (Lazell 1989). P. Moler (personal communication, 1996) documented eastern
indigo snakes on North Key Largo, and the FDEP (FDEP submitted road kill data for Key Largo,
which documented the presence of eastern indigo snakes from 1995 through 1998). A report by
Brian Sheahan, a planner from the Village of Islamorada, on sightings on Lower Matecumbe
Key in 2005 are unverified. A Service biologist also reported an observation of a juvenile
eastern indigo at one of the same sites at about the same time. The most recent observation of an
eastern indigo snake occurred on Little Knockemdown Key in 2009. A photo verification of the
individual was provided to the National Key Deer Refuge (NKDR) via email in 2010 (Service
2010). Because there are no comprehensive eastern indigo snake surveys for the Keys, one
cannot rile out that the snake occurs on other keys as well.
Using a variety of survey techniques, Schmidt et al. (2008) conducted a herpetological inventory
of Big Pine Key and No Name Key in 2006 and 2007. Although documenting 27 species, the
researchers did not observe the eastern indigo snake and suggest their research supports the
presumption that it has been extirpated from those keys.
Feeding: The eastern indigo snake is a generalized predator and will eat any vertebrate small
enough to be overpowered, though it has a predilection for rattlesnakes (('rotallas spp.). The
snake's food items include fish, frogs, toads, snakes (venomous as well as nonvenomous),
lizards, turtles, turtle eggs, small alligators, birds, and small mammals (Babis 1949).
Reproduction: Eastern indigo snakes breed between November and April, with females
depositing 4 to 12 eggs during May or June (Moler, 1992). Young hatch in about 3 months from
late May through August, while yearling activity peaks in April and May (Smith 1987). There is
no evidence of parental care although the snakes take 3 to 4 years to reach sexual maturity
(Moulls 1976).
Female indigo snakes can store sperm and delay fertilization of eggs: there is a single record of a
captive snake laying five eggs (at least one of which was fertile) after being isolated for more
than 4 years (Carson 1945). There is no information on how long eastern indigo snakes live in
the wild. In captivity, the longest an eastern indigo snake lived was 25 years, 11 months (Shaw
1959).
Population dynamics
The eastern indigo snake does not typically show up in standard herptile census methods such as
drift fences (Enge 1997). In 2003, Smith and Dyer conducted a study to test the efficiency and
applicability of three commonly used herpetological survey techniques (drift fence arrays, road
cruising, and burrow camera surveys). None of these methods proved effective or reliable for
30
surveying eastern indigo snakes. No population estimates exist for south Florida, but anecdotal
accounts from field researchers indicate that observations of the eastern indigo snake are rare.
Status and distribution
Reason for Listing: When the indigo snake was listed, the main cause of its population decline
was over collecting for the pet trade, but today habitat loss may be a more important factor.
Range wide Trends: There are no available data on range wide or local trends. The indigo snake
apparently occurs in very low numbers in the Keys. Cox and Kautz (2000) designated extreme
north Florida and extreme south Florida (including the Florida Keys) as "peripheral areas within
the known range." Populations in the Keys have adapted to the conditions of more isolated and
tropical environments. Anecdotal sightings are rare, but there are few substantiated sightings.
Threats: At the time of listing, the main factor in the decline of the eastern indigo snake was
exploitation for the pet trade. However, because of effective law enforcement, the pressure from
the collectors has declined, but remains a concern (Moler 1992). Remaining threats to the
eastern indigo snake in the Florida Keys are habitat loss, fragmentation of habitat, and climate
change.
Habitat Loss crud fragmentation: Loss of habitat resulting from development is the most
significant and obvious threat. As residential development continues, additional human
population growth will increase the risk of direct mortality of the eastern indigo snake from
property owners, domestic animals, and highway mortality.
Climate Change: The dynamics of sea level rise coupled with hurricane surge were also
evaluated by Sternberg et al. (2007) and Su Yean Teh et Al. (2008) for the middle and upper
keys. Their assessments conclude that, depending on area specific parameters, the tropical
hardwood hammocks characteristic of the middle and upper Florida Keys will ultimately be
replaced by mangrove communities. The eastern indigo snake, although occasionally present in
all native habitats in the Florida Keys prefers hammock communities. Under the worst -case
scenario, models predict inundation of a majority of the uplands important to eastern indigo
snake by 2100 (Bergh 2009) and eventually result in the conversion of existing coastal hammock
and forest habitat to transitional habitat then to tidal areas dominated by mangroves.
Summary analysis— Changes since the 1997, 2003, and 2006 BOs
In the Keys, the primary threat to the eastern indigo snake is habitat loss and fragmentation due
to development. Residential housing is also a threat because it increases the likelihood of snakes
being killed by property owners and free -roaming pets. There is no notable change in our
understanding of the eastern indigo snakes in the Florida Keys since the prior BOs were
completed.
Kev Deer
31
Species/critical habitat description
The Key deer is a member of the Cervidae family of the order Artiodactyla class Mammalia. It
was first recognized as a subspecies distinct from the races of O. v. osceola and O. v. virginianns
when Barbour and Allen (1922) described it. The population has been geographically and
reproductively isolated in the Lower Keys since the last glacier melted at least 4,000 years ago.
By the late 1940s, over hunting and wanton killing by early Keys visitors and residents had
reduced the Key deer population to a dangerously low level, estimated at 50 to 80 individuals.
By the early 1950s, only 25 deer remained (Dickson 1955). Immediate efforts to enforce
existing hunting bans and to protect the deer from human disturbance allowed the Key deer's
numbers to increase slowly. National Key Deer Refuge was established in 1957 to protect the
Key deer. The Key deer was officially listed as federally endangered on March 11, 1967, in
accordance with section 1(c) of the Endangered Species Preservation Act of October 15, 1966,
(80 Stat. 926; 16 U.S.C. 668aa(c)) (Service 1967). There is no current designation of critical
habitat for the Key deer.
The Key deer is the smallest subspecies of the North American white-tailed deer. Adult males
average 80 pounds (lbs), adult females 63 lbs, and fawns weigh about 32 lbs at birth. Height at
the shoulder averages 27 inches for adult bucks and 25 inches for adult does (Hardin et al. 1984).
The body appears stockier than that of other deer (Klimstra et al. 1978a); the legs are shorter, and
the skull is shorter and relatively wider (Klimstra et al. 1991). Pelage varies from deep reddish -
brown to grizzled gray, and a distinct black cross or mask is often present between the eyes and
across the brow (Klimstra 1992). Antler size and number of points for male Key deer are less
than for other whitetails (Folk and Klimstra 1991a). Bucks typically grow spikes until their
second year, when they produce forked antlers. They usually attain 8 points by the fourth year.
Besides their size, Key deer possess a number of characteristics unique from other white-tailed
deer, including high salt -water tolerance (Jacobson 1974), low birth rate, low productivity (Folk
and Klimstra 1991b), more solitary nature, and weals family bonds (Hardin 1974). According to
Ellsworth et al. (1994), the Key deer population is the most genetically divergent deer population
in the southeastern United States.
Key deer live in a complex of native upland and wetland habitats interspersed in a mix of light to
dense urban development. The number of Key deer has increased substantially over the past 40
years, due principally to a ban on hunting and protection and management of habitat within the
NKDR and surrounding lands. Natural stochastic (random) events and the influences of human
development, as manifested through habitat loss, fragmentation, and degradation, continue to
negatively affect Key deer survival with vehicular mortality representing the largest known
source of documented Key deer mortality (Lopez 2001).
Life history
Distribution: The Key deer's range probably historically extended from Key Vaca to Key West
(Klimstra et al. 1978b). Florida Key deer occupy 20 to 25 islands in the Lower Florida Keys
32
within the boundaries of the NKDR, with about 75 percent of the overall population found on
Big Pine Key (Lopez et al., 2004a). The NKDR and the Great White Heron NWR encompass
much of this range.
The principal factor influencing the distribution and movement of Key deer in the Keys is the
location and availability of freshwater. Key deer swim easily between keys and use all islands
during the wet season, but suitable water is available on only 13 of the 26 islands during the dry
season (Folk 1991).
Habitat: Key deer use all habitat types including pine rocldands, hardwood hammocks,
buttonwood salt marshes, mangrove wetlands, freshwater wetlands, and disturbed/developed
areas (Lopez 2001). The deer use uplands more than wetlands (Lopez et al. 2004b). Key deer
use these habitats for foraging, cover, shelter, fawning, and bedding. Pine rocldands hold
freshwater year round and are especially important to Key deer survival. About 34 percent of the
range is pine rocldands and hardwood hammocks (Lopez et al. 2004c). Over 85 percent of
fawning occurs in pine rocldands and hardwood hammocks (Hardin 1974). Five of 26 islands
occupied by Key deer have significant pine rocldands. Key deer also use residential and
commercial areas extensively where they feed on ornamental plants and grasses and can seek
refuge from biting insects.
Behavior: Key deer have well-defined patterns of activity and habitat use, and established trails
from years of daily use are visible in many areas within Key deer habitat (Klimstra et al. 1974).
Roadkill hotspots are evident from the Service's long-term mortality database, further illustrating
the habitual movement patterns of Key deer.
The social stricture of the Key deer varies throughout the year with the reproductive cycle.
Bucks associate with females only during the breeding season and will tolerate other males when
feeding and bedding only during the non -breeding season. Does may form loose matriarchal
groups consisting of an adult female with several generations of her female offspring, but these
associations are not stable (Hardin et al. 1976).
Home ranges of Key deer are variable (Lopez 2001). On Big Pine Key and No Name Key,
average annual home range size (95 percent probability area; ages combined) for males and
females was estimated to be 546 acres and 104 acres, respectively, during the period 1998 to
2000. Home range sizes were significantly larger from 1968 to 1972 (males, 959 acre, females
250 acres) (Silvy 1975; Lopez 2001). Males tend to disperse from their natal (birth) range as
fawns or yearlings. Adult males range over larger areas during the breeding season and may
shift to an entirely new area (Silvy 1975; Drummond 1989; Lopez 2001). Territorial behavior is
limited to a buck's defense of a receptive doe from other bucks, rather than the defense of a
specific territory (Klimstra et al. 1974). Aggressive male behaviors (combat) between nutting
males are common in Key deer, especially during the fall breeding season or nit. Key deer home
ranges have become smaller and tolerance for other deer has increased because of development
and feeding (Lopez et al. 2005).
Urbanization: Key deer have urbanized over the last 45 years, a trend reported in Folk and
Klimstra (1991c). Key deer are regularly fed at several private locations on Big Pine Key, which
33
has resulted in increased tameness (Folk and Klimstra 1991c; Lopez et al. 2005). Peterson et al.
(2004) assessed the effects of residential feeding and watering on Key deer behavior on Big Pine
Key. Peterson documented deer aggregations around homes that provided food and water, and
the deer exhibited increased levels of tameness.
Past research has shown that the Key deer on Big Pine Key habituate to human noises, lights,
and vehicular traffic (Folk and Klimstra 1991c). Folk and Klimstra (1991c) observed that Key
deer "often bedded in open sites within 7 feet of a road and were not disturbed by cars,
pedestrians, or cyclists. Loud noises from within 131 feet, such as circular saws, lawn leaf -
blowers, and wood chippers brought little response." Several studies have documented that deer
in general quickly habituate to noise and lights. Bashore and Bellis (1982) found that deer
quickly became accustomed to noise and lights on Pennsylvania airfields. It has been suggested
that less than 10 percent of Key deer on Big Pine Key exhibit "wild," or natural, characteristics
(Frank 2005, personal communication). A study conducted by Harveson et al. (2007) concluded
that Key deer have adapted to an urban environment.
Feeding: The Key deer is capable of exploiting a variety of foods over a range of habitat
conditions. Diet varies seasonally with resource availability and changes in nutritional
requirements of deer (Klimstra and Dooley 1990; Carlson et al. 1993). Key deer forage on over
160 plant species including red mangrove (Rhizophora mangle), blackbead (Pithecellobinm
kevense), acacia (Acacia pinetornm), Indian mulberry (Morinda rovoc), and pencil flower
(Stvlosanthes hamata). Red and black mangroves (Avicennia germinans) constitute 24 percent
by volume of the diet of the Key deer (Klimstra and Dooley 1990). Key deer require a
freshwater source for survival (Folk et al. 1991).
Population dynamics
Population size: The Key deer population on Big Pine Key and No Name Key has increased by
about 240 percent since 1972 (Harveson et al. 2005). Collectively, 453 to 517 deer occupy Big
Pine and No Name Keys; the highest recorded estimate for these two islands (Lopez et al.,
2004a). The Key deer population was estimated at 360 to 375 individuals in 1972, the last
official survey (Silvy 1975). More recent data note an increase in population, but estimates of
density and stricture are lacking (Lopez 2001). Based on habitat condition and the presence of
density -dependent disease in the population, the Key deer may be at or near ecological carrying
capacity on Big Pine and No Name Key (Lopez 2001; Nettles et al. 2002; Lopez et al. 2004a).
Harveson et al. (2005) provided estimates of deer abundance in 2000 and 2001 (646 deer) and
determined that subpopulations outside of Big Pine and No Name Key remain well below the
carrying capacity of the habitat available to them. The total Key deer population was estimated
at about 650 in 2006, perhaps at or near historic highs (Lopez, personal communication, 2006).
No significant changes were noted in the population levels in succeeding years and the status of
the species is considered stable (Service 2010c).
Population variability: Key deer produce fewer young per female than any other white-tailed
deer population in North America. Fecundity (number of fetuses per female) and productivity
(percent of females reproducing) are low, mean age of first breeding is high, and twinning is
infrequent, resulting in relatively low reproductive potential. The sex ratio of Key deer favors
34
males at birth, with a 1.75 to 1 fetal ratio and 2 to 1 fawn ratio. However, significantly higher
male mortality at maturity serves to balance adult sex ratios more evenly. Annual deer mortality
is a function of deer density and population size (Lopez et al. 2003).
Status and distribution
Reason for Listing: Habitat loss to development; high, human -related mortality; and
dangerously declining low numbers resulted in the 1967 Key deer listing as an endangered
species (Service 1967).
Range wide trends: The principal factor influencing the distribution and movement of Key deer
in the Keys is the location and availability of freshwater. Key deer swim easily between keys
and use all islands (from Big Pine Key to Sugarloaf Key) during the wet season, but fresh water
is available on only 13 of the 26 islands during the dry season (Folk 1991). Key deer are wide
ranging and use virtually all available habitats, including developed areas (Lopez 2001). The
Key deer population is growing because of protection from hunting, habitat protection, and the
positive response of the population to decreased levels of urban development in Big Pine and No
Name Keys (Lopez et al. 2004a).
The protection afforded the Key deer through prohibitions on hunting, habitat management, and
habitat protection through acquisition has resulted in an increase in (240 percent) in the Big Pine
Key deer population. Despite the apparent increase in population levels of Key deer, there has
been a contraction of the range of Key deer from 1970 to 1999 (Lopez 2001). Key deer have
become increasingly abundant on Big Pine Key and adjacent islands, but have decreased to near
extirpation on more distant islands such as Cudjoe and Sugarloaf Keys (Lopez 2001). Although
Key deer were never abundant on Cudjoe and Sugarloaf Keys, they previously existed at such
low numbers that local extirpation was thought to be likely in the near future (Lopez 2001). This
contraction in the range has decreased the overall viability of the Key deer population by
increasing the probability that a stochastic event, such as a hurricane or disease epidemic, may
have had catastrophic impacts to the core population on and around Big Pine Key (Lopez et al.
2004). Recent relocation efforts, however, and the overall population increase have helped
address this concern. The population now is at or near historical highs (Service 2007).
As part of its recovery strategy, the Service relocated 39 Key deer to two islands within their
existing range from 2003 to 2005. The Service moved 24 individuals (14 does, 10 bucks) from
Big Pine Key to Sugarloaf Key and 15 individuals (9 does and 6 bucks) from Big Pine Key to
Cudj oe Key. Sugarloaf Key and Cudjoe Key have supported a small number of Key deer in the
past. Both islands were home to about five resident deer each. A survey of resident deer on
Cudjoe Key prior to relocation produced two deer observed and the relocations appear to be a
success due to high survival, low dispersal, and evidence of reproduction (lactation, fawn
present, etc.) in translocated females (Parker et al. 2008).
Threats:
Habitat loss - Loss of habitat resulting from development is the most significant and
obvious threat to Key deer (Klimstra et al., 1974). The human population on Big Pine Key more
35
than doubled from 1980 to 2000. An estimated 116 acres per year of Key deer habitat was
cleared on Big Pine Key in the early 1970s. A building moratorium, new County ROGO
requirements and Habitat Conservation Plan (HCP) for Big Pine and No Name Keys reduced
development in recent years, but habitat loss from development is still a threat.
Fencing - Fencing associated with development may cause direct Key deer habitat loss
by preventing access to areas used for breeding, feeding, and sheltering. Native habitat that is
fenced is no longer available for use by the Key deer and the fencing may block access to other
areas. This loss of habitat has reduced the availability of food, water, and shelter as well as
fawning areas needed by deer to survive and reproduce. Large networks of fencing have
fragmented Key deer habitat and restricted movement, which reduces the availability and value
of these areas to Key deer. Although the Monroe County Comprehensive Land Use Plan
regulates fencing, many areas important to Key deer continue to be impacted by fences. An
additional concern is the injury or death that occurs when deer become entangled when
attempting to jump fences.
Fire suppression - Fire suppression promotes ecological succession in pine rocldand
communities, resulting in increased hardwood cover, dense brush, decreased herbaceous cover,
reduced light penetration, and a general deterioration of habitat quality for Key deer (Klimstra,
1986; Carlson et al., 1993).
Exotics - Exotic vegetation is believed to restrict Key deer and concentrate their
movements along established trails. This results in more Key deer crossing roads at fewer access
routes or walking along roads, increasing their vulnerability to traffic. Exotic plant species such
as Australian pine (('asuarina egnisetifolia), Brazilian pepper (,Schinns terebinthifolins), and
latherleaf (('ohabrina asiatica) are invading Key deer habitat, out competing native vegetation,
and reducing habitat quality.
Disease - As the population density nears carrying capacity, density dependent disease
becomes an increasing problem (Lopez 2001). Service biologists necropsy mortalities and test
for infectious diseases. Several diseases are documented, but only haemonchosis (anemia
attributable to blood loss from blood -sucking parasites) is believed to have affected population
dynamics in recent years (Nettles et al. 2002). Scientists first documented the presence of
paratuberculosis or Johne's disease in Key deer in 1996 (Nettles et al. 2002, Quist et al. 2002).
Corn et al. (2006) monitored the disease and found that it had remained localized within the Big
Pine Key and Newfound Harbor subpopulations. The level of this threat to Key deer is
unknown, but could potentially be significant, depending on how infectious the disease is among
Key deer and sympatric animals (Quist et al. 2002). However, in the 13 years since its
discovery, paratuberculosis in the population has not been significant. Nonetheless, density
dependent disease is an issue that warrants continued scrutiny.
T`ehicnlar mortality - Residential and commercial development over the past 20 years has
increased the number of vehicles and vehicular traffic in the Keys. The main thoroughfare for
the Keys U.S. 1 nuns through much of the Key deer habitat. This additional traffic has increased
the likelihood of Key deer/vehicle collisions. Vehicular mortality is the greatest known source
of Key deer deaths. Telemetry data suggests that the majority of deer mortality attributed to road
36
kills occurs on U.S. 1 (Lopez 2001). Although lower speed limits are an attempt to reduce traffic
mortality, speeding motorists (Lopez 2001; Frank, personal communication, 2005) may continue
to cause deaths in some areas.
The Service has kept records on Key deer mortality since the 1960s and more than 73 percent of
the cases are due to vehicular mortality (Silvy 1975; Lopez et al. 2003; Service unpublished data,
2009a). From 1996 to 2009, over half the vehicular mortalities have occurred along a 3.5-mile
segment of U.S. 1, which bisects the southern end of Big Pine Key. Due to the high occurrences
of Key deer -vehicle collisions along this road segment, the Service and biologists from the
Florida Department of Transportation (FDOT) have attempted to address this mortality issue on
U.S. 1 by installing and monitoring underpasses for deer. Braden et al. (2005) summary report to
FDOT noted that the Key deer collisions were reduced by 83 to 92 percent inside the fenced
segment and that the US 1 highway improvements have not restricted Key deer movements.
Climate change - The projected sea level rise may affect Key deer through changes in the
underlying gradient between saline groundwater and the overlying freshwater lenses present in
the lower keys. Sea level rise may also affect Key deer through changes in frequency and
duration of hurricane storm surges, fire, and the availability of freshwater. On Big Pine Key,
slash pine forest (rocldands) hold freshwater year round and are especially important to Key deer
survival. Hurricane Georges made landfall at Big Pine Key in October 1998, and caused severe
damage to the Keys vegetation and salinization of the freshwater wetlands. Ross et al. (2009)
noted significant stress to the salt -intolerant slash pine forest (pine rocldands). Under the worst -
case scenario, models predict inundation of a majority of the uplands important to Key deer by
2100 (Bergh 2009) and eventual conversion of existing coastal hammock and forest habitat to
transitional habitat then to tidal areas dominated by mangroves.
Pine Key Habitat Conservation Plan (HCP): Big Pine Key is the largest of the Lower Keys
and forms the center of the Key deer's range, supporting about 68 percent of the population
(Lopez, 2001). Like Big Pine Key, No Name Key contains relatively large areas of the preferred
upland habitat with freshwater resources. Together, those keys support about three -fourths of the
Key deer population (Lopez 2001; Peterson et al. 2004). Vehicular mortality is the greatest
known source of deer mortality within the action area, especially on Big Pine and No Name
Keys.
To address vehicle mortality and habitat loss associated with development on Big Pine and No
Name Keys, the Service, in accordance with the Act, issued a Section 10(a)(1)(B) ITP to Monroe
County, FDOT, and FDCA in June 2006. The TTP authorizes take of Key deer (4 per year), Key
deer habitat (168 acres), Lower Keys marsh rabbit buffer habitat (40 acres), and eastern indigo
snake habitat (168 acres) on Big Pine and No Name Keys, Monroe County, Florida. The take
will be incidental to land clearing for development and recreational improvements. The
applicants developed an HCP that sets guidelines for development activities on Big Pine and No
Name Keys to occur progressively over the permit period (20 years) and provides a conservation
and mitigation strategy to minimize and mitigate for impacts to protected species and their
habitat.
37
The HCP allows for a 168-acre maximum loss of potential Key deer habitat (maximum loss of 7
acres of native habitat) and compensation by acquiring a minimum of three mitigation units for
each development unit of suitable habitat on Big Pine and No Name Keys. The Service
determined that this level of incidental take would not jeopardize the survival and recovery of the
species.
Summary analysis— Changes since the 1997, 2003, and 2006 BOs
The Key deer herd has increased substantially over the past 40 years, due principally to a ban on
hunting and protection and management of habitat within NKDR. The population is at or near
historical highs. It has remained stable since 2003. Recent relocation efforts have returned the
species to parts of its historic range. Hurricanes, disease, vehicle mortality, development,
increasing tameness, habitat loss, fragmentation, and degradation, continue to threaten the Key
deer population, but the overall health of the species appears stable.
Key Largo cotton mouse
Species/critical habitat description
The Key Largo cotton mouse is an island subspecies of the cotton mouse (P. gossvpinus), a
widespread species in the southeastern United States. Schwartz (1952a) was first described the
Key Largo cotton mouse as a medium-sized mouse with large ears and protuberant eyes. Its
back is reddish to dusky brown and its underside is white. Its body length ranges from 6.6 to 7.4
inches, tail length ranges from 2.8 to 3.4 inches, and hind -foot length ranges from 0.82 to 0.90 of
an inch.
Life history
Distribution: The Key Largo cotton mouse formerly inhabited all of the hardwood hammock
forests from Key Largo south through Tavernier. It is now restricted to that portion of Key
Largo north of the U.S. 1/S.R. 905 intersection, known locally as North Key Largo (Frank et al.
1997). Although the species occurred in the past at the south end of Key Largo, at Plantation
Key, attempts to collect this species in southern Key Largo have been unsuccessful (Service
1999; Frank et al. 1997). The Service introduced the Key Largo cotton mouse to Lignumvitae
Key in 1970. The last recorded sighting was in 1977, when a park ranger observed one
individual. A trapping study conducted on Lignumvitae Key in 2007 yielded no captures
(Greene 2007) suggesting the population is extirpated there.
Habitat: The Key Largo cotton mouse builds leaf -lined nests in logs, tree hollows, and rock
crevices. The entrances measure 1.2 to 3.5 in. in diameter. The cotton mouse often partially
covers entrances with leaves or bark. Their holes are usually located at the bases of trees, or near
or in woodrat nests, although Key Largo cotton mice also use recently burned areas where
bracken fern (Pteridium aquilinum) dominates ground layers (Goodyear 1985).
Behavior: Key Largo cotton mice feed on leaves, buds, seeds, and faits. The Key Largo cotton
mouse breeds throughout the year. They produce two to three litters annually, averaging four
38
young per litter. The Key Largo cotton mouse's average life expectancy is 5 months, although it
may live for 2 to 3 years (Service 2009b).
Population dynamics
In 1997, the population occurred throughout North Key Largo and was apparently viable (Frank
et al. 1997). Population studies conducted in 2007 estimated about 17,000 individuals and an
increasing trend in the population from April to December (Castleberry et al. 2008).
Status and distribution
Reason for Listing: The Key Largo cotton mouse was listed as endangered for 240 days on
September 21, 1983, through an emergency listing action (Service 1983). The emergency listing
was necessary to provide full consideration of the welfare of this species during Service
consultation on a loan from the Rural Electrification Administration to the Florida Keys Electric
Cooperative. The loan was for constriction of a project that would result in accelerated habitat
loss. The cotton mouse was proposed as endangered with critical habitat on February 9, 1984
(Service 1984a), and was listed as endangered on August 31, 1984 (Service 1984b). The
proposed critical habitat was withdrawn on February 18, 1986 (Service 1986; Service 1999).
Range wide Trends: The Key Largo cotton mouse was formerly distributed throughout Key
Largo, but is now restricted to hardwood hammocks on North Key Largo (Frank et al. 1997).
The majority of high quality hammock habitat available on North Key Largo has been protected
through acquisition and is being managed for conservation by the Service and State of Florida.
Because of these efforts and current land use regulations in place by Monroe County, the threat
of occupied habitat loss from development on North Key Largo is low. At present, within this
range (North Key Largo), suitable cotton mouse habitat is about 2,498 acres, of which about
2,188 acres are in public ownership (88 percent).
Threats: Factors other than habitat loss are cause for concern for the cotton mouse. Although
much of the land currently occupied by the cotton mouse is protected, the secondary impacts
from development, perhaps most notably free roaming domestic and feral cats, remains a
significant threat to the persistence of the cotton mouse. Frank et al. (1997) failed to document
the cotton mouse at the southern end of North Key Largo. Trapping for the Key Largo woodrat
in the Port Bougainville area from 2002 to 2005, however, resulted in the incidental capture of
cotton mice in the area. Fire ants (,Solenopsis invicta) were also in some of the trapped areas in
the old Port Bougainville project area. It was difficult to determine cotton mouse abundance for
the area because trap disturbance by raccoons was very high during the trapping sessions.
The domestic cat is the most widespread terrestrial carnivore on earth, and the fact that cats
negatively affect a vast array of wildlife species, especially bird and small mammals, is well -
documented (Churcher and Lawton 1989). Cats are flexible in food habits and social
organization and hunt even when fed daily by humans (Liberg 1985). Studies of food habits of
feral cats have shown that mice often compose a large proportion of the diet (Churcher and
Lawton 1989). The feral and free -roaming domestic cats on North Key Largo undoubtedly
impact cotton mouse populations. The direct and indirect impacts of cats on the cotton mouse
39
population are difficult to quantify. Not only will the cats prey on the cotton mice, but also they
may cause behavioral changes. Studies suggest that prey behavioral changes in response to
predation risk can result in significant effects on prey -body growth rate and reproductive output.
The non -lethal impacts of predation risk are likely a complex mix of predator abundance, prey
food supply, habitat stricture and the relative distribution of these in space (Arthur et al. 2004).
Feral and free -roaming domestic cats are a problem throughout Crocodile Lake NWR and Key
Largo Hammocks State Botanical Site. Concentrations of cats appear to be higher near the
developed areas especially near Ocean Reef, Garden Cove, and the Ocean Shores development.
Recolonization of the Port Bougainville area by cotton mice following abandonment of the
proposed development may have been impeded by the establishment of a feral cat colony on
State property near the Garden Cove Marina. It is unclear when this colony was established.
The Service contracted the U.S. Department of Agriculture's Wildlife Services in 2005 to
remove the cats from the area. Although they removed the colony, free -roaming domestic cats
and the abandonment of new cats into the area are a continuing problem. Feral cats are secretive,
and unless they are actively tracked and or trapped, their presence may go unnoticed.
Other non-native predators, such as fire ants and exotic snakes, also pose a threat to the Key
Largo cotton mouse (Service 2009b). The role of fire ants in the ecology of the North Key Largo
hammocks is unknown. However, fire ants have substantially affected wildlife populations in
other areas (Killion and Grant 1993). Because the cotton mouse is a ground nester and
nocturnal, it is likely that it would be vulnerable to fire ant predation while taking refuge in nests
during the daytime. In addition, cotton mice bear helpless young, which would be vulnerable to
fire ant predation. Both adult and young cotton mice are vulnerable to predation by Burmese
pythons (Pvthon molnrns bivittatns) and other exotic species of constrictors now found in the
Keys. Seven non-native Burmese pythons have been captured in Key Largo since April 2007,
and predation of Key Largo woodrats by Burmese pythons was documented in 2007 (Snow
2008).
In addition to threats posed by introduced predators, Brown (1978b) and Hersh (1981) attributed
the apparent extirpation of this species from Key Largo south of the U.S. 1-S.R. 905 intersection
to land clearing followed by residential and commercial development. Habitat fragmentation,
combined with a decreased range, makes the Key Largo cotton mouse more vulnerable to natural
catastrophes such as hurricanes and fire (Service 1993c).
Climate change is also considered an important threat to the Key Largo cotton mouse. Sternberg
et al. (2007) and Su Yean Teh et al. (2008) in their assessment of the middle and upper keys
susceptibility to sea level rise conclude that tropical hardwood hammocks characteristic of the
upper Florida Keys will ultimately be replaced by mangrove communities. Worst -case models
by Bergh (2009) forecast a change (loss) in hammock vegetation of 88 percent by 2100. Fora
species endemic to tropical hardwood hammock (i.e., both the Key Largo woodrat and Key
Largo cotton mouse), the long term projection is that these species will need resource
management intervention for survival in the Florida Keys or translocation to suitable recipient
sites elsewhere.
40
Summary analysis— Changes since the 1997, 2003, and 2006 BOs
The Key Largo cotton mouse occurred historically throughout Key Largo, but is now restricted
to hardwood hammocks on North Key Largo (Frank et al. 1997). The majority of occupied
habitat on North Key Largo is under public ownership and managed for conservation by the
Service and the State of Florida. Because of land acquisition efforts for conservation and current
county land use regulations, the threat of occupied habitat loss from development on North Key
Largo is low. The status of the cotton mouse may be stable, but we do not have sufficient data
available to determine long-term trends. Some threats, such as domestic and feral cats, remain a
significant concern. Other threats include predation by exotic fire ants and exotic constrictors,
and stochastic environmental events such as fires and hurricanes.
Key Largo lroodrat
Species/critical habitat description
The Key Largo woodrat is an island subspecies of the eastern woodrat (N. f7oridana), which
occurs widely in the eastern United States. The Key Largo woodrat is gray -brown with white
underparts, large ears, protuberant eyes, and a hairy tail. The head and body length ranges from
4.7 to 9.0 inches, tail length ranges from 5. Ito 7.4 inches, and hind foot length ranges from 1.3 to
1.5 inches.
Life history
Distribution and Habitat: The Key Largo woodrat is endemic to the tropical hardwood
hammocks of Key Largo (Service 2008). Historically, it occurred over the length of Key Largo
south to near Tavernier, but the present range of the Key Largo woodrat includes only the
northern portion of Key Largo (Frank et al. 1997). Within this range, suitable woodrat habitat is
about 3,755 acres, of which about 2,730 acres are protected (72 percent).
Key Largo woodrats have several distinct traits. They are active climbers. They seem to have
definite trails and often use fallen trees to move over the forest floor. The Key Largo woodrat,
like other members of the genus Neotoma, has a habit of building large stick nests. Woodrats
constrict their nests out of sticks, twigs, and various other objects that they assemble into
mounds that can reach 4 ft high and 6 to 7 feet in diameter.
They frequently build their nests against a stump, fallen tree, or boulder and may use old sheds,
abandoned cars, rock piles, and machinery as nest sites. Their nests have several entrances and a
single, central nest chamber. Normally, only one adult Key Largo woodrat inhabits a nest and
one animal may use several nests. Goodyear (1984) found that Key Largo woodrats occupied
some areas on North Key Largo without obvious stick nests, although she noted that the animals
had at least a few sticks placed at the entrance to rock crevices they used for their nests. In the
late 1990's, stick nests were no longer present on North Key Largo (Frank et al. 1997).
Efforts to manage the hammocks on North Key Largo have focused primarily the maintaining an
intact ecosystem. Crocodile Lake NWR has enhanced woodrat habitat through demolition of
41
concrete buildings at the old NIKE missile site in 2004 and constriction of nibble piles to
provide cover and nesting sites. The Crocodile Lake NWR also installed large rock piles to
provide additional stricture as the site reverts to hardwood hammock. In 2005, refuge volunteers
began experimenting with the placement of artificial nest strictures in the hammock near
occupied habitat to provide additional nesting substrate in anticipation of hammock regeneration.
Potts (2008a) reported over 150 supplemental nest strictures within Crocodile Lake NWR, with
about 33 percent in use. Crocodile Lake NWR reported (Klett, personal communication, 2010)
in January 2010 that over 300 strictures are now in place.
Behavior: Key Largo woodrats feed on a variety of leaves, buds, seeds, and faits. The Key
Largo woodrat is capable of reproducing all year, although there are seasonal peaks:
reproductive activity is highest during the summer and lower during the winter. Key Largo
woodrats have litter sizes ranging from one to four young although a litter typically contains two
young. Female woodrats can produce two litters per year. Both sexes reach sexual maturity in
about 5 months. The life expectancy of the Key Largo woodrat is unknown, but is probably
similar to other subspecies of N. f7oridana which may live for 3 years, but probably averages less
than 1 year in the wild.
Population dynamics
Population Size: A sporadic effort to monitor the status of the Key Largo woodrat population
began in the 1970s (Frank et al. 1997). Past studies and monitoring efforts indicate that the Key
Largo woodrat population experienced a substantial decline sometime in the late 1980s and early
1990s (Frank et al. 1997). The following time line documents available information about the
decline in woodrat numbers.
In 1952, the Key Largo woodrat occurred on Key Largo, but was apparently most abundant on
the northern end of the island even at that time. Stick nests are prominent indicators of the
species' presence in an area. One survey of stick nests found 40 nests in a single location four
miles north of U.S. 1 on C.R. 905.
In July 1971, 19 woodrats (10 males, 9 females) were relocated from North Key Largo to
Lignumvitae Key. The introduction was apparently successful based on stick nest presence
observed by Hersh (1978) and park rangers until at least 1985 and 1986.
Hersh (1978) conducted a study of the woodrat in 1976 and 1977 and found densities of 0.9
woodrat per acre on North Key Largo. Stick nests were common and used as a general indicator
of woodrat presence. An index of 5.6 nests per woodrat was developed. Management
recommendations from her study suggest old, mature hammock supports the highest Key Largo
woodrat density.
Barbour and Humphrey (1982b) conducted a status survey in 1979 and estimated that there were
3,666 Key Largo woodrat stick nests and 645 individual Key Largo woodrats over an area of 222
acres. These estimates were based on 40 strip transects of 1 acre established along C.R. 905.
They found Key Largo woodrats on Lignumvitae Key at comparable densities to North Key
Largo, and estimated 85 woodrats occurred on the island at a density of 0.9 per acre. They
42
concluded that Key Largo woodrat density was highest in mature forest, and that active stick
nests were strong indicators of healthy Key Largo woodrat populations.
Goodyear (1984) used traplines placed in hammocks the length of North Key Largo, and
concluded that woodrats were found in areas with and without stick nests. She concluded that
woodrats are not dependent on stick nests. She suggested that stick nest constriction was more a
function of habitat conditions and habitats with abundant natural cover had fewer stick nests.
She felt that disturbance could benefit woodrats in habitats with few natural cavities such as
recently cleared early successional sites. She believed older hammocks with increased structural
complexity were prime habitat.
Humphrey (1988) based his study on grid trapping conducted at six sites on North Key Largo in
1986. Low -density Key Largo woodrat sites were found on the north end of North Key Largo
and averaged 1.3 per acre. Sites further south had higher woodrat densities, averaging 4.9 per
acre. Humphrey concluded that woodrat densities were 7 times the levels reported by Hersh
(1978) and three times the levels previously reported for woodrats. He also concluded that stick
nests were poor estimators of Key Largo woodrat density and tended to underestimate density.
Extrapolating average density over acres of habitat available, Humphrey (1988) estimated 6,500
woodrats in North Key Largo.
In 1995, Frank et al. (1997) initiated a transect and grid study of Key Largo woodrats on North
Key Largo. Prior to this project, Humphrey monitored the Key Largo woodrat in 1986. Frank et
al. (1997) found that in general, Key Largo woodrat densities had declined significantly since the
1986 project, and that stick nests were virtually absent from the habitat. Frank et al. (1997)
expressed concern that low densities coupled with the absence of stick nests could indicate
significant declines in the Key Largo woodrat population and suggested that intensive
monitoring and management be initiated by State and Federal land managers. Since 1997, Key
Largo woodrats have been absent on Lignumvitae Key as evidenced by both trapping and lack of
sign (Greene 2007).
In 1996, the University of Miami initiated a project on the Key Largo woodrat that expanded on
the Frank et al. (1997) project using the same trapping locations and methods (Sasso 1999). The
study did not document increases in either stick nests or woodrat densities. It concluded that
intermediate -aged hammock may provide better habitat conditions than old, mature hammock,
and suggested a possible role for natural disturbance (e.g. hurricanes) in maintaining good Key
Largo woodrat habitat.
Crocodile Lake NWR has continued woodrat monitoring on Key Largo using both transect and
grid trapping annually since 1998. The 2000-2001 survey had 15 transects and four 4.4-acre
grids. The total trap nights were 10,400 with an average trap success of 0.004 percent and an
average Key Largo woodrat density of 1.5 individuals per acre. Trapping initiated in January
2002 by Texas A&M University (TAMU) documented low numbers of Key Largo woodrats and
a high mortality rate of radio -collared individuals. McCleery (2003) trapped 60 randomly -placed
plots on North Key Largo, and found Key Largo woodrats on 10 (17 percent). Winchester
(2007) captured Key Largo woodrats on 7 of 40 randomly placed grids (18 percent). These data
suggest a consistent reduction in the distribution of Key Largo woodrats on North Key Largo.
43
While population trends are difficult to interpret from the various study designs and estimation
techniques (Barbour and Humphrey 1982; Humphrey 1988; McCleery 2003; Potts et al. 2007),
surveys in the last 20 to 25 years suggest a declining population, currently at very low densities
(Florida Fish and Wildlife Conservation Commission [FWC] 2005; McCleery et al. 2006b;
Winchester 2007). Available population estimates do not reliably assess the decline and
population modeling yielded a high risk of extinction for the Key Largo woodrat (McCleery et
al. 2005; McCleery et al. 2006b).
Status and distribution
Reason for Listing: The Key Largo woodrat was first listed as a threatened species in 1969
under the Endangered Species Conservation Act of 1969. However, this only afforded the
woodrat protection on Service lands. The woodrat was listed as endangered for 240 days on
September 21, 1983, through an emergency listing action (Service 1983). The emergency listing
was necessary to provide full consideration of the welfare of this species during a Service
consultation with the Rural Electrification Administration. The proposed action was a
constriction project that would result in habitat loss. The Key Largo woodrat was proposed for
listing as an endangered species with critical habitat on February 9, 1984 (Service 1984a) and
was officially listed as endangered under the Act on August 31, 1984 (Service 1984b). The
proposed critical habitat designation was withdrawn on February 18, 1986 (Service 1986).
Range wide Trends: The status of the Key Largo woodrat is precarious with a declining
population affected by multiple threats. Populations have declined to the point where extinction
is a possibility. Because of the threat of extinction of this species and our lack of understanding
on the specific mechanisms of this decline, the Service initiated a captive propagation project for
the Key Largo woodrat in April 2002. The captive propagation project is a short-term solution to
prevent the extinction of the Key Largo woodrat. In February 2010, 14 captive -bred woodrats
were released into their native habitat at Crocodile Lake NWR. The woodrats, fitted with radio
collars, were tracked for 60 days. Follow-up monitoring of the released woodrats recorded
predation of five of the woodrats. Feral cats were documented as predators of the woodrats and
follow-up trapping removed 12 cats from the release site. Continual monitoring of the released
woodrats has also verified reproduction (Service 2010b).
Threats: The Service and State of Florida have protected the majority of high quality hammock
habitat available for Key Largo woodrats on North Key Largo through acquisition and
management. The most important measure to protect the Key Largo woodrat has been to prevent
development on the remaining habitat on North Key Largo through the acquisition of nearly all
suitable habitats remaining. Both State and Federal governments have spent about $65 million to
acquire 2,147 acres of hammock habitat on North Key Largo. Because of these efforts and
current land use regulations by Monroe County, the threat of future occupied habitat loss from
development on North Key Largo is low.
Factors other than habitat loss appear to be affecting the Key Largo woodrat. The past alteration
of the hammock in southern North Key Largo fragmented available hammock habitat and
reduced the quality of that habitat remaining. There is also an active solid waste transfer station
44
within the occupied range of the Key Largo woodrat. The impact of this facility on the Key
Largo woodrat is unknown. In addition to habitat fragmentation, man-made disturbance has
resulted in enhanced access to the hammocks by exotic species that benefit from disturbance
including feral and domestic cats, exotic constrictor snakes, fire ants, and invasive exotic
vegetation. These non-native species adversely affect the woodrat through predation,
competition, and habitat alteration.
While the specific mechanisms responsible for the decline of the Key Largo woodrat are
speculative, several hypotheses regarding the problem have emerged:
Natural habitat changes: Successional changes towards more mature habitat may have
degraded Key Largo woodrat habitat. Recent observations of Key Largo woodrats
inhabiting refuse piles support this idea. In addition, natural predators may be more
abundant or forage more efficiently in mature hammock (e.g., owls), or natural runways
in the form of fallen logs may be reduced. Hersh (1978) suggested runways are a key
habitat component for the Key Largo woodrat.
2. Habitat loss and degradation: Development in the 1960s and 1970s reduced the extent
of available habitat and degraded the condition of remaining habitat, however since the
1990's, habitat loss and degradation has diminished with the establishment of the ROGO
system in the County and land purchases for conservation by State and Federal entities.
Exotic predators: Fire ants, feral and domestic cats, exotic constrictors (such as the
Burmese python) and black rats (Rattus rattus) are all relatively recent invaders of North
Key Largo and are each potential predators and competitors of Key Largo woodrats.
4. Disease: There is evidence that a parasite carried by raccoons, the roundworm
(Bavlisascaris procvonis), has affected Allegheny woodrats (N. magister) in the northeast
(LoGiudice 2001). There are large numbers of raccoons on North Key Largo, but tests
for roundworms to date have been negative.
Climate change is also considered an important threat to the Key Largo woodrat. Sternberg et al.
(2007) and Su Yean Teh et al. (2008) in their assessment of the middle and upper keys
susceptibility to sea level rise conclude that tropical hardwood hammocks characteristic of the
upper Florida Keys will ultimately be replaced by mangrove communities. Worst -case models
by Bergh (2009) forecast a change (loss) in hammock vegetation of 88 percent by 2100. Fora
species endemic to tropical hardwood hammock (i.e., both the Key Largo woodrat and Key
Largo cotton mouse), the long term projection is that these species will need resource
management intervention for survival of this species in the Florida Keys or translocation to
suitable recipient sites elsewhere.
Summary analysis— Changes since the 1997, 2003, and 2006 BO
The Key Largo woodrat formerly occupied all of Key Largo, but is now restricted to North Key
Largo. The majority of occupied habitat on North Key Largo is under public ownership and
managed for conservation by the Service, the State, and the County. Despite the protected status
45
of this habitat, the Key Largo woodrat continues to decline, and the outlook for recovery is poor.
Current threats to the Key Largo woodrat include predation by feral and domestic cats, predation
by Burmese pythons and other exotic species of constrictor snakes, predation by exotic fire ants,
and stochastic environmental events such as fires and hurricanes (Service 2008). Because of
Federal, State, and county acquisition of woodrat habitat in North Key Largo and the current
land use regulations by Monroe County, the threat of future occupied habitat loss from
development on North Key Largo is low. In February 2010, 14 captive -bred woodrats were
released into their native habitat at Crocodile Lake NWR. The woodrats, fitted with radio
collars, were tracked for 60 days. Follow-up monitoring of the released woodrats recorded
predation of 5 of the woodrats. Feral cats were documented as predators of the woodrats and
follow-up trapping removed 12 cats from the release site. Continual monitoring of the released
woodrats has also verified reproduction (Service 2010b).
Kev tree -cactus
Species/critical habitat description
The Key tree -cactus is a large, tree -like cactus with erect columnar stems, reaching 33 ft in
height. The stems of the tree -cactus are cylindrical, green, succulent, and 2 to 4 inches thick,
with nine to 15 prominent ribs. Areoles bear 15 to 30 acicular spines that are up to 0.78 inch
long and thickly pubescent when young. Flowers are solitary in the upper areoles, nocturnal, and
2.0 to 2.3 inches long. The outer perianth segments of the flowers are green, with tips pointed
(in variation robinii) or rounded (in variation deeringii). The inner perianth segments of the
flowers are white. The style is slightly exserted (in variation robinii) or included (in variation
deeringii). The fruit of the Key tree -cactus is globose, depressed, and 1.4 to 1.6 inches in
diameter. The coat of this fruit is thin, leathery, bright red, and splits open at maturity. The
seeds are small, hard, shiny black, and set in a soft, white pulp (Benson 1982, Britton and Rose
1937, Small 1931).
Life history
Distribution: The Key tree -cactus grows in the coastal hammocks of the Keys (Avery 1982,
Benson 1982, Britton and Rose 1937; Small 1917, 1921) and in the coastal thickets of the
Matanzas and Habana provinces in Cuba (Benson 1982; Britton and Rose 1937). The historical
distribution has been substantially diminished (Avery 1982, Britton and Rose 1937; Small 1917,
1921), with populations on Key West, Boca Chica, Key Largo, and Windley Keys having
become extirpated. Constriction and development activity has been directly responsible for the
destruction of several major Key tree -cactus populations over the past seven decades (Austin
1980, Avery [no date], Britton and Rose 1937, Small 1921, 1924).
Habitat: The Key tree -cactus grows in a narrow range of plant associations that include tropical
hardwood hammocks and a thorn -scrub association known locally as a "cactus hammock." The
major requirements for successful growth of Key tree -cactus are an open canopy and freedom
from frequent floods or frequent fires. Hardwood hammocks inhabited by the species are
typically in an early stage of succession following disturbance (Avery [no date], Small 1917,
1921). Dominant tree species include Bnmelia salicifolia, Bnrsera simarnba, Coccoloba
46
diversl folia, Flcus aurea, Krugioderidrou fcrreiu?i, MetOpium tOx1 fP,7"wv, and Piscidia piscipllla.
The lower canopy story typically contains small dominant species and the following plants:
Amvris elemifera, Ateramuus hicidias, Bumelia celastrina, Capparis flexuosa, Eugenia foetida,
Guapira discolor, Pithecellobium guadeli peuse, Raudia aculeata, and Zauthoxvhuni fagara
(Austin 1980, Weiner [no date]). Hardwood hammocks are upland communities, which are
rarely flooded (only during major storms) and are mesic in character (Weiner [no date]).
The thorn -scrub, "cactus hammock" association occurs at relatively low elevations in the Keys
and is prone to more flooding. Consequently, the canopy of this vegetative community is lower
and more open than hardwood hammocks. Conocarpus erectus and Ximenia americana are the
most typical dominant tree species (Weiner [no date]). Cereus gracilis, Cereus pentagonus, and
Opuntia dillenii are common associates of Key tree -cactus in these habitats. Key tree -cactus
exists on high sites within cactus hammocks that are rarely flooded. These sites support the
hardwood hammock species listed above, but they are rarely extensive enough to allow typical
development of hardwood hammocks.
Mineral soil is, if present at all, a very thin (less than 0.4 inch) layer of rock nibble, calcareous
sands or calcareous marl (Austin 1980). A layer of leaf litter 0.4 inch to 0.8 inch thick is
typically present (Austin 1980). Deeper accumulations of soil occur in pockets and crevices in
the rock. These soils are Histosols (Soil Conservation Service 1975). They are in the "catch-all"
Rockland groups (Jones 1948). There is no detailed work on soil types in the Keys due to their
small area, agricultural insignificance and lack of well -developed soils. Hammocks on Key
West and Boca Chica Key, where Key tree -cactus grew in the past, grow on oolitic limestone.
Soil conditions at these sites are unknown, but were probably similar to those listed above.
Key tree -cactus exists in small, isolated patches or clumps. The patches may consist of a single
plant, or a group of plants may cover an area of several square meters (Austin 1980, Small 1917).
When many plants occur in a clump, most, if not all, of the separate stems likely represent
vegetative (asexual) offshoots of one or a few founders. Vegetative (asexual) reproduction is
common because of old stems being knocked to the ground.
Reproduction: Long distance dispersal and establishment of new tree -cactus populations is
dependent upon the production of seed. However, reproduction within a single population (a
clump) is mostly, if not entirely, vegetative (asexual). This reproductive strategy (formation of
clonal clumps from rooted wind -thrown branches) also accounts, in part, for the clumped
distribution of the species (Adams and Lima 1994). Pollination agents are unknown, but may
include sphingid moths (Adams and Lima 1994). Seed dispersal by birds ((ardinalis cardinalis,
for example) is indicated for this species (Austin 1980). The effective dispersers would be those
fruit -eating birds, which favor openings in the woods.
The Key tree -cactus can flower year-round, but July, August, and September are peak flowering
periods. Mature flowers develop in about 12 to 14 days, and many flowers may occur
simultaneously on a single pseudocephalium (Adams and Lima 1994). Seed dispersal, based on
one observation, occurs in August (Austin 1980; Avery [no date]).
Population dynamics
47
Population Size: As of 2009, the known distribution of this species is restricted to seven
populations on four islands of the Florida Keys (Big Pine Key, Long Key, Lower Matecumbe
Key, and Upper Matecumbe Key) (Adams and Lima 1994, Service 1999, Maschinski 2009a,
Florida Natural Areas Inventory 2009). Six of seven populations are on lands protected through
acquisition or agreements (Maschinski et al. 2009). One is located on private, developable
property currently used for aquaculture.
The Key tree -cactus has probably always been rare in the Keys. The primary cause for this rarity
seems to be the rather restrictive habitat requirements of the species. It grows only on lightly
shaded, upland sites on a limerock substrate. This habitat is not common on the Keys, and,
furthermore, is transient in nature. The habitat preferred by Key tree -cactus occurs primarily in
naturally disturbed patches of hammock (Avery [no date], Small 1917, 1921). The location of
these patches changes with time as disturbed areas re -grow and new sites are disturbed.
In the fall of 2004, Service staff noticed mortality in a population on Long Key (Service 2010a).
Morbid trees showed a lack of living tissue (only woody pith) at the base. This pattern extended
upwards, as an advancing edge of necrotic tissue, towards the branch tips. By November 2004,
the Service recognized the problem as a widespread decline phenomenon afflicting most other
subpopulations (Service 2010a).
Status and distribution
Reason for Listing: The Key tree -cactus was listed as endangered on July 19, 1984 (Service
1984c) because of severe population declines caused by destruction of upland areas in the Keys
for commercial and residential development.
Range wide Trends: Key West once held a large population of this species (Britton and Rose
1937, Small 1917). The last plants apparently died when the final remnants of the original forest
were cleared on the island during the 1920's (Small 1921). Plants on nearby Boca Chica Key
(Britton and Rose 1937) presumably shared the same fate. Populations reported for Key Largo,
Windley Key and Lower Matecumbe Key (Small 1917) were presumed to have been destroyed
(Avery 1982); however, the population on Lower Matecumbe Key was rediscovered (Adams and
Lima 1994).
Adams and Lima (1994) conducted the first quantitative survey of all Key tree -cactus sites,
which serves as the baseline for analyzing population trends. Fairchild Tropical Garden began
regular annual monitoring of populations in 2007. Data for 2007 through 2009 show that four
populations continued to decline in number of stems and that two appear stable (Maschinski et
al. 2009). A seventh population, located on Long Key, was last surveyed in 2006, when it
consisted of six small plants (Klett, personal communication 2006). As of July 2009, there were
approximately 260 plants spread across seven populations (Maschinski et al 2009). The species
has experienced a decline of about 80 percent of all plants and 88 percent of all stems from 1994
to 2009 (Maschinski et al 2009). Continued annual monitoring will be important in determining
if the decline trend is continuing or if the populations are becoming stable. The recent decline
phenomenon has left most populations with only a fraction of the individuals they had just 10
years ago, and this very likely has greatly diminished the overall viability of these populations.
48
Ex situ conservation measures that have been implemented for Key tree -cactus include long term
seed storage at the National Center for Genetic Resource Preservation in Fort Collins, Colorado,
representing multiple maternal lines. Cuttings from a large number of plants, and from all
populations, are being grown at Fairchild Tropical Gardens in Miami, Florida and the Desert
Botanical Garden in Phoenix, Arizona.
Threats: Development remains a threat to the long-term conservation of this species. The last
remaining population of Key tree -cactus on private land is susceptible to development. Overall,
loss of hardwood hammock habitats to development continues in the Keys, reducing the area of
suitable habitat that Key tree -cactus could expand into or migrate through as habitats shift in
response to sea level rise.
Hurricanes also have the potential to affect tree -cactus populations both directly due to wind
damage and indirectly due to increased salinity from storm surges. Hurricane Georges made
landfall at Big Pine Key in October 1998 and caused severe damage to the tree -cactus population
on the NKDR. Storm surges modify habitat by increasing soil salinity. Maschinski et al. (2009)
suspect high soil salinity is the primary cause of the recent die -off phenomenon.
Storm events are likely to increase in severity due to rising ocean surface temperatures (IPCC
2007). When coupled with sea level rise, more intense hurricanes will likely produce stronger
storm surges that inundate larger areas for longer periods. Scientists predict the threat posed by
storm surges will increase in the future due to increased storm intensity and sea level rise.
Sea -level rise is the largest climate -driven challenge in the sub -tropical ecoregion of southern
Florida (U.S. Climate Change Science Program [CCSP] 2008). According to CCSP (2008),
much of low-lying, coastal south Florida "will be underwater or inundated with salt water in the
coming century." Scientists predict sea level rise will exacerbate inundation, storm surge,
erosion and other coastal hazards. In scenarios modeled by Bergh (2009), partial inundation of
habitat may occur by 2100. Under the worst -case scenario, models predict inundation of a
majority of the Key tree -cactus habitat by 2100. It is likely that under any scenario, that soil
salinity will continue to increase in coastal Florida, either by pulses as with successive storm
surges, or incrementally due to saltwater intrusion. We anticipate these processes will act
separately or synergistically to cause ongoing mortality pulses of Key tree -cactus and eventually
result in the conversion of their existing coastal hammock to transitional habitats and then tidal
areas dominated by mangroves.
Summary analysis— Changes since the 1997, 2003, and 2006 BOs
The Key tree -cactus occurs at seven known locations in the Keys, six of which are on
conservation lands or protected by conservation easement (Service 2010a). One population, on
Long Pine Key, is in private ownership and the lands are subject to development (Service
2010a). Propagation of Key tree -cactus is ongoing at two locations. The main threat to the
continued existence of the unprotected population is development. In addition, the remaining
population is in decline, due to the effects of recent hurricanes and storm surges. The "take" of
49
plants on private property is not a violation of the Act (unless State law also prohibits take).
Therefore, authorization to "take" plants on private property is not required under section
10(a)(1)(B) nor exempted under section 7. However, Federal agencies are required under section
7(a)(2) to make sure that their actions do not jeopardize the continued existence of listed plants.
Lower Kevs marsh rabbit
Species/critical habitat description
The Lower Keys marsh rabbit, one of three subspecies of marsh rabbit (,Svlvilagras pallastris), is
endemic to the Lower Florida Keys. Lazell (1984) recognized the Lower Keys marsh rabbit as a
distinct subspecies. They have short, brown fur and a grayish -white belly. Their feet are small
and their tails are dark brown and inconspicuous. Males and females do not appear to differ
measurably in size or color. This marsh rabbit differs from the peninsular Florida marsh rabbits
(X p. paludicola) in several cranial characteristics (Lazell, 1984). The Lower Keys marsh rabbit
is the smallest of the marsh rabbit subspecies. The Lower Keys marsh rabbit was listed as an
endangered species on June 21, 1990 (Service 1990). There is no critical habitat designated for
the Lower Keys marsh rabbit (Service 2007).
Life history
Distribution: The Lower Keys marsh rabbit's original range extended from Big Pine Key to Key
West, encompassing a linear distance of about 30 miles. Historically, Lower Keys marsh rabbits
probably occurred on most of the Lower Keys that supported suitable habitat, but did not occur
east of the Seven -mile Bridge where it is replaced by X p. paludicola. Faulhaber (2003)
conducted a comprehensive survey for Lower Keys marsh rabbits. The Lower Keys marsh
rabbit is present on many of the larger Lower Keys including Sugarloaf, Saddlebunch, Boca
Chica, and Big Pine Keys and some smaller islands near these keys (Forys et al., 1996;
Faulhaber, 2003). Historically, the species has existed on Middle Torch Key, Big Torch Key
(Lazell, 1984), Cudjoe Key, and may have existed on Ramrod Key, and Key West, but has been
extirpated from these areas. Presently, there is a large gap in the distribution of Lower Keys
marsh rabbits from Cudjoe Key to the Torch Keys.
The following Keys were known to be occupied by Lower Keys marsh rabbit subpopulations
within the period 1988 to 1995: Annette Key, Big Munson Key, Big Pine Key, Boca Chica Key,
East Rockland Key, Geiger Key, Mayo Key, No Name Key, Porpoise Key, Saddlebunch Key,
Saddlehill Key, and Sugarloaf Key (Forys et al., 1996). During subsequent investigations,
conducted from 2001 to 2003, Lower Keys marsh rabbit subpopulations were not found on Big
Munson Key, Porpoise Key, and Saddlehill Key. Investigations between 2003 and the present
have shown that Annette and Howe Keys were extirpated by 2005 (Service 2007).
Reintroduction efforts during 2002 to 2004 resulted in the establishment of rabbits on Little Pine
Key and Water Key (Faulhaber, 2003; Perry, 2005a). Additional Keys with potential rabbit
habitat, as identified by Faulhaber (2003), are Big Torch Key, Cook Key, Cudjoe Key, East
Water Key, Hopkins Key, Howe Key, Johnson Keys, Key West, Little Torch Key, Marvin Key,
Middle Torch Key, Mud Key, Ramrod Key, Snipe Point, and Summerland Key. On the extreme
50
ends of the range, eastern (Big Pine Key area) and western (Boca Chica Key area) populations
exhibit strong genetic differentiation, and limited genetic exchange (Crouse 2005).
The Lower Keys marsh rabbit occurs in small, disjunct populations whose survival depends on
the emigration and dispersal of individuals. In order to persist, the emigration rates of the Lower
Keys marsh rabbit have to be equal to or greater than the death rates. This subspecies may be
less fecund than others, making it more susceptible to demographic and stochastic events (Forys,
1995). Breeding occurs year round and urbanization has affected the Lower Keys marsh rabbit
reproductive potential through loss of habitat. In addition to natural threats, residential and
commercial constriction in the Keys has caused direct mortality to the marsh rabbit and
disrupted their dispersal.
Habitat: Lower Keys marsh rabbits inhabit tidal, brackish, upland, and freshwater environments.
The majority of suitable habitat area lies in a transitional zone between marine environments and
uplands. Cover types that provide habitat include salt marsh, coastal prairie, coastal beach
berms, buttonwood (('onocarpns erectns) woodlands, and salt marsh -buttonwood transition
areas. They also use freshwater wetlands (Faulhaber et al. 2007). Lower Keys marsh rabbit
habitats often include areas of mangrove (red mangrove [Rhizophora mangle], black mangrove
[Avicennia germinans], and white mangrove [Laguncnlaria racemosa]) woodlands within their
home ranges, and the animals regularly pass through mangrove when traveling between their
other habitats (Faulhaber et al. 2007). Similarly, data from recent studies suggests that the
species may range into the edges of pinelands and other upland habitat, although the frequency
and degree of use is currently unknown (Faulhaber 2003). During long-range dispersal events,
such as when a juvenile leaves its natal home range, it is likely that rabbits pass through all
natural terrestrial and wetland environments of the Lower Keys.
Faulhaber (2003) estimated that there were 1,322 acres of occupied habitat, and 689 acres of
potential (unoccupied) habitat. The median size of all of the 228 occupied and potential habitat
patches as delineated by Faulhaber (2003) was 4.5 acres. These habitat patches occur in a
fragmented composite of native and disturbed habitat, with few contiguous areas of native
habitat greater than 12 acres (Forys 1995). Known localities for the rabbit are on privately
owned land, State-owned land, and Federal land within the NKDR, Great White Heron NWR,
and Naval Air Station Key West. Suitable habitat for this species is highly fragmented across all
of the Lower Keys (Forys and Humphrey 1999b).
Typical Lower Keys marsh rabbit habitat includes wet areas with dense cover. Herbaceous
cover in a mixture of grasses, sedges, and forbs is a dominant feature within home ranges. Such
ground cover provides nuns, dens, nesting habitat and food. Many of the grassy marsh and
prairie rabbit habitats are in transitional plant communities that are similar in form and species
composition to communities interspersed among mangrove forests of mainland Florida (Forys
and Humphrey 1994). These wetland communities lie in the middle of the salinity gradient in
the Lower Keys. However, tides rarely inundate many sites. In 1996, the total area of all
suitable occupied habitat was about 625 acres (Forys et al. 1996).
The coastal prairie and wetland systems of the Lower Keys are floristically simple, dominated by
relatively few species of grasses and forbs. These include cordgrasses (,Spartina spp.), seaside
51
oxeye (Borrichia spp.), glassworts (Salicornia spp.), seashore dropseed (Sporobolns virlginicns)
rushes (family Cyperaceae), saltwort (Batis maritima), and marsh fimbry (Fimbristvlis
spadicea). In freshwater marshes, cattails (Tvpha spp.), sawgrass (0adinm jamaicense), sedges
((' erns spp.), and spikerush (Eleocharis spp.) are common components of the vegetation.
Buttonwood is a typical woody component in rabbit habitats. All of the plant communities that
provide rabbit habitats are adapted to fire, to some degree, and some may be fire dependent
systems (Wade et al., 1980).
Perry et al. (2005) evaluated habitat selection of rabbits on Boca Chica Key (Naval Air Station
Key West) during the winter dry season. They assessed the predictive ability of habitat
variables, including visual obstruction, canopy coverage, bunchgrass density, horizontal
obstruction, percent bare ground, percent grass, percent forbs, and percent litter, in delineating
the core areas of rabbit home range from areas not included in core areas. Of these variables,
high visual obstruction, low percent canopy coverage, and high bunchgrass density best
correlated with the presence of Lower Keys marsh rabbit home range cores. The effect of model
parameters also differed by site, indicating that spatial variation was also important in predicting
the presence of home range cores. Home range cores have a dense stricture of low herbaceous
cover, including bunchgrasses. Lower Keys marsh rabbits avoided areas with mature
buttonwoods and high canopy cover. Forys (1995) identified high amounts of bunchgrass and
other ground cover, presence of seaside oxeye, and proximity to large bodies of water as habitat
components selected by Lower Keys marsh rabbits. Forys (1995) concluded that rabbits spend
most of their time in the mid -marsh (seaside oxeye) and high -marsh areas (cordgrasses and
marsh fimbry), both of which are used for cover and foraging, while most nesting occurs in the
high -marsh area.
Behavior: Adult Lower Keys marsh rabbits of the same sex tend to maintain mutually exclusive
home ranges, which average about 0.8 acre. Adult rabbits have permanent home ranges and
females in particular exhibit small dispersal distances. Adults of both sexes have similar home
range sizes, although the size varies widely among individuals. This individual variability may
be due to differences in habitat quality, population density, or the status of an individual in a
social hierarchy. Juvenile Lower Keys marsh rabbits appear to use a home range near their nest
site and, typically, male subadults tend to disperse.
Lower Keys marsh rabbits usually travel through a variety of habitats between their natal and
permanent home ranges including areas with dense ground cover, mangroves, upland hardwood
hammocks, and vegetation between road shoulders and water (Forys and Humphrey 1994).
Marsh rabbits are good swimmers and will swim when pursued (Tomkins 1935). Dispersing
rabbits are susceptible to high mortalities, particularly when there is a lack of habitat between
populations, presence of free -ranging cats, and roads to cross. This species appears to be chiefly
nocturnal, although they can be active on cloudy days and when they are protected by dense
cover.
Reproduction: Marsh rabbits are sexually mature at about 9 months of age. During this time, the
majority of the males disperse. Sexually maturing females are not as likely as males to disperse.
Like other marsh rabbit subspecies, Lower Keys marsh rabbits are polygamous, and generally
breed throughout the year (Holler and Conway 1979). Although Lower Keys marsh rabbits do
52
not display an apparent seasonal breeding pattern (Service 1994), the highest proportion of
females with litters occurs in March and September; the lowest proportion occurs in April and
December.
The Lower Keys marsh rabbit is less fecund than other marsh rabbits. Marsh rabbits in mainland
south Florida (X p. paludicola) can produce 14 to 18 young per female per litter, while only one
to three young (average of 1.77) have been observed per nest for Lower Keys marsh rabbits
(Forys 1995). The average for Lower Keys marsh rabbits is 3.7 litters per year, compared to
marsh rabbits in southern Florida, which average 5.7 litters per year. Some marsh rabbits
experience total litter resorption that can affect their reproductive output. The loss of these ova
can be related to maternal physiological changes in response to stressful events. Rates of litter
resorption in the Lower Keys marsh rabbits are not known.
Feeding: Marsh rabbits are herbivores, feeding on grasses, succulent plants, and herbaceous
shrubs. Lower Keys marsh rabbits feed on at least 19 different plant species, representing 14
families (Forys 1995). The most abundant species in the rabbit's diet include seashore dropseed,
glassworts, cordgrass, seaside oxeye, red mangrove, and white mangrove.
Based on their distribution, Lower Keys marsh rabbits appear to need only limited sources of
freshwater to survive. The Lower Keys marsh rabbit may be able to survive solely on dew and
brackish water, but probably cannot use seawater to meet their need for water.
Population size: Various researchers monitored patch occupancy between 1988 and 1995 by
noting the presence of fecal pellets and other means. In 1995, the Lower Keys marsh rabbit
population was estimated at 275 individuals (Forys et al. 1996). In 2006, based on patch
occupancy, Perry estimated the population at about 500 rabbits (Perry, personal communication
2006). Overall, investigators identified and assessed occupancy in 142 patches during the period
1988 to 1995.
An index of abundance that estimates population numbers more accurately for the Lower Keys
marsh rabbit is patch occupancy, i.e., the number of occupied habitat patches (Faulhaber 2003).
Occupancy rates (the proportion of suitable habitat patches that are occupied) can be compared
among different subpopulation areas or different periods, in order to provide an index of
population decline or growth. For example, Forys et al. (1996) assessed occupancy in 125
patches of suitable habitat (potentially occupied patches). Of the suitable habitat patches in her
sample, 50 (40 percent) were occupied. Subsequently, Faulhaber (2003) attempted to delineate
all patches of potential rabbit habitat, and catalogue occupancy from 2001 to 2003. Faulhaber
(2003) identified and surveyed 228 patches of occupied and potential habitat during that period,
where rabbits occupied 102 patches (45 percent). By 2005, only 52 of the original 71 patches
remained occupied (Faulhaber et al. 2007), indicating a 27 percent decrease since the 1988 to
1995 period. However an additional 45 patches were documented that previously were unknown
(Faulhaber et al. 2007).
Based on the information available, the Lower Keys marsh rabbit currently occupies 112
patches, with a median size of 5.1 acres (Faulhaber et al. 2007). The average home range of a
marsh rabbit is about 0.8 acre (Service 1999). However, the Hurricane Wilma storm surge
53
inundated occupied habitat in 2005 and is believed to have had a significant detrimental effect on
the marsh rabbit (Perry 2006, Schmidt 2009).
Population stricture: The Lower Keys marsh rabbit exists in a metapopulation stricture (Forys,
1995; Forys and Humphrey 1999a; Faulhaber 2003). Rabbits occupy distinct patches of habitat.
Clusters of adjacent patches comprise subpopulations. Rabbits living in these habitat patches are
socially isolated from rabbits in other patches and subpopulations, but interact through dispersal
(Forys et al. 1996). Distance among habitat patches is important because the ability of rabbits to
recolonize vacant habitat patches depends upon the presence of viable habitat corridors. At the
subpopulation level, interchange of rabbits may be rarer, depending on the distance between
subpopulations. At the broadest scale, subpopulations may be so distant from other
subpopulations that interchange may be nonexistent, and they constitute demes (isolated
populations). For example, western subpopulations such as those on Boca Chica, Geiger, and
Big Coppitt Keys are part of a metapopulation that is isolated from the metapopulation that
encompasses Big Pine Key. Crouse (2005) identified strong genetic subdivisions between
eastern and western populations.
A natural feature of metapopulation dynamics is periodic local extinctions (extirpation in
patches) and recolonization (immigration from extant patches). The probability that a population
can persist in isolation depends on its initial size and the capacities of the resource base. In
general, small populations cannot persist in isolation from other populations. For a population to
persist, adjacent subpopulations are generally required, as they provide necessary sources of
genetic diversity and recolonization. Accordingly, there must be a capacity for dispersal among
patches (Hanski and Gilpin 1991).
Crouse (2005) analyzed patterns of genetic variation within and among island populations of the
Lower Keys marsh rabbit, using mitochondrial sequence data (control region; 763 base pairs).
Phylogenetic analyses of the mitochondrial sequences revealed that two main lineages exist
within the subspecies, corresponding with eastern (Big Pine Key area) and western portions
(Boca Chica area) of the range. There was strong genetic separation between rabbit populations
in terms of mitochondrial DNA haplotypes (19 base pairs). Mitochondrial DNA variation was
low, as is typical for island populations. Apparently, the strong phylogenetic differentiation
within the Lower Keys marsh rabbit is due to dispersal barriers. The ramification of the
evidence of lack of dispersal among areas is that the Lower Keys marsh rabbit exists not as a
single small population, but as two small populations. Thus, for the rabbit, small numbers
phenomena may work against the subspecies probability of persistence at multiple spatial scales.
Population variability: Random population fluctuation is evident in the rabbit metapopulation;
several subpopulations were so small and contained so few individuals of the same sex that they
eventually became extirpated (Forys 1995; Forys and Humphrey 1999a). Lower Keys marsh
rabbits, at a density below carrying capacity (Forys et al. 1996), currently occupy about two-
thirds of the habitat identified in the Lower Keys. For a metapopulation to persist requires that
some minimum extent of useable, occupied habitats are available, and configured so that
interchange can occur among them. This subspecies is thought to be less fecund than other
subspecies, making it relatively more susceptible to demographic and stochastic events (Forys
1995), because the potential for rebounding from perturbations or capitalizing on opportunities
54
may be relatively low. The Lower Keys marsh rabbit population may be strongly susceptible to
chance environmental perturbations, such as hurricanes. For example, five out of six rabbits
tracked by radio -telemetry on Boca Chica Key succumbed to Hurricane Wilma, which passed
near Key West on October 24, 2005. On Boca Chica, the number of patches occupied during the
previous dry season (winter) decreased by 33 percent after Hurricane Wilma passed (LaFever
and Lopez 2006).
Status and distribution
Reason for listing: The Lower Keys marsh rabbit was listed because of habitat loss and
fragmentation, predation by cats, and vehicular mortality.
Ranewide trends: Threats to the Lower Keys marsh rabbit have resulted in a decrease in the
number of populations, a decline in the size of the populations, and reduced connectivity among
patches and subpopulations. The Lower Keys marsh rabbit occurs in increasingly smaller, more
fragmented, and isolated populations. Persistence depends on a positive rate of reproduction
along with the ability to disperse, so that immigrants can reverse periodical local extinctions
through recolonization. The probability that a successful colonization event will occur is linked
to the number of potential dispersers and thus population size. In order to persist in the wild,
rates of immigration and reproduction must exceed emigration and mortality. Over time, the
number of recolonized patches must equal or exceed the number of patches that are extirpated.
In recent decades, the number of patches occupied by Lower Keys marsh rabbits has declined
and the area of occupied range has contracted. Fewer occupied patches and lower potential for
interchange between subpopulations reduce the probability of persistence.
A population viability analysis for the Lower Keys marsh rabbit was conducted in 1999 (Forys
and Humphrey, 1999a). The researchers suggest that the Lower Keys marsh rabbit
metapopulations exist in the classic metapopulation stricture, but are declining due, in part, to
low survival. The analysis predicted that this species might become extinct in 20 to 30 years
under the current conditions. The population viability analysis also predicted a high probability
of extinction if mortality from either vehicles or free -roaming cats is not controlled. Of the Keys
studied, persistence of the population on Big Pine Key was predicted to be greater than on other
keys because of larger habitat areas. Forys and Humphrey (1999a) suggest that management
efforts to save the marsh rabbit should focus on developing a plan to reduce cat use of marsh
rabbit habitat. However, the researchers acknowledge that because controlling cats on privately
owned land is a problem, intensive public education on the effects of cat predation should be
considered.
The Lower Keys marsh rabbit occurs in small, largely disjunct subpopulations that cover a
shrinking area. The number of patches of occupied habitat and the rate of occupancy continues
to decline. Monitoring of patch occupancy has illustrated these annual declines (Service 1999;
Perry, 2005a; Faulhaber et al. 2007). Results from rangewide monitoring efforts are available
for four periods: 1988 to 1995 (various investigators; records on file), 2001 to 2003 (Faulhaber,
2003), winter 2003 to 2004, and winter 2004 to 2005 (Perry 2006). Occupancy rates between
these periods declined 6.0, 3.9, and 2.0 percent, respectively. Among all three periods, the net
loss of patches between periods averaged 6.3 patches. Faulhaber et al. (2007) found patch
55
occupancy relatively stable on Big Pine, Sugarloaf and Boca Chica keys between 2001 and 2005,
but recorded a large net reduction on the Saddlebunch Keys.
Considering only patches with rabbits during one or both of the paired survey periods, patch
occupancy declined at 9.5, 7.7, and 4.3 percent, respectively, between sequential periods. The
sample size among these monitoring periods was, 84, 104, and 92, respectively. Sample sizes
are the number of patches surveyed during sequential periods and found to be occupied during
one or both of those periods. For all three comparisons, the average sample size (number of
patches occupied in one or both years) was 93.3. The net loss of patches between the three
periods averaged 6.7 patches. These rates of decline do not reflect potential effects of Hurricane
Wilma in 2005, as the annual rangewide monitoring effort (winter 2005 to 2006) had not yet
been conducted. Additionally, the rates of decline would be slightly greater if not offset by
several patches that were occupied due to translocations. These translocations positively
affected occupancy rates in the periods subsequent to movement and colonization. They
included three patches colonized as of the 2001 to 2003 period (Faulhaber 2003), and one patch
colonized as of the winter of 2004 to 2005 period (Perry 2005a).
Considering only results of the unbroken sequence of annual surveys, which includes the last
three survey periods (two comparisons of annual transitions in occupancy), an average of 98
occupied patches were tracked among periods, the annual rate of attrition averaged 6 percent,
and the net loss of patches averaged six per year. The largest number of occupied patches
identified in any study period was during the 2001 to 2003 period, when 105 occupied patches
were detected, including three patches to which rabbits were translocated.
These observations are consistent with the predictions of decline generated by the Forys and
Humphrey (1999a) population viability analysis. A study of habitat patch occupancy (Service
2007a), based on the presence or absence of fecal pellets, show patches are being extirpated
more than they are being recolonized. Accordingly, the dynamics of remaining occupied patches
is driving the population trajectory.
LaFever and Lopez (2006) conducted a population viability analysis of the Lower Keys marsh
rabbit metapopulation on Boca Chica Key (Naval Air Station Key West). Results were similar to
those of Forys and Humphrey (1999a), which identified the Boca Chica metapopulation the most
prone to extinction. LaFever and Lopez (2006) estimated the probability of persisting for 10
years, under the current conditions, was 41.6 percent. Like Forys and Humphrey (1999a), these
investigators found that control of cat populations on Boca Chica Key would likely have the
greatest benefit to Lower Keys marsh rabbit populations in comparison to other management
action considered.
The Service and collaborators have initiated a reintroduction program for the Lower Keys marsh
rabbit (Service 1999). In 2002, 13 rabbits were translocated to Little Pine Key, which resulted in
successful establishment (Faulhaber et al. 2003). In 2004, seven rabbits were translocated to
Water Key (Perry, 2005a). In both cases, evidence of reproduction was documented on the
newly colonized islands (Perry, 2005a). The colonization of Little Pine persisted after Wilma in
2005, but that of Water Key did not (Service 2007). These efforts have served, to a degree, to
offset some of the trends discussed above, and ameliorate threats.
56
Threats: The Lower Keys marsh rabbit is vulnerable to predation by free -roaming cats, habitat
loss and degradation, fire suppression, vehicular traffic, hurricanes, sea level rise, fire ants, and
exotic constrictor snakes. The greatest threats to the continued existence of the Lower Keys
marsh rabbit are predation by cats, habitat loss and degradation, and hurricanes (Service 2007).
These threats not only directly affect the viability of local subpopulations, but also reduce the
probability of successful dispersal among the increasingly fragmented habitats. Connectivity
among suitable habitat patches is necessary for Lower Keys marsh rabbit dispersal among
patches (Forys and Humphrey 1999a), and dispersal is a necessary process if rabbit
metapopulations are to remain self -sustainable.
Free roaming cat mortality - Forys et al. (1996) reported that feral or domestic cats occurred in
14 of 19 rabbit subpopulations newly located during the course of their investigation. These
medium-sized predators are especially effective at taking small mammals such as the Lower
Keys marsh rabbit, and account for significant predation (Forys and Humphrey 1999a). To our
knowledge, a detailed study of free roaming cat diets in the Keys has not been conducted;
however, rabbits were the largest component of feral cat diets in several studies that have been
conducted elsewhere (Jones and Coman 1981; Liberg 1985).
Isolation from free -roaming cats appears to be the most important factor to help this species
survive (Forys and Humphrey 1999a). When different management scenarios were included in
Forys and Humphrey's (1999a) PVA model, the persistence of the Lower Keys marsh rabbit was
extended to 50 years if all predation by cats was removed. In the absence of controlling cat
predation, persistence was not extended appreciably if all vehicular mortality was removed or
reintroductions into vacant patches were conducted. For the Boca Chica Key study, free -
roaming cat -caused mortality was 53 percent of total mortality and vehicular mortality accounted
for about 33 percent. LaFever and Lopez (2006) findings on Boca Chica Key (Naval Air Station
Key West) are consistent with the earlier population viability analysis (Forys and Humphrey
1999a). Like Forys and Humphrey (1999a), these investigators found that cat predation is the
greatest threat to rabbit persistence.
Habitat loss and degradation — The Lower Keys marsh rabbit metapopulation exists as small,
disjunct subpopulations, which require dispersal among subpopulations, because recolonization
of temporarily extirpated subpopulations is periodically required in a metapopulation stricture.
Destruction and fragmentation of habitat may result in habitat patches that are too small to
support the Lower Keys marsh rabbit.
In the past 50 years, more than half the area of the suitable habitat of the Lower Keys marsh
rabbit has been destroyed to constrict residential housing, commercial facilities, utility lines,
roads, or other infrastructure. The dredging of canals and fill in tidal areas for waterfront access
further destroyed and fragmented Lower Keys marsh rabbit habitat. Habitat fragmentation is an
important factor in Lower Key marsh rabbit demographics (Forys and Humphrey, 1999a).
Urbanization has fragmented the sites occupied by this species and eliminated many of the
corridors that allowed movement between the increasingly isolated subpopulations. For
example, commercial and residential development along U.S. 1 effectively creates a barrier to
movement of Lower Keys marsh rabbits between northern and southern Big Pine Key
57
subpopulations. In more urbanized areas where the vegetative cover has been removed and
mowed, dispersing marsh rabbits have no cover from cats and other predators, and face greater
threats from vehicles.
Fire suppression - The lack of fire in both occupied and unoccupied habitat patches may degrade
habitat quality because of floristic changes and succession, including woody encroachment.
Buttonwood is often present in the Lower Keys marsh rabbit's habitat, as a component of, or
totally dominating, the woody, upper canopy. Where buttonwood forms a dense canopy,
herbaceous cover is sparse due to shading and other forms of competition with the buttonwood.
The physical and ecological factors that control the distribution and abundance of buttonwood
are not fully known, particularly in relation to the quality of Lower Keys marsh rabbit habitat. In
these cases, a lack of natural disturbance, which has allowed for the reduction of the herbaceous
layer and dominance of the buttonwood canopy over time, is indicated. Research conducted in
Everglades National Park, (Wade et al., 1980) suggests that in the absence of fire, coastal prairies
transform into buttonwood forest.
In salt marsh, as well as coastal prairie, buttonwood from adjacent transition zones may
proliferate in the absence of fire. In the Lower Keys, salt marsh transition zones are also
interspersed well into upland landscapes. There, as elsewhere, fire is suppressed in the
surrounding matrix of habitats, which include pine rocldand and hardwood hammock.
Accordingly, fire rarely burns through rabbit habitat, including salt marsh -upland transition areas
with buttonwood. Coastal prairie and marsh -upland transition areas, including "buttonwood
transition areas," represent the primary cover type inhabited by Lower Keys marsh rabbit. In the
absence of fire, these areas appear to be vulnerable to encroachment by woody vegetation, and
conversion to buttonwood woodland.
Hurricanes - The magnitude of threats from chance environmental catastrophes, such as
hurricanes, is enhanced due to the characteristics of small, poorly dispersed populations. The
2005 hurricane season was an active one that included Hurricane Wilma, a class three hurricane
that passed near Key West on October 24, 2005. Hurricane Wilma resulted in a storm surge that
covered most of the land area in the Lower Keys. The surge displaced standing water, both fresh
and brackish, in virtually all wetland areas. At the time, seven rabbits were radio collared on
Boca Chica Key, as part of a research project. The fate of six of these could be followed
subsequent to the storm. On October 27, 2005, five of the six were determined to be dead, all or
most due to drowning or other storm effects (LaFever and Lopez 2006). At that time, however, a
search also yielded signs (tracks and fecal pellets) of some surviving rabbits.
Many patches of occupied habitat on Boca Chica Key were monitored in November and
December of 2005, after the passage of Hurricane Wilma, as part of a research project conducted
by TAMU. Considering the 33 patches occupied during the winter monitoring period (2004 to
2005) and re -assessed in the post -Wilma period, patch occupancy declined 33.3 percent between
periods, a net loss of 11 occupied patches.
Hurricanes are a significant threat to the Lower Keys marsh rabbit and reduce the capacity to
resist adverse impacts associated with other threats. It is possible that hurricane impacts to
58
Lower Keys marsh rabbit habitat would be less extensive if the habitat contained more
topographic and vegetative diversity than that present on Boca Chica Key. More topographic
relief would provide more opportunities for refuge above rising water. Other indirect and
delayed effects of hurricanes are unknown. Large amounts of trash, which degrade habitat
quality, were concentrated in rabbit habitat by the receding waters following the hurricane.
Tehicular Mortality - Mortality of Lower Keys marsh rabbits from vehicular collisions has been
documented as an important factor influencing the species (Forys and Humphrey 1999a). Roads
can interfere with movements within the home range and with dispersal preventing essential
interchange between subpopulations (Forys and Humphrey 1999a). Dispersing males are the
most vulnerable to vehicular mortality. Recorded rabbit vehicular mortality totaled four on
Naval Air Station Key West between 1992 and 1994 (Forys 1995). Off -road vehicular activities
also affect the rabbit through habitat degradation and direct mortality. At least one radio -
collared rabbit was killed by an off -road vehicle on Naval Air Station Key West (Forys 1995).
There is limited vehicular mortality on Big Pine Key with three individuals reported killed since
1990.
,Sea level rise - Sea -level rise has been shown to result in degradation and elimination of pine
rocldand in the Keys due to increased salinity of water available to plant roots (Ross et al. 1994).
Impacts on other communities have not been estimated. On Big Pine Key, freshwater wetlands
comprise a significant component of Lower Keys marsh rabbit habitat, and thus profoundly
affect the distribution of suitable habitat. Loss of freshwater wetlands could have widespread,
long-term, detrimental impacts to the Lower Keys marsh rabbit, particularly on Big Pine Key.
LaFever (2006) modeled potential impacts of sea level rise on three Lower Keys marsh rabbit
metapopulation areas and concluded that abandonment of human dominated areas (i.e.,
development and roads), as opposed to protecting them from ongoing sea level rise, may
significantly ameliorate habitat impacts because it could allow for upslope migration of habitat.
Other threats - Nutrients from septic tanks and fertilizers degrade water quality in rabbit habitat.
Illegal dumping and litter deteriorates habitat quality. Exotic fire ants are increasing in marsh
habitat and they pose a threat to newborn rabbits. Burmese pythons and other exotic species of
constrictors recently found in the Keys pose a predation threat to the Lower Keys marsh rabbit.
Big Pine Key HCP: Lower Keys marsh rabbit habitat on Big Pine and No Name Keys is
estimated at 1,045 acres of which 892 acres are in public ownership (85 percent) (696 acres -
Federal [NKDR], 182 acres -State, 14 acres -Monroe County). To address habitat loss and
indirect effects (cat predation) associated with development on Big Pine and No Name Keys, the
Service has issued a section 10(a)(1)(B) ITP to Monroe County, FDOT, and FDCA pursuant to
the Act (Service 2006). Issuance of the ITP exempted take of Lower Keys marsh rabbit buffer
habitat and indirect effects from cat predation. However, no direct take of marsh rabbits or
marsh rabbit habitat was exempted. The take will be incidental to land clearing for development
and recreational improvements. The applicants have developed an HCP that establishes
guidelines for development activities on Big Pine and No Name Keys to occur progressively
over the permit period (20 years) and provides a conservation and mitigation strategy to
minimize and mitigate for impacts to protected species and their habitat. Compensation will be
provided by the acquisition at a minimum of three mitigation units for every one -development
59
unit of affected habitat on Big Pine and No Name Keys. The Service has determined that this
level of incidental take would not jeopardize the survival and recovery of the marsh rabbit.
Summary analysis— Changes since the 1997, 2003, and 2006 BOs
Recovery of the Lower Keys marsh rabbit will continue to be challenging due to the lack of
available habitat, road constriction causing habitat fragmentation and development, increased
mortality due to cats, and increased threats due to exotic pythons and sea level rise. The
potential for recovery will increase if active management of populations and habitats is
undertaken (Forys 1995). Since residential and commercial constriction affected both occupied
and unoccupied sites over the past three decades, opportunities for conservation of the rabbit
have been reduced.
&hans .siralloirtail butterfly
Species/critical habitat description
The Schaus swallowtail butterfly is a large blackish -brown swallowtail butterfly with contrasting
markings that are mostly dull yellow (Klots 1951, Pyle 1981, Opler and Krizek 1984). Their
antennae are black with a yellow knob that has a black tip. Their forewings have a dull yellow
median band from the apex to about midpoint of the inner margin, with a short side branch to
costa about 1/3 distance from the apex. The underside of a Schaus swallowtail's wings is yellow
with black shading mostly in the median and submarginal areas of the forewing and in the
terminal area and tails of the hindwing. A dull brownish red median band extends from costa to
inner margin of the hindwing, narrowing before touching these margins. There is extensive
bluish scaling along the outer edge of the reddish band of the wing. The wingspan is 2.9 to 4
inches (Klots 1951, Pyle 1981, Covell, personal communication, 1985).
The Schaus swallowtail butterfly is most easily confused with the giant swallowtail (Papilio
cresphontes Cramer), which is widespread in eastern North America and occurs in habitat
occupied by the Schaus swallowtail butterfly. The two butterflies are easily separated by size
and color: the giant swallowtail is larger than the Schaus swallowtail and is more nearly coal -
black with brighter yellow lines. The giant swallowtail butterfly has a broader median forewing
band that is more broken into spots, and is less separated from the submarginal band toward the
apex. The giant swallowtail butterfly's antennae are solid black and its tail is teardrop -shaped,
yellow inside bordered with black edging. The reddish markings on the underside of its wings
are less brownish and much less extensive than on the Schaus swallowtail butterfly (Opler and
Krizek 1984).
No critical habitat has been designated for the Schaus swallowtail butterfly.
Life history
Distribution: The present distribution of the Schaus swallowtail butterfly is limited to
undisturbed tropical hardwood hammocks in insular portions of Dade and Monroe Counties,
from Elliott Key in Biscayne National Park (BNP) in the northeast to northern Key Largo to the
60
southwest (Service 1982b, Emmel 1985a, Emmel and Daniels 2005; Service 2008). The last
known mainland specimen collected from the south Miami area was collected at Coconut Grove,
Dade County, in May 1924 (Service 1982b). A single Schaus swallowtail was photographed at
the Charles Deering Estate on May 31, 2006 (Salvato, personal communication 2006). The
individual likely represented a vagrant from BNP. One older specimen was reportedly collected
at Key West (Service 1982b). A colony flourished from 1935 to 1946 on Lower Matecumbe
Key (Service 1982b, Grimshawe 1940), with a single capture recorded there in 1964 (Service
1982b). The Schaus swallowtail butterfly has been known to occur on northern Key Largo from
1940 to present, although rare since the mid-1970s (Service 1982b). The Schaus swallowtail
butterfly has been known to exist on the larger islands of BNP since 1972 (Brown 1973; Covell
and Rawson 1973). Individuals have also been seen in and adjacent to the Crocodile Lakes
NWR. Captive bred butterflies have been released on six sites in North Key Largo, one site on
Lower Matecumbe Key and one site in mainland Miami -Dade County.
The majority of the Schaus swallowtail butterfly population occurs on Adams, Elliott, Old
Rhodes, Swan, and Totten Keys within BNP. Between 1985 and 1990, the Elliott Key
population fluctuated between 600 to 1,000 adults annually, with smaller populations of at least
50 to 100 individuals on each of the other Keys. Hurricane Andrew significantly reduced the
BNP's population in 1993 to 58 identified individuals, however, in 1994 the population
rebounded naturally to over 600 individuals and is presumed stable (Emmel 1995b). Emmel and
Daniels (2005) estimated that 1,200 to 1,400 Schaus swallowtail butterflies occurred range wide,
but those estimates included released individuals (captive -raised Schaus swallowtail butterflies
associated with reintroduction efforts). As in preceding and subsequent years, most Schaus
swallowtail butterflies occurred in BNP.
Although, 30 different wild plant species may be exploited (Emmel 1988, 1995a) as a nectaring
food source, torchwood (Am vris elemifera) and wild lime (Zanthoxvinm fagara) are the primary
food sources for caterpillars. In the major Keys of BNP (Elliott, Old Rhodes, Totten, and Adams
Keys) and on northern Key Largo, the two caterpillar food plants, torchwood and wild lime,
seem adequate to support a healthy population. High numbers of individuals sighted in 1985
(Emmel, personal communication, 1985b) indicate that the Schaus swallowtail butterfly's
population exhibits periodic peaks. BNP also provides adequate cover for both Schaus
swallowtail butterfly adults and food plants (Emmel 1985a, Service 1982b). This cover includes
mature and well -drained tropical hardwood hammock with some natural and man-made openings
such as narrow trails and clearings where nectaring and courting behavior can take place close to
the more enclosed jungle -like forest where adults spend much of their time (Service 1982b).
There have been two possible, but unverified, sightings of Schaus swallowtail butterflies in the
Lower Keys. One Schaus swallowtail butterfly was seen on Big Pine Key in 1966 (Service
1982b) and another on Lignumvitae Key, a State Park, in 1973 (Covell 1976). The sighting on
the latter Key seems possible because the butterfly's food plant, Amvris elemifera (torchwood),
is present on Lignumvitae Key (Covell 1976). A 1984 survey from Elliott Key to Key West
found no Schaus swallowtail butterflies south of North Key Largo (Emmel 1985a); although a
verified sighting occurred on Upper Matecumbe Key in 1986 (Emmel 1986a). In 1985, over 400
Schaus swallowtail butterflies were seen in BNP, and a few were spotted at four sites in northern
Key Largo (Emmel 1985b). In 1986, the population of adult Schaus swallowtail butterflies on
61
Elliott Key was estimated at 750 to 1000 individuals; in the same year, there were an estimated
50 to 80 individuals (adult and immature) on each of Old Rhodes, Totten, and Adams Keys
(Emmel 1986a).
Habitat: The Schaus swallowtail butterfly occurs exclusively in mature subtropical dry forest
(hardwood hammocks) that is now extensive only in the Upper Keys in Dade and Monroe
Counties (Service 1982b). Adults of this species may fly in clearings and along roads and trails,
or even out over the ocean for short distances (Rutkowski 1971, Brown 1973), but they typically
remain in the hammocks proper (Rutkowski 1971). Nectaring activity usually occurs on
blossoms of wild coffee (Psvchotria nervosa), guava (Psidinm gugjava), or cheese shrub
(Morinda rovoc), along the margins of these hammocks; they rarely feed in areas open to direct
sunlight (Service 1982b, Rutkowski 1971).
The Schaus swallowtail butterfly is restricted to a habitat where its primary food plant,
torchwood, grows abundantly (Service 1982b). This habitat is limited to coastal southeast
Florida and the Upper Keys, in mature tropical hardwood hammocks. Prior to human influences,
populations of this butterfly were probably subject to naturally occurring population depressions
caused by hurricane damage, drought, and rare freezes (Covell 1976). The influence of the
Labor Day hurricane of 1935 on the Lower Matecumbe Key population was documented by
Grimshawe (1940).
Other characteristics of Schaus swallowtail butterfly habitats are that they are from 10 to 15 feet
above sea level, away from tidal waters, and have a mature overstory of trees such as the food
plants gumbo -limbo (Bnrsera simarnba), pigeon plum (('occoloba diversifolia), black ironwood
(Krngiodendron ferrenm), West Indian mahogany (Slvietenia mahagoni), and wild tamarind
(Lvsiloma latisilignnm) (Covell 1976). These plants grow on a substrate of Key Largo
limestone, which characterizes the Upper Keys.
Temperature in Schaus swallowtail butterfly habitats range from 74°F in the Miami area to 77°F
in the Upper and Lower Keys. Annual rainfall in habitats in the Miami area ranges from 60 to 65
inches, in the Upper Keys it ranges from 45 to 50 inches, and in the southern Keys, it ranges
from 3 5 to 40 inches.
Dense, mature subtropical hardwood hammock habitat on well -drained substrate with dappled
sunlight penetration is essential for the continued survival of both the Schaus swallowtail
butterfly and its primary food plant, torchwood (Emmel 1985a, Service 1982b, Covell 1976,
Rutkowski 1971, Brown 1973, Loftus and Kushlan 1984). Neither the minimum area nor the
optimum density of primary and secondary food plants is known.
Behavior: The Schaus swallowtail butterfly is territorial to the extent that males have been
observed to investigate other males entering their territories within hardwood hammocks (Emmel
1985a). Emmel (1985a) also notes that male Schaus swallowtail butterflies are remarkably
adapted to flight within hardwood hammocks and are able to pick their way among branches and
around spider webs.
62
The Schaus swallowtail butterflies spend much of their time within hammocks, particularly
where sunlight penetrates to give a dappling effect (Emmel 1985a). Courtship has been observed
along narrow trails cut through the hammock (Rutkowski 1971, Covell unpublished, 1985).
Open areas such as trails or clearings within or near the dense hammock are requisite for
courtship activity and nectaring. These open areas may be natural or man-made.
The Schaus swallowtail butterfly appears to be strictly diurnal. Rutkowski (1971) observed two
female Schaus swallowtail butterflies on different days visiting cheese shrub blossoms just
before 9:00 am, his earliest observation, and another female hovering over cheese shrub at 5:00
pm comprised his last observation. He found both sexes "within the hammocks, fluttering in
diffused light about a foot above the ground at blossoms of Guava..." during the hottest part of
the day (from 1:00 to 2:00 pm).
While no mass migration of the Schaus swallowtail butterfly has ever been reported, an
individual was followed as it crossed a half -mile expanse of Biscayne Bay between two islands
(Brown 1973). In 1986, a Schaus swallowtail butterfly was seen crossing about 1,200 ft from
Old Rhodes Key to Swan Key (Emmel 1986a). These observations suggest that these butterflies
can travel across open water for a considerable distance among the Upper Keys and may be able
to travel to and from the mainland.
Adult Schaus swallowtail butterflies are active primarily in May and June, with most sightings
recorded between mid -April and mid -July (Service 1982b). A few August and September
records suggest either delayed -emergence during a year, or a facultative second brood (Service
1982b, Brown 1976).
There is only one -generation of Schaus swallowtail butterflies per year and adults are short-lived
(Emmel 1985a). There is some evidence from rearing that diapause may extend for at least 2
years (Grimshawe 1940). If this occurs in natural populations, the Schaus swallowtail butterfly
could survive extreme droughts in the season following its larval development by delaying
emergence, perhaps until July -September or later (Rutkowski 1971). Some adults are active
from July to September as well as during the normal flight period of late April through early July
(Brown 1976).
Feeding: Young caterpillars use tender, young leaves of plants such as wild lime (Zanthoxvinm
fagara) and will avoid tougher, older leaves although fifth (final) instar larvae have been
observed eating tougher older leaves of torchwood (Service 1982b) and, in a laboratory, prickly -
ash (Rutkowski 1971). Adults were seen taking nectar from blossoms of guava, cheese shrub,
and wild coffee (Rutkowski 1971, Service 1982b). Guava seemed to be the nectar source
preferred by individuals observed by Rutkowski (1971), and he suggested that the Schaus
swallowtail butterflies will fly some distance from their hammock haunts to find blooming guava
flowers. Emmel (1986a) observed frequent nectaring at seven plant species on Elliott Key:
cheese shrub; blue porterweed (,Stachvtarpheta jamaicensis), sea grape; dog's tail (Heliotropism
angiospernnam), lantana (Lantana invohicrata), salt -and -pepper (Melanthera nivea), and wild
coffee.
Population dynamics
63
Population Size: No detailed status surveys have been conducted for the Schaus swallowtail
since 2003. However, survey data collected during annual North American Butterfly
Association (NABA) counts are available from 2003 through 2008 for Elliott Key (BNP) and
Key Largo, and they provide some information on the status of the Schaus swallowtail. On
Elliott Key, the number of adult Schaus swallowtails encountered on these annual one -day
surveys ranged from 2 to 28 (Salvato, personal communication, 2009). On Key Largo, the
number of adult Schaus swallowtails encountered ranged from 0 to 8 (Salvato, personal
communication, 2009). Emergence of adults is highly dependent on rain, and timing is often of
major significance in survey results. The poor survey results during some years are likely the
result of dry conditions (Salvato, personal communication, 2009), and likely do not represent a
general decline of the species.
Population Variability:
No documentation of variability among populations of this species is available.
Status and distribution
Reason for Listing: The Schaus swallowtail butterfly was listed as a threatened species on April
28, 1976, because of population declines that had been caused by the destruction of its habitat
(tropical hardwood hammocks), mosquito control practices, and over -harvesting by collectors
(Service 1976). The Schaus swallowtail butterfly was reclassified as an endangered species on
August 31, 1984, because its numbers and range had declined dramatically since listing (Service
1984d).
Ranewide Trends: Previous attempts to establish Schaus butterfly populations outside their
current range have failed (Emmel and Daniels, 2005). The most recent investigations of Schaus
swallowtail butterfly populations provided estimates that include Elliot Key in BNP and other
areas (Emmel and Daniels, 2004). The range -wide population in 2003 was about 360 to 400
adults, including 255 on Elliott Key. Elliot Key contains the largest of all extant Schaus
populations. Abundance estimates for Elliott Key from 1999 to 2003 were 212, 253, 115, 264,
and 255, respectively, based on mark and recapture efforts. Emmel and Daniels (2004) indicated
that this period was characterized by drought conditions and late onset of summer rains.
Population numbers appeared to be widespread in BNP and on northern Key Largo and
apparently expanding in 2004, but in 2005 numbers appeared less common and localized
(Salvato, personal communication, 2006). Emergence of adults is highly dependent on rain and
timing is often of major significance in survey results. The poor results in 2005 were likely the
result of dry conditions (Salvato, personal communication, 2006). The status of the Schaus
swallowtail within Key Biscayne National Park remains variable based on annual NABA counts
conducted from 2006 to 2008 (Salvato, personal communication, 2009).
The Schaus swallowtail butterfly was formerly distributed throughout Key Largo, but is now
restricted to hardwood hammocks on North Key Largo. The majority of high quality hammock
habitat available on North Key Largo has been protected through acquisition and is being
managed for conservation by the Service and State of Florida. Because of these efforts and
64
current land use regulations in place by Monroe County, the threat of occupied habitat loss from
development and mosquito spraying on North Key Largo is low. The status of the Schaus
butterfly appears stable. The population is distributed throughout North Key Largo and is
apparently viable based annual NABA counts conducted from 2006 to 2008 (Salvato, personal
communication, 2009).
Clearing of habitat for urban and agricultural purposes in and around Miami, Homestead, and
Lower Matecumbe Key were likely instrumental in eliminating the Schaus swallowtail butterfly
from its type locality in the extremes of its historic range. Food plants were probably either
eliminated or reduced to small stands incapable of sustaining Schaus swallowtail butterfly
populations (Service 1982b). Similar clearing has occurred within its known North Key Largo
habitat, but now most of that habitat is protected.
Slight alterations of habitat, such as dirt roads and trails through the hammocks, seem to be
harmful only in that they would permit easy access to collectors, who could catch butterflies
when they fly low along these trails. However, small clearings and trail edges seem to promote a
proliferation of torchwood plants. Natural succession in such places, particularly following
hurricanes and fires, could account for population increases in the species and its food plants
(Baggett 1985). In addition, efforts to limit clearing of native vegetation by the county and
municipalities have helped curtail the loss of suitable habitat. Furthermore, local government
requirements to plant native vegetation have provided additional habitat for the species.
As part of a recovery action for the Schaus swallowtail butterfly, 760 pupae were released in
1995 on seven protected sites (Emmel, personal communication, 1996). Depredation by birds
accounted for an estimated 85 to 90 percent mortality rate. In 1996, this effort involved the
release of 248 female and 155 male adult Schaus swallowtail butterflies on those same seven
sites. All females were mated prior to release. Apparently, none of the seven reintroductions
was successful in establishing a population outside the current known range of this species
(Emmel and Daniels 2002, Salvato, personal communication, 2006).
Cheeca Lodge, University of Florida, and the Service finalized a Safe Harbor Agreement, and
the Service issued an Enhancement of Survival Permit, in 2001 (expiring 2011). Cheeca Lodge
is a golf course and resort on Upper Matecumbe Key. Wild lime and torchwood, as well as a
variety of nectar -producing trees, were planted on the golf course. These efforts sought to
establish dispersal corridors for the Schaus swallowtail, which might serve to facilitate
recolonization of other habitat in the southern portions of the historical range. Monitoring has
been sporadic. We are not aware of Schaus swallowtail use of the site to date (Salvato, personal
communication, 2009).
Threats: Habitat loss and deterioration due to development and invasion by exotic plants, and
the application of pesticides to control mosquitoes, have historically been the likely causes for
the decline of Schaus swallowtail throughout its range. Over -collecting was a primary threat in
the past. Traffic associated with paved roads through Schaus swallowtail butterfly habitat,
particularly S.R. 905 on northern Key Largo, results in road -kills of adults.
65
Today, aerial application of insecticides for mosquito control may be a key limiting factor on the
distribution of Schaus swallowtail populations. Although most of North Key Largo is not
sprayed for mosquitoes, pesticide application for mosquito control to the remainder of Key Largo
and throughout the southern range of this species is widely believed to be a major factor in the
decline of populations south of North Key Largo (Emmel 1986b). The Florida Keys Mosquito
Control District applies insecticides to control adult and larval mosquitoes. The pesticides
Dibrom, Baytex, and Teknar, used in the Keys for mosquito control, are toxic to the related giant
swallowtail butterfly in the laboratory. The insecticides applied annually in Monroe County
could adversely affect the Schaus swallowtail, including where adulticide drifts over otherwise
protected Schaus habitat. Future advances in insecticide technology, coupled with existing
efforts to minimize habitat loss and plant native vegetation, could allow the species to repopulate
parts of its historic range.
Collecting of immature stages as well as adults may have reduced numbers on Key Largo in the
period 1969 to1974; but again the lasting effects cannot be gauged (Covell 1976). Commercial
exploitation has existed, but its extent cannot be assessed.
Earlier studies found evidence of substantial predation on Schaus swallowtail butterfly life stages
by insectivorous birds and other predators (Emmel 1995b, 1997). Damage to wings occurs soon
after adult emergence, and beak marks on some individuals indicate frequent bird attacks
(Emmel 1985a). Flight behavior among the many obstacles in hammock habitat seems unusually
deliberate, in that the butterflies can fly slowly and painstakingly to avoid the many large orb
spider webs and branches to a remarkable degree (Emmel 1985a). Nothing is known about
parasites of this species. No information is available on diseases of the Schaus swallowtail
butterfly. However, high egg mortality has been observed (Service 1982b, Rutkowski 1971).
Emmel (1995b, 1997) observed various ants to be the major predators of Schaus swallowtail
butterfly larvae. First discovered in Florida in the 1960s, the Mexican twig ant, an exotic insect,
may be responsible for additive mortality, and may have a differential impact on larvae
depending upon their host plant.
Periodic climatic factors such as hurricanes, freezes, and droughts pose additional threats to the
Schaus swallowtail butterfly. The Schaus swallowtail could lose a significant portion of its
remaining populations from hurricanes or frost. The range of this species has decreased
substantially in recent decades. The current range could be reduced or eliminated by a single
hurricane. The Schaus swallowtail is near the limits of its cold -tolerance in south Florida, and a
single freeze could greatly reduce the population.
Sea -level rise in the 20th century has been shown to affect conversions of upland communities
(i.e., hardwood hammock, pine rocldand) with low soil and moisture salinities to communities
comprised of more salt tolerant plant species and higher soil and groundwater salinities in the
Florida Keys (Ross et al. 1994). This phenomenon may result in loss of suitable Schaus
swallowtail butterfly habitat. Over time, the ultimate effect of sea -level rise may be total
inundation in some areas. The general effects of sea -level rise within the range of the Schaus
swallowtail butterfly will depend upon the rate of rise and landform topography. However, the
specific effects across the landscape will be affected by complex interactions between
66
geomorphology, tides, and fluctuations in energy and matter. These effects have yet to be
simulated and projected for the range of the Schaus swallowtail butterfly.
Summary analysis— Changes since the 1997, 2003, and 2006 BOs
No detailed status surveys have been conducted for the Schaus swallowtail butterfly since 2003.
However, survey data collected during annual NABA counts are available from 2003 through
2008 for Elliott Key (BNP) and Key Largo does provide some information on status of the
Schaus swallowtail butterfly. On Elliott Key the number of adult Schaus swallowtail butterflies
encountered on these annual one -day surveys ranged from 2 to 28 (Salvato, personal
communication, 2009). On Key Largo the number of adult Schaus swallowtails encountered
ranged from 0 to 8 (Salvato, personal communication, 2009). Emergence of adults is highly
dependent on rain and timing is often of major significance in survey results. The poor survey
results during some year are likely the result of dry conditions (Salvato, personal
communication, 2009), and likely do not represent a general decline of the species.
The Schaus swallowtail butterfly was formerly distributed throughout Key Largo, but is now
restricted to hardwood hammocks on North Key Largo. The majority of high quality hammock
habitat on North Key Largo is protected through acquisition and is managed for conservation by
the Service and State of Florida. Because of these efforts and current land use regulations in
place by Monroe County, the threat of occupied habitat loss from development on North Key
Largo is low. The status of the Schaus butterfly appears stable. The population occurs
throughout North Key Largo and is apparently viable. In addition, efforts to limit clearing of
native vegetation at the county and municipality level have helped curtail the loss of suitable
habitat. Furthermore, efforts made to plant native vegetation have provided additional potential
habitat for the species. Taken together, these efforts could allow Schaus swallowtail butterflies
to use other portions of its historic range if other limiting factors were addressed (e.g., effects of
mosquito control, predation by exotic insects).
,Wver rice rat
Species/critical habitat description
Spitzer and Lazell (1978) originally described the silver rice rat as a full species based on two
specimens trapped in a freshwater marsh on Cudj oe Key in 1973. The silver rice rat is
distinguished from mainland rice rats based on lighter pelage color, lack of digital bristles on
hind foot, and a narrow skull with elongate nasal bones (Spitzer and Lazell 1978).
Externally, the silver rice rat resembles other marsh rice rats in general form, being a medium-
sized, semi -aquatic, generalized rat. However, the silver rice rat is distinct because it has no tufts
of digital bristles projecting beyond the ends of the median claws in the hind foot, and silver-
gray pelage laterally (Spitzer and Lazell 1978). The body weight of silver rice rats caught in the
field ranges between 2.1 and 5.3 ounces; male rice rats are generally heavier than females
(Spitzer 1983). External measurements of the adult female holotype specimen for this species
(United States National Museum 514995) are: total body length 10 inches, tail 4.8 inches, hind
foot 1.25 inches, and ear 0.7 inch (Spitzer and Lazell 1978).
67
Life history
Distribution: The silver rice rat occurs on thirteen islands in the Lower Keys: Big Pine, Little
Pine, Howe, Water, Middle Torch, Big Torch, Summerland, Raccoon, Johnston, Ramrod,
Cudjoe, Upper Sugarloaf, and Saddlebunch Keys (Vessey et al. 1976, Goodyear 1984, Wolfe
1987, Forys et al. 1996, Perry 2006, Service 2008). Based on the availability of suitable habitat
and proximity to existing populations, the silver rice rat may also occur on several other islands
in the Lower Keys such as Little Torch. Rangewide surveys confirmed that rice rat populations
are not established on Boca Chica, Geiger, East Rockland or Big Coppit Keys (the islands that
encompass the Naval Air Station Key West) (Perry 2006).
Habitat: The silver rice rat is restricted to a narrow range of wetland habitat types. Populations
are widely distributed and they occur at extremely low densities. Forys et al. (1996) also found
that the silver rice rat occurs at comparable densities in both scrub and fringe mangrove
communities. Microhabitat data from that study and from Goodyear (1989) suggest that this
species spends most of its time in red and black mangroves. The silver rice rat also requires a
large home range. Spitzer (1983) recorded a 56.3-acre home range for a male silver rice rat on
Summerland Key. Forys et al. (1996) observed movements of 1,066 feet in 1 day. The need for
a large home range may indicate a limited supply of food or freshwater resources for the silver
rice rat in the Lower Keys. A low reproductive rate may also be an indicator of limiting food
resources in wildlife populations.
In surveys conducted by Goodyear (1987) and Wolf (1985), rice rats were not found on Big Pine
and Boca Chica Keys despite the availability of large areas of apparently suitable habitat.
However, in a more recent extensive survey, an individual was trapped on the northern tip of Big
Pine Key (Perry 2006). Because of the semi -aquatic habits of the silver rice rat, the extensive
areas it traverses, and fluctuations typical in small mammal populations, it is possible that rice
rats could colonize Boca Chica and Big Pine Keys from existing populations on adjacent islands.
Because black rats compete for food resources and raccoons are predators, these animals could
be factors in the absence or rarity of silver rice rats from Boca Chica and Big Pine Keys
(Goodyear 1984).
Silver rice rats are not found in the Upper Keys presumably because of the lack of suitable
habitat (Goodyear 1987). The first two captures of silver rice rats on Cudj oe Key, considered to
be in the lower keys, were in a freshwater marsh, vegetated mainly with sawgrass and cattails
(Spitzer and Lazell 1978) and Mitchell (1996) also reported trapping them occasionally in
freshwater marshes. Radio telemetry and trapping data from Goodyear (1987) revealed the use
of three topographic zones: low intertidal areas, low salt marsh, and buttonwood transitional salt
marsh. Silver rice rats use low intertidal and low salt marsh habitats during activity periods, and
swales in the low salt marsh are primary foraging sites. Buttonwood transitional salt marsh is at
a higher elevation than other salt marsh habitats, and is used for foraging and nesting (Goodyear
1987). Mitchell (1996) conducted additional work on silver rice rats and found that reproductive
activity is occurring in freshwater habitat and that animals regularly use freshwater marsh on Big
Torch Key.
Behavior: Silver rice rats are nocturnal and range extensively (Spitzer 1983, Mitchell 2000).
Spitzer (1983) estimated the home range of a male silver rice rat on Summerland Key to be 56.3
68
acres. This animal regularly traveled long distances during a single activity period, and traveled
over 0.6 mile in a single night. There is no estimate on the average dispersal distance for silver
rice rats; however, their home range size is much larger than is known for other rice rats (5 to 10
times as large). Studies done by Perry et al. (2005) and Mitchell (1996) support the observation
of far ranging movement by the species.
Feeding: Silver rice rats are generalized omnivores that eat a variety of plant and animal
material (Wolfe 1982). The diet of the silver rice rat includes seeds of saltwort, mangroves,
Borrichia, coconut palm (('ocos macifera), and invertebrates including isopods (Spitzer 1983;
Goodyear 1992). However, they probably eat a greater variety of foods.
Population dynamics
Population Size: Perry et al., 2005 found that the silver rice rat population has apparently
remained stable throughout its range in the last 10 years. The best available estimate of species
population size is 5,000 to 20,000 individuals (Perry et al. 2005).
Population Variability: A variety of ecological factors likely influence reproduction in silver rice
rats throughout the year (Wolfe 1982). The reproduction peak occurs after the wet season, from
October to November. The gestation period for silver rice rats is 21 to 28 days, with litter sizes
ranging from 4 to 6. Spitzer (1983) studied a pregnant female silver rice rat during winter and
observed litter sizes of 3 to 5. The average number of litters that are produced in a year has not
been documented.
Forys et al. (1996) found that juvenile rice rats comprised only 14 percent of the total number of
individuals captured in their study. This is significantly less than results from studies of
Orvzomvs. palustris in Mississippi and Louisiana (Wolfe 1985). Although there is high
survivorship of silver rice rats in the Keys, the low proportion of juveniles in this population may
indicate a low reproductive rate. In addition, Forys et al. (1996) found that the sex ratio of adults
was male biased (66 males:19 females).
Status and distribution
Reason for Listing: The silver rice rat was listed as an endangered species on April 30, 1991
(Service 1991). At that time, the silver rice rat was extirpated from one Key where it formerly
occurred and believed to be extirpated from two additional Keys. It was listed as endangered
due to destruction of wetland habitat by development, predation, competition, and habitat
modification from various introduced mammals. In the final rile listing the silver rice rat as an
endangered species, the Service determined that critical habitat designation was not prudent
(Service 1991). A reexamination of potential threats led the Service to conclude the illicit
takings arising from publication of critical habitat were not so serious as to render designation of
critical habitat imprudent. Critical habitat was designated on September 30, 1993 (Service
1993c). Critical habitat is designated on eight islands in the Lower Keys, and is restricted to a
narrow range of wetland habitat types.
69
Threats: The primary threat to the silver rice rat is degradation and loss of wetland habitat where
this species occurs (Barbour and Humphrey 1982a). Silver rice rats require expanses of high -
quality salt marsh habitat. They are extremely limited in habitat occupancy, occurring in salt
marsh and transitional buttonwood habitats. Constriction activities typically result in the direct
loss of habitat as well as secondary effects that extend into surrounding habitats. Related
secondary effects include habitat fragmentation and an increase in the densities of black rats and
domestic cats. Cats are predators of silver rice rats and there is evidence of habitat competition
between silver rice rats and black rats.
Domestic cats are abundant throughout the Lower Keys, and sometimes forage in the higher
elevation salt marsh habitats also used by the silver rice rat. Because rodents are often the most
abundant items in a domestic cat's diet (Eberhard 1954, Churcher and Lawton 1989), the
potential for domestic cats to prey upon silver rice rats is high. Given the low densities of silver
rice rats throughout the Lower Keys, an increase in cat predation could have an adverse effect on
this species. Raccoons, however, may be a more significant cause of mortality than cats,
especially because cats primarily stalk prey in the wetland -upland transition zone, and not the
more wetland areas where the rice rat predominates (Perry et al. 2005). In addition, raptors are
documented predators (Wolfe 1982); however, because they are predominantly nocturnal, their
vulnerability to diurnal raptor predation may be low.
Goodyear (1992) has shown that silver rice rats and black rats exhibit extensive niche overlap,
and that islands with high densities of black rats support few silver rice rats. Goodyear's data
suggest that black rats may out -compete silver rice rats for food and habitat resources; in areas of
suitable habitat, the occurrence of black rats may preclude the survival of silver rice rats. Black
rats may also prey upon newborn silver rice rats (Forys, personal communication 1995).
Rodenticides, used to control black rats, also threaten the silver rice rat (Service 1993b).
Other non-native predators, such as fire ants and exotic snakes, may cause direct mortality of
silver rice rats. Fire ants cause declines in populations of small mammals in Texas (Killion et al.
1990, Killion and Grant 1993). The ants are attracted to mucous, so newborn silver rice rats
would be vulnerable to predation. Both adult and young rice rats are vulnerable to predation by
Burmese pythons and other exotic species of constrictors that have been recently found in the
Keys.
In some areas, wetland habitat used by silver rice rats has been altered by the constriction of fill
roads, borrow pits, and mosquito ditches. These alterations may encourage invasion by exotic
vegetation, which may reduce the ability of the habitat to support rice rats.
Some small, isolated, and widely distributed populations of silver rice rats may be vulnerable to
extirpation through random demographic fluctuations, loss of genetic variability caused by a
small population size, and stochastic environmental events (e.g., hurricanes) that may affect the
entire population.
Climate change forecast for the lower Florida Keys predicts a worst -case sea level rise of 23
inches (IPCC 2007). This rise in sea level is predicted by Ross et al. (2009), Bergh (2009), and
LaFevar (2007) to result in the loss of pine rocldands and freshwater wetlands to mangrove
wetland communities. The long range projection for the silver rice rat and silver rice rat critical
70
habitat is unclear at this time as this species not only uses the upland habitats that are in
recession, but also is found and prefers expanses of high -quality salt marsh habitat, which based
on sea level rise projections may become more abundant in the Florida Keys.
Critical habitat for the silver rice rat
Critical habitat: Critical habitat was designated on September 30, 1993, for the silver rice rat and
includes areas containing contiguous mangrove swamps, saltmarsh flats, and buttonwood
transition vegetation (Service 1993b). These vegetation types, as well as cattail marshes, contain
the primary constituent elements of silver rice rat critical habitat. The major constituent
elements of this critical habitat that require special management considerations or protection are:
(1) mangrove swamps containing red mangrove (Rhizophora mangle), black
mangrove (Avicennia germinans), white mangrove (Laguncirlaria racemosa), and
buttonwood (('onocarpns erectns);
(2) salt marshes, swales, and adjacent transitional wetlands containing saltwort (Batis
maritima), perennial glasswort (,Salicornia virginica), saltgrass (Distichlis
spicata), sea ox-eye (Borrichia frutescens), Key grass (Monanthochloe littoralis),
and coastal dropseed (Sporobolns virginicns);
(3) and freshwater marshes containing cattails (Tvpha domingensis), sawgrass
(Cladinm jamaicense), and cordgrass (Spartina spp.).
The original critical habitat proposal included nine Keys totaling 9,362 acres on the following
islands: Little Pine, Water (north of Big Torch, but not the Water Key west of Little Pine), Big
Torch, Middle Torch, Raccoon, Summerland, Cudjoe, Johnston, and Saddlebunch Keys. About
5,003 acres of the proposed critical habitat was within the NKDR boundaries.
After a scientific and economic analysis, the Service concluded there was no justification for
excluding areas from the proposed critical habitat based on economic reasons, although two
areas should be excluded from critical habitat designation because they no longer supported
significant silver rice rat habitat. These two areas totaled 1,032 acres, with 460 acres on
Summerland Key and 572 acres on Cudjoe Key. Both areas are located south of U.S. Highway
1, are urbanized and hence have little remaining suitable silver rice rat habitat. Based on GIS
mapping (Table EA-15) of the constituent elements and the habitat types codified in the 50 CFR
§ 17.95(a), 8,532 acres encompass the critical habitat for this species, of which 6,750 acres (79.1
percent) are in government ownership and about 1,782 acres (20.9 percent) occur in private
ownership. About 315 acres of rice rat critical habitat no longer contain constituent elements and
515 acres are open water. Total acreage in the mapping unit is 9,362 acres. Federal, State, and
local regulations largely prohibit development in wetland habitats where the species is found.
Impacts to critical habitat are only evaluated when there is a Federal nexus (e.g., Federal
authorization or funding). Federal agencies affected by the designation of silver rice rat critical
habitat include the Service's NKDR, Corps, and FEMA (Service 1993b). Seven of the nine keys
in critical habitat are within the NKDR boundaries. Although the NKDR manages for Key deer,
71
the habitat requirements and biological needs of the two species do not conflict. The silver rice
rat's critical habitat designation affects both the Corps' permitting program and the
administration of flood insurance by FEMA. The Corps is required to ensure that issuance of
permits under section 404 of the Clean water Act, does not likely result in the destruction or
adverse modification of critical habitat for the silver rice rat. Permitting actions that may affect
the silver rice rat or areas within silver rice rat critical habitat require section 7 consultation with
the Service. FEMA provides flood insurance for residential and commercial activities, which in
some cases may involve constriction of strictures in silver rice rat critical habitat.
Summary analysis— Changes since the 1997, 2003, and 2006 BOs
The silver rice rat occurs in freshwater and tidal wetlands on several islands in the Lower Florida
Keys. This species requires large, intact marsh systems for its conservation. A significant
amount of occupied rice rat habitat has been protected through public acquisition and
management, but areas also remain in private ownership. Although the wetlands inhabited by
the rice rat are generally protected through wetland regulations, the threat of habitat loss still
exists, albeit it is modest because of limitations on development implemented in the county.
Constriction activities, although limited in rice rat habitat, have increased the number of
predators and competitors, such as dogs, cats, raccoons, birds of prey, exotic constrictor snakes,
and black rats.
The silver rice rat population has apparently remained stable throughout its range in the last 10
years. The best available population estimate ranges between 5,000 to 20,000 individuals (Perry
et al. 2005). In addition, Perry (2006) captured rice rats on two new islands, Big Pine and
Ramrod Keys, where no silver rice rats had been recorded in previous studies. Seven of the eight
keys in critical habitat are within the NKDR boundaries. Although the NKDR is managed for
Key deer, the habitat requirements and biological needs of the two species do not conflict. Of
the 9,362 acres of critical habitat within the boundaries of the designated area, 8,532 acres
contain critical elements, 515 acres are mapped as open water, and 315 acres are mapped as no
longer containing constituent elements. Of the 8,532 acres with critical element parameters,
6,750 acres are in public ownership (79.1 percent).
Vock Mand tree snail
Species/critical habitat description
Say first described the Stock Island tree snail in 1830 based on a snail likely collected from Key
West (Say 1830). That specimen was lost and the species was later described by Pilsbry (1946)
using a snail from Stock Island. The Stock Island tree snail is a subspecies in the genus
Orthalicns. Pilsbry wrote that he believed Orthalicns (Subfamily Orthalicinae) migrated through
tropical America on floating trees that were later blown ashore although he provides no specific
evidence of this phenomenon.
Pilsbry (1946) described the Stock Island tree snail as having a shell that "...is rather thin and
light, less solid than [other] races of [Orthalicns]. White to warm buff, this tint deepening near
the lip or behind the later varices; stripes... purplish brown, running with the growth -lines, the
stripes and the streaks often interrupted between the bands, and mostly not extending below the
72
Lower one; growth -rest varices usually 2 to 4 on the last whorl; three spiral banks, the Upper and
Lower interrupted, are indicated, but weaken with age. Apex white, aperture showing the
varices, bands and streaks vividly inside; columella white, straightened above; parietal callus
white or dilute chestnut in old shells. The characteristics that most distinguish this species from
O. reses nesodrvas are the white apex and white columella and parietal callus. These
characteristics are chestnut -brown or darker in O. reses nesodrvas."
Life history
Distribution and habitat: Historically, Stock Island tree snails occurred only on Stock Island and
Key West. Although populations of snails now occur throughout the Keys in hardwood
hammocks, the majority of suitable habitat remains unoccupied. As of 2006, a tabulation of all
well-known and poorly documented sites indicated that Stock Island tree snails occupied
approximately 27 sites, 25 sites in the Florida Keys (Monroe County) and two sites on the
mainland (Miami -Dade County) (Service 2006a). However, for many of those sites,
confirmation as to whether Stock Island tree snails persist in recent years is lacking. Populations
in the northern Keys are believed to have been distributed by collectors. Snails feed on epiphytic
growth on hardwood tree trunks, branches and leaves. The Stock Island tree snail survives best
in hammocks of native trees that support relatively large amounts of lichens and algae. In the
Keys, Orthalicns is limited to those portions of the islands that have minimum elevations of 5 to
11 feet.
Larger trees support more Stock Island tree snails than smaller trees because they provide the
snails with an increased surface area for foraging (Deisler 1987). There is no evidence that
Stock Island tree snails prefer certain tree types or species (Deisler 1987). However, Voss
(1976) wrote that the tree snails generally prefer trees with smooth bark to trees with rough bark,
because the snails would require less energy to crawl over smooth bark. He also believed Stock
Island tree snails would prefer smooth bark because it would make it easier for them to form a
secure mucous seal when they were aestivating, resulting in lower mortalities from dehydration
or accidental dislodgement.
Stock Island tree snails are arboreal except when they move to the forest floor for nesting or
traveling. Hammocks that contain organic soils or leaf litter are probably necessary for nesting
activity and dispersal. No data are available on minimal hammock size needed to support a
viable population of tree snails. Suitable habitat would have to include an area large enough to
provide for foraging and nesting requirements as well as provide for the microclimate (air
temperature and humidity) needed by the Stock Island tree snail.
Behavior: The Stock Island tree snails are active mainly during the wet season. Besides the
reproductive activities discussed above, most of the feeding and dispersion takes place during the
wet season (May through November). Dry periods (usually December through April) are spent
in aestivation in which the Stock Island tree snail forms a tight sealed barrier between the
aperture and a tree trunk or branch. Snails may come out of aestivation briefly to feed during
dry -season rains or go into aestivation during summer dry spells.
73
Feeding: Little is known about the feeding habits or food preferences of the Stock Island tree
snail. Probable food items include a large variety of fungi, algae, and lichens found on many of
the native hammock trees. Mixobacteria and some small mites may serve as a secondary food
source. Feeding can occur anytime during the day or night with peak feeding activity occurring
from late afternoon through the night to mid -morning and during or immediately after rainfall.
Feeding Stock Island tree snails often follow a random twisting path that covers the entire bark
surface, but will move in a straight line if surface moisture is abundant.
Population dynamics
Population Size: Enthusiasts and collectors have introduced Stock Island tree snails to new areas
and it is believed that other, unknown, populations exist. Today, populations of snails are found
throughout the Keys in hardwood hammocks. The Service has current records of 27 populations,
25 in the Florida Keys and 2 in mainland Miami -Dade County.
Population Variability: The snails are hermaphroditic, but cross-fertilization appears to be
common. They mate and nest in late summer and early fall during the wettest part of the rainy
season. They lay about 15 eggs per clutch in a cavity dug into the soil humus layer, usually at
the base of a tree, and take anywhere from 24 to 105 hours to deposit their eggs (Deisler 1987,
McNeese 1989). The eggs hatch during the onset of the rains the following spring. The Stock
Island tree snails immediately proceeded upon hatching to climb adjacent trees. Most nesting
snails appear to be about 2 to 3 years old. They may live for up to 6 years, with 2.11 years being
the mean age for the Stock Island population at the time of Deisler's study (1987). The Stock
Island tree snail's age can be estimated by counting the number of dark "suture -like" lines
resulting from pigment deposition during long dry spells (the dry season).
Status and Distribution
Reason for Listing: The Stock Island tree snail was listed as threatened by the Service on July
1978 (Service 1978) because of population declines, habitat destruction and modification,
pesticide use, and over -collecting (Service 1982c).
Ranewide Trends: McNeese (1997) concluded that the Stock Island tree snail was extinct on
Stock Island. However, snails were observed there 2 years ago in the botanical garden (Hughes,
personal communication, 2006). Recently, a new population was discovered in Key Largo. At
least three populations now exist in South Key Largo. Viable populations are apparently
successful in North Key Largo. Today, populations of snails occur throughout the Keys in
hardwood hammocks. The Service has current records of 27 populations, which many believed
to be populations distributed by collectors.
Threats: The greatest threat to the Stock Island tree snail is the loss and modification of its
habitat, although natural disasters such as hurricanes and drought can have a significant effect.
The snails are also faced with predation by invertebrate predators, such as fire ants. Forys et al.
(2001a) used Florida tree snails (Ligwts fasciatus) as a surrogate for Stock Island tree snails to
assess vulnerability to fire ant predation. In laboratory trials, 19 out of 22 tree snails were killed
by the fire ants within 3 days, some while foraging and others while aestivating. Opossums
74
(Didelphis virginiana) and raccoons (Procyon lotor) are known to prey upon both Orthalicns and
Lignns snails (Voss 1976, Deisler 1987). Iguanas have also been documented to feed upon tree
snails (Townsend et al. 2005).
The dynamics of sea level rise coupled with hurricane surge are a significant threat to the Stock
Island tree snail. Ish-Shalom et al. (1992) suggest that remaining tropical hardwood hammocks
in the lower keys will succeed to mangrove communities. This succession trend is also
suggested by Sternberg et.al. (2007) and Su Yean Teh et al. (2008) for the middle and upper
keys. LaFever et al. (2007) and Ross et al. (2009) in their analysis of endemic species in the
lower Florida Keys, conclude that as sea level rises and habitats critical to the survival of the
species is lost, management actions must include translocation to suitable recipient sites
elsewhere.
Summary analysis— Changes since the 1997, 2003, and 2006 BOs
Loss of habitat from development has been a factor thought to have potentially affected the
Stock Island tree snail, although much suitable habitat is currently unoccupied. The current
range of the Stock Island tree snail includes natural hardwood hammocks in protected lands
throughout the Keys and natural hardwood hammock fragments throughout the Keys where
collectors and conservationists have relocated the species. The subspecies was believed to be
extirpated from its historic range. However, snails were observed 2 years ago in the Key West
Botanical Garden (Hughes, personal communication, 2006).
The Service has reports of several new populations, including Key Largo. At least three
populations now exist in South Key Largo. Viable populations are apparently successful in
North Key Largo. There are now 27 known or reported Stock Island tree snail locations, 25 in
the Florida Keys and two in mainland Miami -Dade County.
ENVIRONMENTAL BASELINE
The Environmental Baseline summarizes the effects of past and present human and natural
phenomena on the status of threatened and endangered species and their habitat in an action area.
The Environmental Baseline also establishes the base condition for natural resources, human
usage, and species usage in an action area, which are used as a point of comparison for
evaluating the effects of a proposed action. This section also includes an evaluation of an RPA
that was in effect from 1997 until 2005. An injunction on the issuance of new NFIP policies in
the Keys has been in place since September 2005.
Other Federal, State, and local agency actions, unrelated to the NFIP, can result in habitat loss
and fragmentation. Some of these actions may be subject to the NFIP floodplain management
requirements and may also be subject to the Mandatory Purchase Requirement, if the property is
located in the Special Flood Hazard Area. For example, a home built in jurisdictional wetlands
would be subject to review under the Clean Water Act (CWA). If a 404 wetland permit is issued
to the property owner for constriction of a building and it is located in a Special Flood Hazard
Area, the building must be constricted to the minimum requirements of the NFIP. If the
property owner obtains a Federal loan, the owner will be subject to the Mandatory Purchase
Requirement. The owner may voluntarily purchase flood insurance if the owner pays cash for
75
the constriction of the building. Further details on impacts from other agency actions, as well as
how we evaluate them in our analyses, are provided below.
In the Environmental Baseline, the Service will:
(1) provide an overview of action agencies, in addition to FEMA, and their regulatory
authorities,
(2) summarize the effects of their actions on threatened and endangered species in the
Keys, to the extent information is available,
(3) summarize the status of the species as a result of these actions, and
(4) describe the RPA in place from 1997-2005, including its effectiveness (see sub-
section entitled "Integration and Synthesis").
To develop these analyses, the Service relied on published sources, documents provided by
FEMA, and documents provided by the State of Florida and Monroe County including
information on flood insurance policies, demographic patterns in the Florida Keys, and other
social and economic information.
The NFIP in the Florida Keys
The NFIP reduces the risk of flood damage by requiring participating communities in Monroe
County to impose suitable land -use controls in floodplain areas as a condition for the county's
eligibility in the program. In return for adopting floodplain management regulations to minimize
the risk of flood damage, FEMA has provided Federal flood insurance coverage to property
owners in the Keys. After participating communities in Monroe County enrolled in the NFIP,
any new constriction or improvements to existing strictures in the SFHAs could not be financed
with Federal funds or loan guarantees unless the property owner had flood insurance.
FEMA provided the Service with information on the issuance of flood insurance policies from
1997 through 2009 (Van Dyke, personal communication, 2009). By 1997, FEMA issued 30,702
policies on individual buildings through direct and "Write -your -own" companies. Of these,
23,724 policies were for residential and commercial units in "unincorporated" Monroe County
and 6,978 were for residential and commercial units in incorporated municipalities in the county.
Unincorporated Monroe County, the Village of Islamorada, the City of Layton, the City of Key
Colonv Beach, the City ofMarathon, and the City of Key West's F000dplain Management
Ordinances.
To enroll in the NFIP, the county and municipalities passed ordinances that restrict land uses and
establish constriction standards to minimize the risk of flood damage to new and substantially
improved strictures.
76
(1) Monroe County's flood damage prevention ordinances are found in Monroe
County Code Chapters 9.5-315, 9.5-316, 9.5-317, 9.5-318, and 9.5-319;
(2) the Village of Islamorada's flood damage prevention ordinances are found in
Village of Islamorada Code Article III, Chapter 6, section 81;
(3) the City of Layton's flood damage prevention ordinances are found in City of
Layton Land Development Regulations, section 30;
(4) the City of Key Colony Beach's flood damage prevention ordinances are found in
City of Key Colony Beach Code Article VIII, Chapter 101, sections 90, 91, 92,
93, 94, 95, 96, 97, and 98;
(5) the City of Marathon's flood damage prevention ordinances are found in
Marathon Code section 9.5-4 and section 9.5 sections 315-324; and
(6) the City of Key West's flood damage prevention ordinances are found in City of
Key West Code Chapter 34, Article 2.
These ordinances also identify standards for issuing development permits in special flood hazard
areas and include requirements for residential constriction, nonresidential constriction,
accessory strictures, manufactured homes in A Zones and coastal high hazard areas (V-zones) to
minimize flood damage. Examples of these standards include:
(1) anchoring constriction to prevent flotation, collapse and lateral movement;
(2) designing sanitary sewage systems to minimize infiltration of flood waters and
contamination from them during flooding;
(3) prohibiting man-made alterations to sand dunes and mangrove stands in V Zones
that could increase potential flood damage;
(4) locating all new constriction landward of the reach of mean high tide;
(5) displaying special flood warnings in special flood hazard areas;
(6) elevating the lowest floor and any electrical and mechanical equipment to a height
at or above the base flood elevation level; and
(7) maintaining the area below the lowest floor of an elevated stricture for parking,
access and limited storage. Any enclosed area in A Zones must have openings in
the foundation wall to minimize hydrostatic pressure. In V Zones, the area below
the elevated stricture must be either free of obstruction or if the area is enclosed it
must be built with insect screening, open lattice work, or breakaway walls.
77
The following table (Table 3) provides the number of insurance policies by year from 1997
through 2009 in the Keys for each of the referenced NFIP participants. Specifically, these are
the number of policies on individual buildings by year and by community and include both new
and renewal policies. The total number of flood insurance policies has decreased annually 8 of
the last 10 years with an average decrease over the 10-year period of 2 percent per year.
Table 3: Total NFIP Policies in the Florida Keys, 1997 to 2009
Total
Policies
Year
Islamorada
Key
Colony
Beach
Key West
Layton
Marathon
Unincorporated
Monroe County
Total
1997
687
6,231
60
23,724
30,702
1998
2
687
6,634
51
25,253
32,627
1999
114
712
6,855
51
25,715
3 3, 44 7
2000
252
719
6,754
49
25,244
33,018
2001
1 403
802
6,783
56
28
24,599
32,671
2002
2,015
815
6,544
88
1,515
20,227
31,204
2003
2,010
835
6,462
88
1,952
19,195
30,542
2004
2,081
856
6,460
96
2,261
18,510
30,264
2005
2,203
874
6,414
96
2,412
17,967
29,966
2006
2,349
911
7,648
104
2,779
17,876
31,667
2007
1 2,366
1 893
1 7,826
1 100
1 2,785
1 17,234
1 31,204
2008
2,237
873
6,622
96
2,463
15,862
28,153
2009*
2,207
866
6,426
96
2,453
15,225
27,274
*as of August 8, 2009.
Table 4, below, shows the number of new policies on individual buildings built by year and by
community between January 1, 1997, and August 8, 2009. These new policies, if associated with
a new residence, are in response to the annual Rate of Growth Ordinance (ROGO) permit
allotment. The ROGO program is explained in more detail in the "Monroe County Government
and Municipalities" section that follows. However, new policies also result from the
replacement of manufactured homes and travel trailers with new modular or constricted homes,
and redevelopment of existing buildings or substantial improvements to existing buildings (e.g.,
replacing an older motel with a new condominium, replacing an older home with a larger new
home, or substantially improving an existing home). The total number of flood insurance
policies has decreased annually in 8 of the last 13 years with a decrease over the 13-year period
of 11 percent.
Table 4: New NFIP Policies in the Florida Keys, 1997 to 2009
New Policies
Year
Key
Colony
Key
Unincorporated
Islamorada
Beach
West
Layton
Marathon
Monroe County
Total
78
New Policies
Year
Islamorada
Key
Colony
Beach
Key
West
Layton
Marathon
Unincorporated
Monroe County
Total
1997
10
132
2
244
388
1998
13
88
1
299
401
1999
31
21
143
1
259
455
2000
30
20
107
1
212
370
2001
24
31
51
0
13
175
294
2002
25
21
48
0
30
157
281
2003
32
17
67
1
26
181
324
2004
38
8
68
3
57
218
392
2005
21
16
73
2
120
184
416
2006
16
11
30
1
92
183
333
2007
37
8
112
1
66
198
422
2008
39
0
49
1
24
108
221
2009
7
0
7
1
17
65
97
Total
300
176
975
15
445
2,483
4,394
*as of August 8, 2009.
Other agency programs and actions in the Florida Kevs
As mentioned earlier, a large number of Federal, State, and local agencies manage or regulate
public and private lands in the Florida Keys or implement programs that have an influence on
population expansion, habitat loss and conversion, fragmentation, and environmental pollution in
ways that adversely affect threatened and endangered species. Below, are summaries of these
programs and their interaction with the direct and indirect effects of the NFIP and related effects
to threatened and endangered species in the Florida Keys.
Since 1986, the Service has formally consulted on 64 actions affecting listed species in the
Florida Keys. Forty consultations were specific to actions affecting the West Indian manatee.
The remaining 24 actions were associated with species addressed in this document. Of these, 13
were associated with section 7 consultations, 9 were associated with section 10(a)(1)(A) permits
(recovery and research), and 3 were associated with section 10(a)(1)(B) permits (HCPs). Table 5
provides a summary of these consultations. As referenced in the table, three of the consultations
were specific to the NFIP as administered by FEMA. The Service determined jeopardy for
several of the listed species evaluated and provided FEMA with an RPA, that if implemented
would preclude jeopardy for the affected species. An analysis of the RPA is discussed in detail
in a later section of this BO. For the remaining consultations, the Service determined that for the
affected species, the proposed actions individually and cumulatively would not result in
jeopardy. The Service also provided separate evaluations of the project that affected silver rice
rat critical habitat and determined that the proposed actions individually and cumulatively would
not result in adverse modification of critical habitat.
Over this same consultation period, the Service also provided informal consultation with Federal
agencies for an additional 336 actions. Three hundred reviews were associated with actions
79
affecting the West Indian manatee. The remaining actions (36) addressed species referenced in
this BO. In each of these evaluations, the Service concurred with the Federal action agencies'
determinations that the proposed actions may affect, but were not likely to adversely affect, the
threatened or endangered species at issue.
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Federal Ref tges in the Florida Kevs
The Service manages four National Wildlife Refuges in the action area encompassing 25,574
acres, up from 23,235 acres in 1997. These Federal lands include the NKDR (8,542 acres), the
Great White Heron NWR (7,407 acres), Key West NWR (2,019 acres), and Crocodile Lake
NWR (about 6,606 acres). The refuge system has increased by over 646.7 acres, primarily the
NKDR (391 acres) and Great White Heron NWR (241 acres), from 2000 to 2010.
The NKDR was established in 1957 to protect the Key deer. The pattern of boundaries of the
administered lands is unique. The NKDR consists of several hundred individual tracts, some as
large as a few hundred acres and as little as 0.1 acre. Most of the NKDR is on Big Pine Key and
No Name Key, interspersed with housing developments and public roads. The rest of the Refuge
lands occur on Big Torch Key, Middle Torch Key, Cudj oe Key, Upper and Lower Sugarloaf
Keys; Knockemdown, Toptree Hammock, Howe, and Annette Keys. In addition to protecting
Key Deer habitat, the NKDR protects about 58 percent of the remaining habitat for the
endangered Lower Keys marsh rabbit.
Crocodile Lake NWR was established in 1980 to protect critical habitats, including prime
feeding and nesting areas, of the American crocodile. The Crocodile Lake NWR also protects
other threatened and endangered species including the endemic Key Largo woodrat, Key Largo
cotton mouse, Schaus swallowtail butterfly, and eastern indigo snake.
Florida Department of Environmental Protection: FDEP provides policy directives to State
agencies and regional and local governments. FDEP also supervises regional water management
districts, and delegates the authority to carry out programs to these water management districts,
other State agencies, and local government agencies. To achieve these goals, FDEP conducts
regulatory programs to control or prohibit air and water pollution and to clean up or restore
polluted land and water resources. It also supports research on environmental issues, and
provides educational and technical assistance to the public for preventing environmental damage.
Several divisions of FDEP have resource management responsibilities in the Keys:
(1) Recreation and Parks;
(2) Marine Resources;
(3) State Lands, which acquires and manages State properties;
(4) Law Enforcement;
(5) Beaches and Shores, which has regulatory jurisdiction for constriction and
excavation activities on sovereign lands seaward of the high-water line in any
State tidal waters or within 50 feet of the mean high water line;
84
(6) Water Management, which manages changes in State surface water quality
standards, including the quality of freshwater lenses in the Keys, and processes
applications for dredge -and -fill permits for projects with more than 10 acres;
(7) Waste Management, which attempts to improve point sources of discharges that
affect water quality and underground storage tanks; and
(8) Water Facilities, FDEP administers and manages the Looe Key and Key Largo
National Marine Sanctuaries in cooperation with the National Oceanic and
Atmospheric Administration (NOAA).
The acreage of State-owned park lands in Monroe County as of January 2006 (FDEP 2006) is
about 80,329 acres, an increase of 7,724 acres over the 72,605 State-owned park acres in 1997
(Smith, personal communication, 2006). State acquisitions since 2006 have added an additional
164 acres of park lands (FDEP 2009). These acreages include submerged and aquatic
environment lands (72,074 acres), as well as uplands (8,420 acres).
Florida Department of Community Affairs: The FDCA is responsible for planning and
regulating land use by approving local government comprehensive plans and land development
regulations. Planning activities are integrated on the regional, State, and local level. The FDCA
also administers the Florida Land Management Act, which provides the statewide framework for
comprehensive plans developed by counties.
The FDCA administers the Florida Coastal Management Program, which is a network of State
agencies that improves the effectiveness and efficiency of implementing existing laws and
programs in the coastal zone. The FDCA also administers the Areas of Critical State Concern
(ACSC) program, which identifies certain regions of the State for special protection based on
perceived threats to significant natural resources and the need to protect public investments in
facilities. The jurisdiction of the program ends about 250 feet below mean high water. The
ACSC designation places limits on upland development and capital improvements and requires
higher water quality standards. ACSC are critical when there is a need to protect public
resources from unregulated or inadequately regulated development. The governor and cabinet
designated Monroe County and the City of Key West as ACSCs in April 1975.
Florida Department of Agriculture and Consumer Services: Within the Keys, the Florida
Department of Agriculture and Consumer Services is primarily responsible for mosquito control,
and its Bureau of Entomology and Pest Control administers the State's mosquito -control
program. Its responsibilities include overseeing all local mosquito -control programs, reviewing
and approving all county or mosquito -control district work plans and work budgets, and
administering State funding programs. In addition, the Bureau of Pesticides registers all
pesticides, including mosquito -control products, for sale and distribution. Using the bureau's
authority, the Department may deny, cancel, or modify the conditions of any pesticide
registration.
Monroe County Mosquito Control District (MCMCD): The MCMCD maintains a program of
abatement for mosquitoes and other insect pests in the Keys. Its primary mission is to provide
9N
effective mosquito control that is responsive to the health and safety of the county's residents
and visitors, while minimizing adverse environmental impacts. The MCMCD operates from Key
West to Key Largo, and serves all municipalities and the unincorporated area of the county.
Florida Keys Aqueduct Authority: Because of the limited drinking water sources in the Keys,
the Florida Keys Aqueduct Authority (FKAA) supplies almost all potable water via a pipeline.
FKAA's water system uses well fields and treatment facilities in Miami -Dade County for its
entire water supply. The FKAA is currently involved, along with some of the municipalities, in
constricting wastewater treatment plants in the Keys. These plants should improve the water
quality in the Keys, both inland and near shore.
Monroe County Government and Municipalities: The Monroe County government manages
most of the land in Monroe County. The Monroe County government consists of five divisions:
Management Services, Public Safety, Community Services, Growth Management, and Public
Works.
There are five municipalities within Monroe County: the Village of Islamorada, the City of
Layton, the City of Key Colony Beach, the City of Marathon, and the City of Key West. Monroe
County and the municipalities manage individual resources and regulate land use following their
adopted comprehensive plans, which conform to specific Florida statutes and administrative
codes. Comprehensive plans updates are subject to review and amendment by the FDCA
(Chapter 163, Part 2 F.S. and Chapter 9J-5 Florida Administrative Codes). Land Development
Regulations adopted by the Monroe County Board of County Commissioners and/or city
councils implement the comprehensive plans.
In 1992, Monroe County and the municipalities, in accordance with FDCA regulations,
established ROGO based upon the ability to evacuate the Florida Keys safely during a hurricane.
At that time, FDCA, Monroe County, and the local municipalities (Key Colony Beach, Key
West, and Layton) agreed that 372 new residential permits could be allocated per year and be in
compliance with hurricane evacuation criteria. At that time, this equated to 255 per year for
unincorporated Monroe County, 92 per year for Key West, 22 per year for Key Colony Beach,
and 3 per year for Layton. Over the 10-year planning period from 1992 to 2002, this equaled
3,720 potential new residential units.
The ROGO program originally allocated 255 units per year to unincorporated Monroe County.
However, when Village of Islamorada incorporated in 1998, 28 of these units were reallocated to
Islamorada. Another 30 units were taken from unincorporated Monroe County's allocation in
1999 when the City of Marathon incorporated. The current ROGO allocations per year are 197
for unincorporated Monroe County, 92 for the City of Key West, 30 for the City of Marathon, 28
for the City of Islamorada, 22 for the City of Key Colony Beach, and 3 for the City of Layton for
a total annual allocation of 372 ROGO units.
The original 10-year allotments were issued all at one time for the City of Key West, Layton, and
Key Colony Beach. However, not all ROGO allocations are used each year. For example the
City of Key West, although allocated 92 ROGO units per year, has not used any in the last 8
86
years. Unincorporated Monroe County, whose allocation is 197 has issued an average of only
155 ROGO unit building permits per year for the past several years.
For assessment purposes, our evaluation is to the year 2023, which is a 13-year period (2010
through 2023). This coincides with the expiration of the Big Pine/No Name Key HCP. The Big
Pine/No Name Key HCP addresses development related effects to three of the nine species in
this BO. In order to maintain consistency between the two reviews, as there is overlap of species
habitat and development related effects, the Service is matching the FEMA NFIP period of
review to the period of time and expiration date of the Big Pine/No Name Key HCP.
Countywide, 4,836 total ROGO units are available through 2023 (372 per year). It is important
to state that one ROGO unit equals one residential unit. For example, a single family home on 1
acre equates to one ROGO unit. Similarly, a five -unit condominium equals 5 ROGO units, even
if the condominium occurs on 1 acre. In both examples, if potential suitable habitat is lost, the
listed species effect is the loss of that 1 acre of habitat, not the number of ROGO units.
('ha ges in the size of the y111man popu%ation in �ollth Florida pY d Allonroe (1011Ylly
Florida's population growth has been rapid since the late 1800's. Just before the turn of the
twentieth century, the total population of southernmost Florida was 32,000 people. Nearly
20,000 of those people lived in Key West. By 1960, Florida had almost 5 million residents, by
1970, there were almost 7 million residents, and by 1980, there were almost 10 million residents.
By 1990, the population of Florida had increased to almost 13 million people. In 2004, the
population of Florida was estimated to be 17,397,161, an increase of 8.8 percent over the year
2000. About half of these people lived in the southernmost counties of Florida. The 2008
population estimate for Florida is 18,328,340, reflecting an increase of 14.7 percent since the
2000 census (U.S. Census Bureau 2010)(http://quickfacts.census.gov/qfd/states/12000.html).
The population of Monroe County, excluding Key West, increased by 67 percent between 1970
and 1980 (Cross 1989), but the actual population size dropped between 1992 and 2000 and again
from 2000 to 2008. In the 1980's, population growth in the southeast region of Florida was more
moderate, but was still more than twice the national rate of growth.
Between 1980 and 1990, the population of Monroe County increased by 14,926, or 32.8 percent.
From 1990 to 2000, the population of Monroe County increased by 1,565, only 2 percent, likely
reflecting the effects of ROGO and substantially higher housing costs. However, the population
of Monroe County decreased by 9 percent in the 8 year period 1992 to 2008. In 2010, the 2008
population estimate for Monroe County was 72,243, a decrease of 9.2 percent from July 1, 2000.
Big Pine Key, in particular, has experienced little growth since 1997 due to the building
moratorium that has been in effect. Based on the annual ROGO allotment of 372 dwellings with
an average of 2.3 people per dwelling (U. S. Census Bureau 2010), the annual proj ect increase in
population is about 856 people or 1.18 percent. Below are the population census data for
Monroe County and the 2023 projected population estimate, which is the BO assessment period.
(U.S. Census Bureau 2010)(http://quickfacts.census.gov/qfd/states/12/12087.html).
87
Table 6: Changes in the Human Population Size in Monroe County, Florida, 1980 to 2008
Year
Population
% change
1980
63,188
-
1990
78,024
23.5%
1992
80,968
3.8%
2000
79,589
-1.7%
2004 (est.)
78,284
-1.6%
2006 (est.)
74,737
-4.5%
2008 (est.)
72,243
2023 (est.)*
83,366
15.4%
*Project increase based on ROGO
Source: U.S. Census Bureau , 2010
(http://www.census.2ov/popest/counties/files/CO-EST2008-ALLDATA.esv)
In addition to the resident population, the tourist and seasonal populations must be considered for
this area. Almost 20 percent of Florida's tourists annually visited South Florida and the Keys in
the late 1980's (Phillips and Larson 1990). The Monroe County Comprehensive Plan found that,
in 1990, seasonal residents accounted for an additional 25,040 people and, on any given day,
there were another 29,105 tourists either staying with family or in hotels or rental property. The
combination of the peals seasonal and resident populations is called the functional population
(NOAA 1995). In 1990, the Key's functional population was estimated at 134,600, with a
population density of 1,300 persons per square mile. This combined population is important
because of hurricane evacuation times for residents and the residents' impact on resources, and
the government's ability to manage those resources.
Changes in Land Uses in Monroe Connty: 1970-2009
In 1992, Monroe County determined how many acres of vacant, developable land were in high
value native habitat, and the extent to which development could be directed away from these
natural areas to locations more suitable for development. This study concluded that Monroe
County had 4,975 acres of high value native habitat remaining.
Residential and Commercial Land Use Trends: Under ROGO (adopted in July 1992),
unincorporated Monroe County was allocated 255 dwelling units per year to be developed
through 2010 (Monroe County 1996). In addition, 239 square -feet of non-residential
development was allocated for every one dwelling unit permitted. Extrapolation of 239 non-
residential square -feet per dwelling unit yields a total potential for the county to permit 60,945
more square feet per year, based on 255 ROGO units. The ROGO allocation was reduced to 197
ROGO units, with a corresponding reduction in the non-residential square -footage, with the
incorporation of the City of Marathon (1999) and the Village of Islamorada (1997).
As previously stated, Monroe County allows 239 square feet of commercial development for
every ROGO unit allocated. Commercial development is eligible for NFIP insurance. If we
multiply the 372 dwelling units allocated each year by 13 years, the period evaluated in the
Effects of the Action section, the product is 4,836 ROGO units. If we multiply 4,836 ROGO
units by 239 square feet, the amount of commercial land equals 26.5 acres and is the amount
evaluated in our assessment.
Although not subject to ROGO allotments, commercial developments are evaluated in individual
communities and Monroe County under a similar point system, with positive and negative
points assessed according to project specific criteria (Monroe County Ordinance 032-2001).
Public Service Land Use Trends: These land uses include education, institutional, public
buildings, public facilities, and recreation. As with commercial developments, these facilities are
eligible for NFIP insurance and are not subject to Tier development restrictions and ROGO
allotments. To estimate future public facility needs, Monroe County, as part of the 1992
Comprehensive Plan, projected facility needs as a percent of the change in residential densities
multiplied by the amount of existing lands to project future land needs. During the period of
review (1992 to 2002), the percent change was 10.6 percent for education, public building, and
public facilities. They projected 0.95 and a 12.8 percent increases for recreation and institutional
demand, respectively. They forecast a 10-year increase of 3,720 ROGO units that would require
106.8 acres, or an average of 1,251 square -feet per dwelling unit.
Following this approach, based on the allotment of 372 ROGO units per year over the 13-year
assessment period, the projected increase is 4,836 ROGO units by 2023. With an average of 2.3
residents per unit, we estimate a 15.4 percent increase for education, public building, and public
facilities. The Monroe County Comprehensive Plan (1997) estimated 1.38 percent and 19.8
percent respectively, for recreation and institutional demands. Using an average parcel size
(2009 Monroe County property list), we estimate 121 acres will be required for these units or an
average of 1,093 square -feet per dwelling unit (Table 7). In our assessment of the distribution of
at -risk lands, we found the average ROGO distribution was 15 percent non-NFIP and 85 percent
NFIP. Therefore, we consider all land use improvement to be an additive component of our
evaluation.
Table 7: Future public service land use estimates
89
Additional
Additional
Percent
Additional
2008 land use
2008
2008 square
increase
sq. in
sq. ft. per
acres per
acres
feet
by 2023
2 3
202
Residential
Residential
Unit
Unit
Education
565
24,611,400
15.4%
3,789,262
81
0.002
Public building
4,290
186,872,400
15.4%
28,771,567
612
0.014
Public Facilities
220
9,583,200
15.4%
1,475,465
31
0.001
Recreational
573
24,959,880
1.4%
344,446
7
0.000
Institutional
668
29,098,080
19.8%
5,761,420
123
0.003
Commercial *MEMENEEM
0
239
0.005
Total
6,316
275,124,960
40,142,161
1,093
0.025
Total 2008 residential
42,173
units
New ROGO units by 2023
4,836
Estimated 2023 residential
47,009
units
* Commerical square foot per ROGO and the increase in Recreational and Institutional uses are established in the
Comprehensive Plan
Tier System: The Monroe County Board of County Commissioners adopted the 20-year future
growth plan (1990 to 2010) in April 1993. The plan is referred to as the 2010 Comprehensive
Plan. In 1995, based on legal challenges questioning the plan's compliance with state law, a
Florida State Hearing Officer, provided a Final Order and Recommendations determining that
the Plan was not in compliance and specified remediation actions. The Order stated, among
other things, that the near shore waters, shoreline sea grasses, and Key deer habitat had reached
or exceeded carrying capacity. Because of the Order, the State of Florida, in cooperation with
Monroe County, developed a 5-year work program (Work Program) that would carry out the
Final Order and Recommendations. The Work Program included the development of a carrying
capacity study and a 20-year land acquisition program. The Carrying Capacity Study was
completed in 2002 and required revisions to the 2010 Comprehensive Plan. The revisions
affected Goal 105, which was modified to provide the framework to implement the Carrying
Capacity Study recommendations and the 20-year land acquisition program. To implement
Carrying Capacity Study and the 20-year land acquisition program, the County developed a tier
system of land development and acquisition in unincorporated Monroe County, which was
adopted on March 15, 2006. The County classified all developable lands into three Tiers: I, III,
and Special Protection Areas (SPAS) — formerly Tier II.
Tier I lands have the highest environmental and natural value. They are areas that are larger than
4 acres of contiguous hammock. Tier I lands are targeted for purchase and only six
unincorporated Monroe County ROGO permits (three in the Upper Keys and three in the Lower
Keys) are allowed annually in Tier I designated areas.
Tier III lands are generally in subdivisions greater than 50 percent developed. Tier III lands have
the least environmental value, and are targeted by the County for development.
90
SPAS have high intrinsic natural value due to habitat, connectivity between existing hammocks,
or other unique natural features, but they are less than 4 acres and may be in heavily developed
or disturbed areas. Development in all three classes is either discouraged or encouraged based
on a point system that takes into account natural values, including native habitat and protected
species.
In our evaluation of Monroe County's Tier designations, we also noted lands designated as Tier
0, Tier 4, and undesignated Tier lands.
Tier 0 lands generally include submerged lands and right-of-ways. In our evaluation of at -risk
lands, potential development of right-of-ways are a component of our public service land use and
submerged lands are a component of our state-owned lands evaluation.
Tier 4 lands by definition in Monroe County's Tier system, are considered military lands and
actions on these lands would be considered a future Federal action and not subject to the NFIP.
We also noted a land development code titled undesignated Tier lands. Monroe County has
placed lands in this designation that were either determined by either Court order and/or land
owner petition to be incorrectly classified. Monroe County's Work Program with the State of
Florida, requires that these Tier -less parcels be re-evaluated and processed into Tier categories,
based upon recommendations made by a Tier Designation Review Committee. The Board of
County Commissioners will ultimately be asked to adopt amendments to the Tier Maps. Since
these lands will ultimately be placed in one of the three Tiers evaluated in this BO, they would
be subject to the Tier analysis conducted in this BO and any potential development impacts
addressed as a component of that particular Tier evaluation.
On the northernmost portion of the Key Largo is a high -density residential and commercial
development known as the Ocean Reef Club. This community consists of about 618 single
family homes, 700 condominiums, an airport, golf course, medical center, several motels, offices
and commercial space and over half -million square feet of lodge or club space. The Ocean Reef
Club has been exempted from ROGO and is not a part of the county's Tier system due to its
proximity to Card Sound Road and ability to evacuate in case of a hurricane (Monroe County
2005). Because the estimated rate of growth over the 13-year review period for unincorporated
Monroe County and local municipalities is estimated at 15.4 percent, we are applying this same
level of growth to at -risk lands in the Ocean Reef Club.
Our analysis also identified a number of suitable habitat acres that fall outside of parcel
boundaries, which we called "other" lands. At -risk lands in the "other" lands category include
those lands outside Monroe County's parcel layer not subject to the ROGO program and include
a composite of state- and federally -owned lands. Development on these lands is unlikely and
would probably consist of recreational uses (i.e., trailheads, canoe launches, etc.). Since
recreational development in Monroe County is typically 1.38 percent of the total lands, we
estimated that 1.38 percent of the "other" lands may be developed. Development on these lands
is considered in our cumulative effects analysis.
Environmental protection
91
Monroe County and the municipalities have environmental measures in their respective codes to
protect and conserve the environment. These measures were similar among local governments
historically, but recently Monroe County made changes in its requirements.
Monroe County
In 2006, Monroe County made changes in its land development regulations to align them with
the Tier system. In the system, evaluation criteria are based on a point system. Points are added
or subtracted for a proposed project based on a defined set of criteria, many of which are
designed to protect the native environment and listed species. Negative points are assigned for
constriction in native habitats and positive points are assigned to projects for various other
criteria. For example, in the previous system, an application that proposed a dwelling unit within
a known habitat of a documented threatened/endangered species was given 10 negative points.
One criterion resulting in positive points is the dedication of lands to Monroe County for
conservation purposes. For example, preservation of a vacant, legally platted, buildable lot or at
least 1 acre of unplatted buildable land located within an existing or proposed conservation area
would result in positive points. The County ranks permit applications by total points and 20 or
more positive points assigned to a proposed project are necessary for it to receive a ROGO
permit.
The County mapped native habitat into the Tier I, SPA and Tier III categories, as mentioned
above. Negative points are also assigned to projects proposing development in Tier 1 and SPAS.
All lands targeted for purchase by the Florida Forever program, Federal refuges, and State parks,
as well as high quality native habitat are classified as Tier L Positive points may be added to
proposed development projects for various conservation measures, for example installing a
sewage treatment apparatus. The most positive points are gained by dedicating buildable lots or
conservation lands to the County. The County has placed restrictions on clearing of native
habitat on developable properties to minimize destruction. Clearing of Tier I habitat is limited to
10 percent, clearing of SPA habitat is limited to 40 percent, and clearing of Tier III habitat is
limited to 60 percent. Permitted clearing criteria under the Tier system adopted by the County
are described in Policy 101.4.22 of the "Proposed Amendments to the Comprehensive Plan,"
Monroe County. The analyses presented in this BO rely in part on the County's Tier System.
Monroe County created a Land Authority in 1986. Among the Land Authority's objectives are
the purchase and preservation of environmentally sensitive lands and the preservation of the
habitats of rare, threatened or endangered species of plants and animals. Monroe County now
requires projects that entail disturbing native vegetation to have a vegetation plan that lists all
native vegetation. Impacts to listed vegetation and native trees over 4 inches dbh (diameter at
breast height) must be compensated for by making cash contribution into the Monroe County
Land Authority's Restoration Fund. These funds are used by Monroe County to restore habitat
on county lands.
Municipalities
The City of Layton and the City of Key Colony Beach are either almost completely built -out or
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have little remaining habitat suitable for federally protected species. Therefore, our discussion of
environmental protective measures will be limited to the Village of Islamorada, the City of
Marathon and the City of Key West.
In general, the municipalities require a vegetation survey, or in the case of more environmentally
sensitive properties, a habitat evaluation. As in Monroe County, the municipalities have adopted
a point system of evaluation for building permit applications. Their point system has criteria
similar to Monroe County's system. Building permit applicants are required to replace listed
plants and native vegetation removed from the constriction site elsewhere on the property. A
conservation easement is granted on the remaining native habitat with the municipality as
grantee. Each municipality has numerous policies and regulations in place to minimize negative
impacts and enhance native vegetation and wildlife. They also have acquisition committees to
identify and purchase conservation lands. The Village of Islamorada, the City of Marathon, and
the City of Key West have restoration funds and transplantation programs they use when it is not
feasible for property owners to replace vegetation on their property. Restoration funds are also
used to clear exotic vegetation and restore disturbed native habitat. Clearing is limited to 10 to
30 percent in high quality habitat.
Public I,and.S and land Acquisition
Protected lands in the action area are managed by Federal, State, County, and non -governmental
agencies (NGO). For our assessment of NFIP effects, we are using the Monroe County Land
Authority Public Conservation Lands data layer (2009) and the Monroe County Land Authority
NGO data layer (2009) to determine the acres protected on conservation lands. Prior to 1999,
there was a total 40,752 acres of conservation lands in the Keys (Table 8). Conservation lands
accrue at an average rate of 547 acres per year. Federally protected lands include the NKDR
(8,542 acres), the Great White Heron NWR (7,407.53 acres), Key West NWR (2,019 acres), and
Crocodile Lake NWR (6,606 acres). The U.S. Naval Air Station owns 6,387 acres, up from
5,700 acres in 1997.
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Table 8: Protected conservation land acreage in the Keys through 2008 and the acres
added per year (Monroe County Conservation Lands 2009 data layer).
Acres of
Public
Conservation
Total
Running
Percent
Additional
Conservation
Lands NGO
New
Total
added
Protection
Lands
Pre-1999
Protected
Acres
40,752
1999
1,522
0
1,522
42,274
3.7%
2000
839
0
839
43,113
2.0%
2001
500
0
500
43,613
1.2%
2002
529
0
529
44,142
1.2%
2003
174
568
742
44,884
1.7%
2004
113
0
113
44,997
0.3%
2005
330
27
357
45,354
0.8%
2006
469
0
469
45,823
1.0%
2007
280
0
280
46,103
0.6%
2008
116
0
116
46,219
0.3%
Total
5,467
46,219
13.4%
Average added per
year
547
2.5%
Expected
new lands to be added
through 2023
7,107
53,326
15.4%
As of January 1, 2006, the State of Florida owned 80,329 acres, an increase of 7,724 acres over
the 72,605 state-owned park acres in 1997. The 2006 acreage includes 7,851 acres of uplands on
nine park sites in the Keys, up from 5,615 acres in 1997. This is an increase of 2,236 acres (40
percent) since 1997. State acquisitions since 2006 have added an additional 164 acres of park
lands (FDEP 2009). These acreages include submerged and aquatic environment lands
(72,074 acres), as well as uplands (8,420 acres).
Two of the larger State conservation properties are John Pennekamp Coral Reef State Park
(3,169 acres of uplands, up from 2,436 acres in 1997), and Key Largo Hammocks State
Botanical Site (2,344 acres of uplands, up from 1,700 acres in 1997). The State -run Florida
Forever Program plans to purchase 18,104 acres and owned 2,768 acres in the Florida Keys as of
2005. The Florida Forever Program (2005) states "The project includes habitat for migratory
birds and virtually all remaining Lower Keys marsh rabbits, Key deer, and the State -threatened
white -crowned pigeon (habitat)."
To date, Monroe County and the State have spent or committed in contracts nearly $200 million
on property acquisition (Monroe County has spent $32 million and the State over $168 million).
Information provided by Monroe County indicates that about 82 percent of the vacant property
acreage in unincorporated Monroe County (excluding Tier III properties, which are about 36
percent of the total) has been acquired. The Work Program directs the County and State to
acquire lands within the Coupon Bight/Key Deer, Florida Keys Ecosystem and North Key Largo
Hammocks. Progress as of February 29, 2008, is reported in the tables below:
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Table 9: Florida Forever Projects
Florida Forever Project Acres, as of FebruaiN- 2008
Coupon Bight/Key Deer
Florida Keys
Ecosystem
North Key Largo
Hammocks
Total
Project Acres
2,830
11,863
4,621
19,314
Acquired Acres
1,768
5,461
3,964
11,193
Remaining Acres
1,062
6,402
657
8,121
Percent Acquired
62%
46%
86%
58%
In 2004 and 2005, two Florida Forever boundary amendments were approved adding about
7,700 acres of environmentally sensitive lands to the three existing Keys project. Since late
2003, the State has spent or committed in contracts to spend approximately $98 million to
acquire Florida Forever project lands in the Keys (FDCA 2008).
Status of species in the action area
As discussed in the Status of the Species section, the entire range of the Key deer, Key Largo
cotton mouse, Key Largo woodrat, Key tree -cactus, Lower Keys marsh rabbit, silver rice rat, and
Stock Island tree snail is exclusively within the action area and a brief summary of the species
information will be provided in this section. For the Schaus swallowtail butterfly whose range
extends outside the action area and into the adjacent northern most county, Miami -Dade County,
a description of that portion of the population present in the action area will be provided. For the
eastern indigo snake, whose range includes suitable habitats throughout Florida and the coastal
plains of Georgia, only a description of that portion of the population present in the action area
will be provided.
Focus Area Maps
To analyze the effects of the proposed action, we compiled what we believe is the best scientific
and commercial information available for the Keys using ArcMap (version 9.1; ESRI 2005), a
computer based Geographic Information System (GIS). Using this information, we constricted
data layers on:
(1) the current distribution and range of threatened and endangered species;
(2) the distribution of potential suitable habitat types based on Monroe County's 2009
habitat maps;
(3) shoreline, primary and secondary roads;
(4) FEMA's FIRMS;
(5) the Service's CBRA maps;
(6) FEMA's flood insurance database;
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(7) parcel databases for Monroe County;
(8) Monroe County and municipalities' lands and permit databases, which include
historical data; and
(9) Monroe County's and municipalities' public and private lands that are managed
for conservation.
Using these data layers, we generated maps for species within the action area. The maps
represent potential suitable (i.e., occupied and unoccupied) habitat for each of these species.
However, some properties may not in fact be suitable habitat due to microclimate, substrate,
vegetation, disturbance, clearing, or development. The maps we generated represent our best
estimation of the current habitat distribution of these species.
To develop these maps, we first identified the native habitat types where the species is usually
found (e.g., hardwood hammocks, salt marsh, etc., See Appendix 1). We then identified the
historical range for each species as well as the current known range. From this, we established
the geographic area for our species assessments and overlaid this layer onto Monroe County's
2009 habitat maps for the Florida Keys (Monroe County 2009). Monroe County's habitat maps
are the most current available and were created using state-of-the-art aerial photography.
We used this method to develop focus area maps for the species considered in this BO including
the eastern indigo snake, Key Largo cotton mouse, Key Largo woodrat, Key tree -cactus, Schaus
swallowtail butterfly, and Stock Island tree snail. However, for the Key deer, Lower Keys marsh
rabbit, and Silver rice rat, we added new information as follows. For the Key deer, we
incorporated occurrence data from Service staff and Key deer researchers (Frank, personal
communication, 2003; Lopez et al. 2003). For the silver rice rat, we added habitat maps
generated by Service staff (Service 2003). For the Lower Keys marsh rabbit, we added habitat
maps developed by Faulhaber (2003), and historical data (Service 2003).
Eastern indigo snake
The indigo snake is suspected to occur in very low numbers in the Keys and, according to Lazell
(1989), the remote, isolated, and possibly distinct Lower Keys populations have not been
systematically surveyed. Cox and Kautz (2000) designated extreme north Florida and extreme
south Florida (including the Florida Keys) as "peripheral areas within the known range." The
home ranges of individual snakes are large, generally ranging from 80 to 400 acres. Researchers
have collected eastern indigo snakes from Big Pine and Middle Torch Keys; this species has also
been historically reported on Big Torch, Little Torch, Summerland, Cudjoe, Sugarloaf and Boca
Chica Keys (Lazell 1989). Moler (FWC, personal communication, 1996) documented eastern
indigo snakes on North Key Largo and believes they are probably restricted to Crocodile Lakes
NWR and the protected hammock areas on that key. The Service is aware of three indigo snake
observations in the Keys in the last 12 years. One verified roadkill occurred on North Key Largo
in 1998 (Duquesnel 1998). The most recent unverified sightings were in the Village of
Islamorada in 2005 (Sheahan, personal communication, 2006). Schmidt et al. (2008) conducted
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a herpetological inventory of Big Pine Key and No Name Key in 2006 and 2007 and did not
observe the eastern indigo snake.
The eastern indigo snake uses a majority of the habitat types available in the Keys, but tends to
prefer open, undeveloped areas (Kuntz 1977). For the purpose of our analysis, potential suitable
eastern indigo snake habitat includes all habitat types in the action area except developed lands,
impervious surfaces, and open water areas (Appendix 1). Based on our GIS analyses (Table EA-
3), 65,552 acres occur in the action area (R3). The amount of habitat in public ownership
(considered protected) is 42,012 acres (64.1 percent) (R4).
Our GIS analysis also shows that 23,541 acres (R5) of potential suitable habitat are present in
both developed and undeveloped parcels, representing 14,413 properties (R7). For assessment
purposes, we consider this 23,541 acres (36 percent) of lands to be at -risk of development.
Figure 3 shows the focus area map for the eastern indigo snake. Two HCPs in the Keys, the Big
Pine and No Name Key HCP and the Nichols -Hendrix HCP, have already addressed impacts to
the eastern indigo snake within their boundaries. Within the boundaries of the aforementioned
HCPs, there are 6,110 acres of total suitable habitat (E B3:D3); 4,956 acres are protected (E
B4:D4). The remaining 1,154 acres (E B5:D5) of at -risk habitat are not considered in our effects
analysis since they have been previously evaluated through the HCP process.
Kev deer
Florida Key deer occupy 20 to 25 islands in the Lower Florida Keys within the boundaries of the
NKDR, with about 75 percent (453 to 517 deer in 2001) of the overall population found on Big
Pine Key (Lopez et al., 2004b). The NKDR and the Great White Heron NWR encompass much
of this range. These refuges are managed for the Key deer and other wildlife. Key deer use all
habitat types including pine rocldands, hardwood hammocks, buttonwood salt marshes,
mangrove wetlands, freshwater wetlands, and disturbed/developed areas (Lopez, 2001). For the
purpose of our analysis, we define potential suitable Key deer habitat to include all habitat types
within the range of the Key deer, including residential subdivisions. Based upon our GIS
analysis (Table EA-4), this is about 30,482 acres (J3). Of this, about 20,226 acres (J4) (66.4
percent) are in public ownership. Focus area lands at -risk total about 10,256 acres (J5), with
about 2,115 acres (B5) found on Big Pine and No Name Keys.
The principal factor influencing the distribution and movement of Key deer in the Keys is the
location and availability of freshwater. Key deer swim easily between keys and use all islands
during the wet season, but fresh water is available on only 13 of the 26 islands during the dry
season (Folk, 1991). Although they use all habitat types, uplands are used more than wetlands
(Lopez et al., 2004b). Key deer use these habitats for foraging, cover, shelter, fawning, and
bedding.
FDOT recently completed two projects on Big Pine Key, one of which adversely affected Key
deer. One project was completed to improve traffic congestion on U.S. 1, which traverses Big
Pine Key and is the only route into the key or to continue south to the Lower Keys. U.S. 1 was a
two-lane highway on Big Pine Key traveling in an east -west direction and had limited center turn
and storage lanes. The intersection of Key Deer Boulevard and U.S. 1 was improved by the
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addition of an eastbound lane on the south side of the U.S. 1. The total paved area increased by
35 percent in that segment of the roadway. A BO issued by the Service (2001a) determined that
the project would result in incidental take of four Key deer annually for the duration of the
project. The BO stated that the level of incidental take was above the baseline average of nine
roadkills per year that already existed on the project segment of U.S. 1. The Service determined
that this level of take was not likely to result in jeopardy to the Key deer.
FDOT completed a second project in January 2003, which was designed to reduce Key deer
vehicular mortality along U.S. 1 on Big Pine Key from mile marker 29.5 to mile marker 33
(Service, 2001b). The project was accomplished through the installation, management, and
monitoring of two wildlife underpasses between mile markers 31 and 33. The underpasses
included fencing to exclude deer from the highway and direct them toward the underpasses.
Additionally, deer guards were placed on access roads where they intersected U.S. 1, in order to
keep Key deer from entering the fenced segment of the highway corridor. Non-structural
improvements were added to other segments of the U.S. 1 corridor including the business
district, in order to minimize road mortalities in those areas. These non-structural improvements
included additional signage, radio advisories, speed control, lighting improvements, and
pavement markings. Take was anticipated to remain at base levels prior to the installation of the
first wildlife undercrossing and diminish over time.
The wildlife crossings were predicted to reduce Key deer mortality by 25.7 percent (27 Key
deer), or 44.4 percent (47 Key deer) of annual road mortalities on U.S. 1. The maximum
reduction in road mortalities estimated by the Service is 40.4 percent (43 Key deer) of all road
mortalities in the project area, or 66.7 percent (78 Key deer) of annual road mortalities recorded
for U.S. 1. This reduction would be expected to extend for the life of the project.
Braden (2005) studied the efficacy of the project and reported that deer -vehicle collisions
(DVCs) had been reduced by 83 to 93 percent inside the fenced area. However, overall DVCs
on U.S. 1 did not change subsequent to the installation of the project.
In 2003, the Service began a Key deer relocation project in an effort to establish viable Key deer
populations on islands other than Big Pine and No Name Keys. The project plan calls for the
release of 24 deer at each of two sites. As of 2006, 40 Key deer have been relocated to Cudjoe
and Sugarloaf Keys. As part of the project, fresh water holes are being maintained and
prescribed fire will be used to improve habitat quality. The relocated animals are reproducing
and the project appears to be successful with offspring being produced at both sites (Parker et al.
2008). Dr. Roel Lopez (personal communication 2006) believes Key deer translocation to be an
important and necessary management strategy in the deer's restoration and long-term survival.
These populations could be important in the event of a natural disaster such as a disease outbreak
or a hurricane. They also provide additional animals for the existing population. These separate
populations also increase the viability of the existing Key deer population.
In 2004, the Service completed a review of the proposed Big Pine Key Park Marina basin fill
located on Big Pine Key, and its effects on the Key deer (Service, 2004). Although vehicular
mortality was expected to be low, the Service recommended reducing speed limits and installing
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speed humps in the area to further reduce risk to the Key deer. This project included deer -
friendly fencing and setbacks from the edge of the abutting streets rights -of -way.
Big Pine Key is the largest of the Lower Keys and forms the center of the Key deer's range. Big
Pine Key and No Name Key serve as a population center as they provide the freshwater sources
and support the majority of the Key deer population (Peterson et al., 2004). Vehicular mortality
is the greatest known source of deer mortality within the action area, especially on Big Pine and
No Name Keys.
To address vehicle mortality and habitat loss associated with development on Big Pine and No
Name Keys, the Service has issued a section 10(a)(1)(B) ITP to Monroe County, FDOT, and
FDCA under the Act. Issuance of the ITP anticipates take of Key deer, Lower Keys marsh
rabbit, and eastern indigo snake on Big Pine and No Name Keys. The applicants have developed
an HCP that establishes guidelines for development activities over the permit period (20 years).
The HCP project area encompasses about 7,203 acres (Table EA-4), including Big Pine Key
(6,012 acres) and No Name Key (1,191 acres). Government owned lands constitute 71 percent
(5,114 acres) of the HCP project area and these lands are already protected under conservation
status. The HCP allows for the loss of a maximum of 168 acres of potential Key deer and
eastern indigo snake habitat and compensation will be provided by the acquisition at a minimum
of three mitigation units for every one development unit of suitable habitat on Big Pine and No
Name Keys. The Service has determined that this level of incidental take would not jeopardize
the survival and recovery of the species.
In consideration of the Big Pine and No Name Key HCP and ITP, the Service considers the lands
subject to this BO as those that are potential suitable Key deer habitat on islands other than Big
Pine Key and No Name Key (7,203 acres of suitable habitat on Big Pine and No Name Keys).
Based on our GIS analyses, the remaining islands provide an additional 23,279 acres (J3-133),
with 15,13 8 acres in public ownership (65 percent) (J4-134). Potential suitable Key deer habitat
within at -risk lands on the remaining islands is about 8,141 acres (J5-135), representing 3,280
parcels (J7-137). Of this acreage, 3,709 acres fall outside the jurisdiction of the NFIP (J6-136).
Figure 4 shows the focus area map for Key deer.
Key Largo cotton mouse
The original range of the cotton mouse probably included all the forested uplands of Key Largo.
The amount of habitat undoubtedly fluctuated depending on hurricanes, wildfires, and
subsequent vegetation succession, but the primary upland vegetation was probably hardwood
hammocks. Key Largo has the highest concentration (4,178 or 72 percent) of platted lots of all
lots in the Upper Keys.
Potential suitable Key Largo cotton mouse habitat is considered to be all hammock, undeveloped
lands, and beach berm as identified in the Monroe County's 2009 habitat maps (Monroe County
2009) (Table EA-7). Known habitat is restricted to North Key Largo, however, we consider all
hammocks (Service 2003) on South Key Largo to be potential suitable habitat and a component
of our analysis. The reasons these lands no longer support the Key Largo cotton mouse are not
99
known, but several factors may be responsible. Remaining hammocks on South Key Largo are
small, isolated, and disturbed, and contain immature hammock vegetation. The cotton mouse
may also be vulnerable to predation or competition from animals associated with man (dogs,
cats, and black rats).
The majority of high quality hammock habitat available on North Key Largo has been protected
through acquisition and is being managed for conservation by the Service and State of Florida.
Because of these efforts and current land use regulations in place by Monroe County, the threat
of occupied habitat loss from development on North Key Largo is low. Frank et al. (1997) noted
that the cotton mouse occurs throughout North Key Largo and seems viable. This finding is
supported by the Service's 5-year review for this species (Service 2009b).
On North Key Largo, potential suitable cotton mouse habitat is about 2,489 acres (E B3:I3), of
which 2,240 acres (90 percent) are in public ownership (E B4:I4). At -risk lands comprise about
251 acres (E B5:I5), representing 413 parcels (E B7:I7). In 1986, the Service issued an ITP to
Nichols -Hendrix, and in 1990 to Ocean Reef Club for adverse effects from loss of habitat
associated with proposed developments in 35 acres of potential suitable cotton mouse habitat.
The Ocean Reef Club ITP was amended in 1999 and extended in 2002. The Service determined
that the impacts associated with the issued HCPs would not jeopardize the survival and recovery
of the endangered cotton mouse. These properties are not represented in our analysis of lands at
risk.
As discussed previously, the Service is also considering the hammocks on South Key Largo that
no longer appear to support the endangered cotton mouse to be potential suitable habitat in this
BO. These lands represent 1,414 acres (E J3:N3) of additional cotton mouse habitat, of which
688 acres (49 percent) are in government ownership (E J4:N4). The acres of at -risk land total
about 726 acres (E J5:N5) and represent 2,848 parcels (E J3:N3). Figure 5 shows the focus area
map for the Key Largo cotton mouse.
We discussed previously the open space requirements of Monroe County, the Village of
Islamorada, the City of Marathon, and the City of Key West. Clearing is limited to 10 to 30
percent in high quality habitat and 50 to 60 percent in moderate to low quality habitat.
Additional regulations require preservation or restoration of habitat to offset vegetation losses
that result from development. Nevertheless, some fragmentation of habitat will likely occur.
Key Largo lroodrat
The Key Largo woodrat occurred historically throughout the forested uplands of Key Largo, but
it is now restricted to about half of its historic range. It now occurs only north of the U.S. 1 —
S.R. 905 intersection. The most important effort to conserve the Key Largo woodrat has been
public land acquisition on North Key Largo. Most of the undeveloped land west of S.R. 905 has
been acquired by the Federal government and is part of the Crocodile Lake NWR. The FDEP, as
part of its North Key Largo Hammocks project, has acquired much of the undeveloped land on
the east side of the road.
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Potential suitable Key Largo woodrat habitat is considered to be all hammock, undeveloped
lands, and beach berm as identified in the Monroe County's 2009 habitat maps (Monroe County
2009) (Table EA-7). Current data indicates that known habitat is restricted to North Key Largo.
Within the North Key Largo woodrat range, potential suitable woodrat habitat is about 2,490
acres (E B3:I3), of which 2,240 acres (90 percent)(E 134:I4) are in public ownership. At -risk
lands comprise about 251 acres (E B5:I5), representing 413 parcels (E B7:I7).
In 1986, the Service issued an ITP to Nichols -Hendrix, and in 1990 to Ocean Reef Club for
adverse effects from loss of habitat associated with proposed developments affecting 35 acres of
potential suitable woodrat habitat. The Ocean Reef Club ITP was amended in 1999 and
extended in 2002. The Service determined that the impacts associated with the issued HCPs
would not jeopardize the survival and recovery of the endangered wood rat. These properties are
not represented in our analysis of lands at risk and are considered part of the baseline. Figure 6
shows the focus area map for the Key Largo woodrat.
As discussed previously, the Service is also considering the hammocks on South Key Largo that
no longer appear to support the endangered Key Largo woodrat to be potential suitable habitat in
this BO. These lands represent 1,414 acres (E J3:N3) of additional woodrat habitat, of which
688 acres (49 percent)(E J4:N4) are in government ownership. The at risk lands total about 726
acres (E J5:N5), representing 2,848 parcels (E J3:N3). Figure 5 shows the focus area map for the
Key Largo woodrat.
We discussed previously the open space requirements of Monroe County, the Village of
Islamorada, the City of Marathon, and the City of Key West. Clearing is limited to 10 to 30
percent in high quality habitat and 50 to 60 percent in moderate to low quality habitat.
Additional regulations require preservation or restoration of habitat to offset vegetation losses
that result from development. Nevertheless, some fragmentation of habitat will likely occur.
Kev tree -cactus
The Key tree -cactus is a unique and rare plant species that occurs only in the Florida Keys within
the United States. Populations of the Key tree -cactus have always been uncommon and widely
scattered (Small 1917, 1921). This species inhabits only lightly shaded upland sites within
fragile tropical hardwood hammock habitats. This habitat type is uncommon in the Keys and is
transient in nature. As tropical hardwood hammocks mature, or as natural thinning occurs, the
suitability for the Key tree -cactus is altered. Populations of this species fluctuate from site -to -
site depending upon the availability of potential suitable habitat.
The Key tree -cactus has probably always been rare because of the restrictive habitat
requirements of the species. It grows only on lightly shaded, upland sites primarily in naturally
disturbed patches of hammock (Avery [no date], Small 1917, 1921). The location of these
patches changes with time as disturbed areas re -grow and new sites are disturbed. The Key tree -
cactus occurs at seven known locations in the Keys, six of which are on conservation lands or
protected by conservation easement. The main threat to the continued existence of the last
remaining unprotected population is habitat loss from private development. However, the "take"
of plants on private property is not a violation of the Act (unless take is also prohibited by State
law.) Therefore, authorization to "take" plants on private property is not granted under section
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10 (a)(1)(B) or section 7. However, Federal agencies are required under section 7(a)(2) to ensure
that their actions do not jeopardize the continued existence of listed plants.
Potential suitable habitat for this species is all hammock and beach berm as identified in the
Monroe County's 2009 habitat maps (Monroe County 2009). Our GIS analysis identified about
9,207 acres of potential suitable habitat with 2,758 acres at -risk on 5,607 parcels (Table EA-9).
Figure 7 shows the potential suitable habitat map for the Key tree -cactus.
Lower Kevs marsh rabbit
The Lower Keys marsh rabbit is endemic to the Lower Keys and inhabits tidal, brackish, and
transitional upland and freshwater environments. The Lower Keys marsh rabbit's original range
extended from Big Pine Key to Key West, encompassing a linear distance of about 30 miles.
Habitat loss and predation by domestic and feral cats have reduced the range of this species. It
occurs on some of the larger keys from Boca Chica, just north of Key West, to Big Pine Key.
The Lower Keys marsh rabbit is habitat specific, depending upon a transition zone of grasses and
sedges for feeding, shelter, and nesting. The majority of potential suitable habitat areas lie in
transitional zones between marine environments and uplands. Potential suitable habitat for the
Lower Keys marsh rabbit is about 19,472 acres (Table EA-10) (J3), of which 13,714 acres (70.4
percent) (J4) are protected on conservation lands. Of the 5,758 acres (J5) of at -risk lands, 3,098
of them (J6) lie in areas not subject to the NFIP. Figure 8 shows the focus area map for the
Lower Keys marsh rabbit.
The current population estimate is about 500 rabbits in the Lower Florida Keys (Perry, personal
communication, 2006). Although habitat loss is responsible for the original decline of the Lower
Keys marsh rabbit, high mortality from feral cats has also occurred and may be the greatest
current threat. Feral cat control is an ongoing operation on Naval Air Station Key West and
lands within the NKDR. However, feral cat control activities outside Air Force lands and the
NKDR are unknown.
In June 2006, the Service approved an HCP and issued an ITP for adverse effects from
development on Big Pine and No Name Keys. There are 4,298 acres (133) of marsh rabbit
habitat on Big Pine and No Name Keys, 3,626 acres (134) of which are protected. The HCP
includes specific development restrictions in Lower Keys marsh rabbit habitat and within a
1,640-foot (500 meter) buffer surrounding this habitat. The distance of 1,640-feet is based on the
use of upland areas by this species and the estimated distance domestic cats will travel from their
homes (Frank, personal communication, 1996). The ITP does not authorize incidental take of
suitable marsh rabbit habitat, but does authorize incidental take of up to 40 acres of buffer lands
surrounding suitable marsh rabbit habitat. The HCP also requires the compensation for these
losses at a 3 to 1 ratio (Service 2006). Based on the remaining 5 ROGO allotments allowed by
the HCP for Big Pine and No Name Key, an additional 2.6 acres (B 12) of at -risk lands may be
developed, of which 0.8 acre (1313) are not subject to NFIP. The remaining acres (1.8 acres)
(B 16) are subj ect to NFIP. Since at -risk marsh rabbit habitat was not exempted in the Big Pine
and No Name HCP, the direct and cumulative effects of NFIP actions on at -risk marsh rabbit are
addressed in this BO. The Service's HCP did address indirect effects (cat predation) and
determined that this level of incidental take would not jeopardize the survival and recovery of the
Lower Keys marsh rabbit.
102
&haws .siralloirtail butterfly
The Schaus swallowtail butterfly is restricted to habitat where its primary food plant, torchwood,
grows abundantly (Service 1982c). This habitat is limited to coastal southeast Florida and the
Upper Keys, in mature tropical hardwood hammocks. Within the Florida Keys, the current
occupied range of this species is restricted to North Key Largo, although potential suitable
habitat based on historical records, extends south to Upper Matecumbe Key. A 1984 survey
from Elliott Key to Key West found no Schaus swallowtail butterflies south of North Key Largo
(Emmel 1985a), although a verified sighting occurred on Upper Matecumbe Key in 1986
(Emmel 1986a).
The Schaus swallowtail butterfly is now believed restricted to hardwood hammocks on North
Key Largo. The amount of suitable habitat undoubtedly fluctuates depending on hurricanes,
wildfires, and subsequent vegetation succession, but the primary upland habitat is hardwood
hammocks. Contiguous tracts of hammock remain on South Key Largo and portions of Upper
Matecumbe Key, but no longer appear to support the Schaus swallowtail butterfly (Salvato,
personal communication, 2006). However, the Service considers these habitats potentially
suitable for this species. The reasons these lands no longer support the species are not known,
but mosquito spraying is suspected (Salvato, personal communication, 2006).
The majority of high quality hammock habitat available on North Key Largo has been protected
through acquisition and is being managed for conservation by the Service and State of Florida.
Because of these efforts and current land use regulations in place by Monroe County, the threat
of habitat loss from development on North Key Largo is low. The Service believes the status of
the Schaus butterfly is stable (Service 2008c). In 2006, the population may have increased in the
islands of Key Biscayne National Park; in addition, a single Schaus swallowtail butterfly was
observed at the Deering Estate on the mainland for the first time in many years (Salvato,
personal communication, 2006).
Within the North Key Largo range, potential suitable Schaus swallowtail butterfly habitat is
about 2,486 acres (Table EA-12) (E B3:I3), of which 2,240 acres (90 percent) (E B4:I4) are in
public ownership. Lands at -risk in this area comprise about 247 acres (E B5:I5) and include 411
parcels (E B7:I7). In 1986, the Service issued an ITP to Nichols -Hendrix, and in 1990 to Ocean
Reef Club for adverse effects from the loss of 35 acres of potential suitable Schaus swallowtail
butterfly habitat associated with proposed developments. The Service determined that the
impacts associated with the issued HCPs would not jeopardize the survival and recovery of the
Schaus swallowtail butterfly. These properties are not represented in our analysis of lands at risk
and are considered part of the baseline. For our assessment of the effects of the proposed action
on the Schaus swallowtail butterfly, the Service considers the lands in North Key Largo subject
to this BO to total 217 acres (E D54:I5) of at -risk lands consisting of 336 parcels(E 137:I7).
As discussed previously, the Service also considers hammocks on South Key Largo, Upper and
Lower Matecumbe Key, and Lignumvitae Key that no longer appear to support the endangered
Schaus swallowtail butterfly as potential suitable habitat. These lands represent 2,316 acres (46
percent) (E J3:P3) of additional Schaus swallowtail butterfly potential suitable habitat, of which
1,000 acres (E J4:P4) are in protected status. The total number of acres of Schaus swallowtail
103
butterfly potential suitable habitat at -risk is about 1,733 acres (E D5:P5). Figure 9 shows the
focus area map for the Schaus swallowtail butterfly.
We discussed previously the open space requirements of Monroe County, the Village of
Islamorada, the City of Marathon, and the City of Key West. Clearing is limited to 10 to 30
percent in high quality habitat and 50 to 60 percent in moderate to low quality habitat.
Additional regulations require preservation or restoration of habitat to offset vegetation losses
that result from development. Nevertheless, some fragmentation of habitat will likely occur.
,Wver rice rat
The silver rice rat occurs on 11 islands in the Lower Keys, and is restricted to a narrow range of
wetland habitat types. Populations are widely distributed and they occur at extremely low
densities. The silver rice rat also requires a large home range. Silver rice rats require expanses
of high -quality salt marsh habitat. They are extremely limited in habitat occupancy, occurring in
salt marsh and transitional buttonwood habitats.
Threats to the silver rice rat include the alteration of wetland habitats from constriction activities
for residential and commercial developments, predation from feral cats, and niche overlap
competition from black rats. Goodyear's (1992) data suggest that black rats may out -compete
silver rice rats for food and habitat resources; in areas of potential suitable habitat, the occurrence
of black rats may preclude the survival of silver rice rats. Black rats may also prey upon
newborn silver rice rats (Forys, personal communication, 1995). Pesticides that are used to
control black rats also threaten the silver rice rat (Service 1993b).
For the silver rice rat, we relied on potential suitable habitat maps generated from Monroe
County's 2009 habitat maps (Monroe County 2009). Potential suitable habitat for the silver rice
rat is about 21,748 acres (Table EA-13)(J3) of which 14,256 acres (65.6 percent)(J4) are in
public ownership. Lands at -risk in the range of the silver rice rat are about 7,492 acres (J5),
representing 3,985 parcels (J7). However, a portion of these lands are within a CBRA zone and
FEMA backed flood insurance is not available. Potential impacts in CBRA areas are considered
in the Cumulative Effects section of this BO. Figure 10 shows the focus area potential suitable
habitat map for the silver rice rat.
Critical habitat for the silver rice rat includes areas containing mangrove swamps, salt marsh
flats, and buttonwood transition vegetation. The major constituent elements of this critical
habitat that require special management considerations or protection are:
(1) mangrove swamps containing red mangrove, black mangrove, white mangrove,
and buttonwood;
(2) salt marshes, swales, and adjacent transitional wetlands containing saltwort,
perennial glasswort saltgrass, sea ox-eye), Key grass and
(3) coastal dropseed and freshwater marshes containing cattails sawgrass and
cordgrass.
104
Critical habitat for the silver rice rat includes Little Pine Key; Water Keys; Big Torch Key;
Middle Torch Key; Summerland Key north of U.S. Highway 1; Johnston Key; Raccoon Key;
and Lower Saddlebunch Keys south of U.S. Highway 1, but not including lands in Township
675, Range 27E, section 8 and the northern 1/5 of section 17. All lands and waters above mean
low tide are included in this designation (50 CFR 17.95).
Critical habitat only affects Federal agency actions and does not apply to private or local or State
government activities that are not subject to Federal authorization or funding. Federal agencies
that may be affected by the designation of silver rice rat critical habitat include the Service
(NKDR), Corps, FEMA, U.S. Navy, and the Federal Highway Administration. Seven of the nine
keys in critical habitat are within the NKDR boundaries. Although the NKDR is managed for
Key deer, the habitat requirements and biological needs of the two species do not conflict.
Based on GIS mapping of the constituent elements and the habitat types codified in
50 CFR17.95 (a), 8,532 acres (J3) encompass the critical habitat for this species (Table EA-15),
of which 6,750 acres (79 percent) (J4) are in government ownership and about 1,782 acres (21
percent) (J5) are in private ownership. As of 2010, GIS analysis shows about 315 acres of rice
rat critical habitat no longer contain constituent elements and about 1,782 acres (J5) are at risk.
Vocklsland tree snail
The Stock Island tree snail is an arboreal snail inhabiting hardwood hammocks of the Keys. Its
historic range includes the islands of Stock Island and Key West. Individuals of the species have
since been moved to other hammocks in the Keys and the mainland. Today, populations of
snails occur throughout the Keys in hardwood hammocks. The Service has records of 27
populations 25 in the Keys and 2 in mainland Miami -Dade County. Many of these populations
are believed to have been established by collectors.
Extant populations of the Stock Island tree snail are known in at least 27 locations, up from 4 in
1997 and 8 in 2003, and most are outside the historical range. As previously mentioned, snails
are continuously being moved by various collectors. Individual snails have been distributed to
some residents for placement in the Lower Keys and, perhaps on private lands in Key West.
Therefore, it is very difficult to track the current distribution.
Potential suitable habitat for the Stock Island tree snail is considered hardwood hammocks and
beach berms (Table EA-9) and is estimated at 9,207 acres (R3) of which 6,449 acres (70 percent)
(R4) are in public ownership. Lands at -risk in the range of the Stock Island tree snail are about
2,758 acres (R5), representing 5,607 parcels (R7). Figure 11 shows the focus area map for the
Stock Island tree snail.
Integration and Synthesis
On August 25, 1994, the U.S. District Court for the Southern District of Florida concluded that
FEMA's implementation of the National Flood Insurance Program constituted a Federal action
for the purposes of section 7 of the Act. The Court required FEMA to consult with the Service
105
on whether their action was likely to jeopardize the continued existence of the endangered Key
deer. On June 16, 1997, the Service issued a BO that concluded the continued administration of
the NFIP was likely to jeopardize the continued existence of Garber's spurge, Key deer, Key
Largo cotton mouse, Key Largo woodrat, Key tree -cactus, Lower Keys marsh rabbit, Schaus
swallowtail butterfly, silver rice rat, and Stock Island tree snail, and was not likely to jeopardize
the continued existence of the eastern indigo snake. The Service also concluded that critical
habitat for the silver rice rat was likely to be destroyed or adversely modified.
The 1997 BO provided a RPA that FEMA could undertake so that its action would not result in
jeopardy to the above listed species or result in adverse modification of silver rice rat's critical
habitat. The RPA required the development of species habitat maps, property maps, and
implementation of a project review process. The project review process allowed the Service the
opportunity to provide comments and recommendations directly to the property owner and to the
municipality (county or city) permitting development. Comments during the permit review
related to whether a project would affect listed species habitat, what actions could be taken to
avoid affecting listed species, and for actions that would adversely affect a listed species,
information about applying for an incidental take permit under Section 10 of the Act.
On April 18, 2003, the Service issued an amended BO for the effects of the NFIP on threatened
and endangered species in the Florida Keys. The 1997 BO was amended as a result of new
information gained from implementation of the RPA provided in the 1997 BO and because a
county -wide HCP was not completed within 4 years of the issuance of the 1997 BO. The new
information improved knowledge of the distribution of listed species and their habitats in the
Keys, improved understanding of the manner in which the NFIP may adversely impact listed
species, and included the addition of two municipal governments, the City of Marathon and the
Village of Islamorada, as participating communities in the NFIP. In addition, the American
crocodile had begun to reoccupy portions of the Upper and Lower Keys. Therefore, effects of
the action on the crocodile and its critical habitat were included in the amended opinion.
The amended BO concluded that full implementation of the NFIP in Monroe County would:
(1) result in jeopardy to the Key deer, Key Largo cotton mouse, Key Largo woodrat,
Key tree -cactus, Lower Keys marsh rabbit, Schaus swallowtail butterfly, silver
rice rat, and Stock Island tree snail;
(2) result in incidental take of habitat of the eastern indigo snake and American
crocodile;
(3) result in adverse modification of silver rice rat critical habitat;
(4) not result in jeopardy of the eastern indigo snake and American crocodile; and
(5) affect, but was not likely to adversely affect the Garber's spurge;
The Service also concluded the action would also result in loss of critical habitat of the American
crocodile, but would not result in adverse modification of American crocodile critical habitat.
106
The amended BO reaffirmed that the implementation of the 1997 RPAs by FEMA would avoid
jeopardy to the species listed in the opinion and would avoid adverse modification of critical
habitat for the silver rice rat.
The principle RPA that would avoid jeopardy and adverse modification of the species and
critical habitat listed in the 1997 BO and reaffirmed in the 2003 amendment was the review of
county and municipal building permits for their effects to listed species. To assist in
implementation of the RPA, the Service coordinated closely with FEMA, Monroe County, and
the affected municipalities beginning in December 1998. This coordination continued until it
was suspended because of the September 9, 2005, Court Order. A 1999 Service memorandum
previously lodged with the Court (DE 4 158 Exhibit 7) detailed the substance of the reviews
under the RPA to that date and the conservation recommendations rendered by the Service
during the course of these reviews. The Court later determined the 2003 amended BO to be
deficient in part because the document did not sufficiently analyze effect of the RPA from 1997
to 2003. This portion of the opinion, analyzes these effects, as well as the effects of the RPA
through September 2005.
Tables 10, 11, and 12 offer a summary of the informal consultations conducted with individual
property owners, the types of actions reviewed, whether a project would affect species habitat,
and whether the Service recommended modifications to the proposed project. During the review
period, the Service provided technical assistance reviews for 6,590 proposed permit actions.
Table 10: Summary of Fish and Wildlife Technical Assistance in Monroe County, Florida
1998 to 2005 by Site Condition
Year
Actions
Scarified
Exotics or
Disturbed
Developed
Native
Habitat
1998
530
2
38
412
84
1999
212
68
24
84
54
2000
990
10
40
878
86
2001
904
304
226
362
192
2002
742
232
132
216
212
2003
840
283
216
165
180
2004
1,256
420
418
366
234
2005
1 1,116
1 532
1 324
.)22
226
Totals
1 6,590
1 1,851
1 1,418
2,805
1,268
As shown in Table 10, 1,268 actions (19.2 percent) were in parcels that contained native habitat,
1,851 (28 percent) were in scarified habitats, and 1,418 (21.5 percent) were in sites that either
contained exotics or were disturbed. A significant portion (2,805 or 42.6 percent) of the reviews
involved an addition or modification of a developed property. Developed properties may contain
native habitat, exotic species, or completely barren areas.
107
Table 11: Summary of Fish and Wildlife Technical Assistance in Monroe County, Florida,
1998 to 2005 by Action Type
Year
Actions
New
Structure
Redevelopment
Addition
Accessory
Structures
1998
530
190
54
208
74
1999
212
94
22
48
52
2000
990
313
76
308
330
2001
904
528
78
260
106
2002
742
506
42
98
132
2003
840
571
43
82
159
2004
1 1,256
1 786
1 184
188
1 208
2005
1,116
760
198
194
112
Totals
6,590
3,748
697
11386
1,173
As shown in Table 11, our reviews were primarily for new strictures (3,748 or 57 percent).
Additions and accessory strictures accounted for 2,559 reviews (34 percent). Redevelopment
accounted for 697 reviews (10.5 percent). In the 9-year period, 3,748 new stricture proposals
were reviewed, averaging about 416 per year. This number seems high when considering that
only about 255 permits are issued each year in the entire Keys. However, the Service reviewed
properties before permit applications were filed and issued. Many of the proposals the Service
reviewed were not filed or permitted. Some owners obtained a technical assistance review in
case they wanted to sell their property in the future. In other cases, prospective buyers requested
technical assistance on properties they considered buying to determine if there might be
environmental problems. In some instances, new owners requested a technical assistance letter
in their name.
Table 12: Summary of Service Technical Assistance in Monroe County, Florida, 1998 to
2005 by Determination
Year
Actions
Risk t s
Species
No Risk
to
Species
Affects
Native
Habitat
Does Not
Affect Native
Habitat
Proposed
Conservation
Measures
Requested
an HCP
1998
530
2
528
50
290
31
14
1999
212
0
212
58
162
2
0
2000
990
28
962
75
906
20
12
2001
904
16
888
22
444
10
12
2002
742
44
698
80
224
64
22
2003
840
57
783
135
513
116
47
2004
1,256
72
1,184
207
1,008
142
36
2005
1,116
56
1,060
203
822
82
38
Totals
6,590
275
6,315
830
4,369
467
181
As shown in Table 12, we determined that 6,315 (95.8 percent) of the proposed actions that were
technically reviewed did not adversely affect a listed species. In addition, 4,369 (66 percent) of
the proposed actions did not affect native habitat. Of the proposals we reviewed that would
affect native habitat or otherwise affect listed species, we determined that 275 could have, as
designed, an adverse effect on a listed species. In these situations, we recommended changes in
108
the project design that could minimize or eliminate an adverse effect, as well as measures that
could benefit a species. Depending on the site -specific conditions, the types of measures that
might be recommended included: reduce or re -site the stricture; place a conservation easement
on the undisturbed habitat; conduct a survey to determine possible presence of listed species;
transplant native vegetation or specific preferred plant species; contribute to a restoration fund;
or replace lost habitat.
For the purposes of this BO, the Service carefully reviewed determinations and
recommendations for FEMA-related projects in fiscal year (FY) 2004 (October 1 through
September 30), the first full fiscal year after the 2003 RPA was implemented. The purpose of
this review was to qualify and quantify the types of projects that were referred for technical
assistance and the specific types of advice rendered or actions taken by the Service in response.
A summary of our findings is presented below in Table 13.
Table 13: Summary of Service Technical Assistance Actions in Monroe County, Florida,
FY 2004
Number of
Number of
Number of
determinations: Not
determinations:
recommendations:
Project type
likelv to increase
Habitat Conservation
Conservation
adverse risk
Plan (HCP)
measures
requested
Single-family
residence
146
49
112
Swimming pool
104
0
0
Replacement/
redevelopment
70
0
0
Renovation/shed/
commercial/
59
0
1
miscellaneous
Addition/patio/deck
57
0
0
Fence/wall
27
3
0
Garage/carport
7
0
0
Total
470
52
113
In some cases, projects were combined in a single request, for example, a new residence and a
fence. Some projects were reviewed, then subsequently canceled by the applicant, and are not
included in Table 13. Conservation measures ranged from utilization of standard eastern indigo
snake mitigation measures to a Deed of Conservation Easement on the remaining undisturbed
parts of the property. Conservation measures imposed by Monroe County or the municipalities
were also sometimes referenced.
For FY2004, the Service reviewed 522 proposals in Monroe County that were submitted to the
South Florida Ecological Services office in Vero Beach for Technical Assistance. These projects
had the potential to affect about 85 acres of property, most of which was scarified and cleared.
Proposed projects on about 13 acres, representing 102 technical assistance applications, were
initially considered to be in tropical hardwood hammock that could support federally listed
109
species. Eighty-nine of the 102 applications were for review of proposed single-family
residences and represented about 11 acres. Upon in-depth review, the Service determined that
many of the projects did not affect potential suitable habitat.
Ultimately, after a review of the habitats described above, the Service estimated a total impact of
about 1.2 to 1.5 acres of suitable habitat could occur and recommended that Habitat
Conservation Plans (HCP) be completed and/or conservation measures be implemented to avoid
and minimize the impact. Twenty-one of 49 requests for new residential development that
received an HCP recommendation involved Key deer and were located on Big Pine and No
Name Keys. In most cases, anticipated impacts on Big Pine and No Name Keys related to
increases in deer -vehicular collisions rather than habitat loss. Three requests that received HCP
recommendations were for fences on Big Pine and No Name that did not meet the codified deer -
friendly fencing guidelines developed by the Service and Monroe County. The Big Pine/No
Name HCP now covers those projects on Big Pine Key and No Name Key. The remaining HCP
recommendations were made due to our concerns of the projects' effects to the Stock Island tree
snail, the eastern indigo snake, and the Schaus swallowtail butterfly.
We also randomly selected 1 month in 2004 to evaluate FEMA technical assistance requests and
outcomes in detail. Twenty-six technical assistance requests were evaluated. Sixteen requests
occurred on parcels that were identified in the Service's records as potentially containing suitable
habitat (Table 14). Nine of those were determined to have impacts on suitable habitat and
mitigation measures were recommended. After a review of aerial photos, maps, and other
information, the other seven requests were determined to have no suitable habitat and therefore
no mitigation measures were recommended. The ten remaining proposed projects were not
located in habitat identified as suitable.
Our review also included an analysis of our recommended mitigation measures for nine of the
proposed projects randomly selected for the 1 month period in 2004. Six projects involved Key
deer on Big Pine Key and three projects were determined to have footprints possibly occurring in
suitable habitat for other federally threatened or endangered species. One proposed single-
family residence project with a footprint of 0.10 acre was determined to occur in isolated habitat
marginally suitable for the eastern indigo snake. The Service recommended eastern indigo snake
protection measures in the event the species was encountered during constriction. Two other
projects were proposed partially in habitat identified as potential tree cactus suitable habitat. The
Service recommended a vegetation survey to identify plants, removal of exotic vegetation, and
transplantation of native plants. Five requests were for fences in Key deer habitat on Big Pine
Key. The Service worked closely with Monroe County to develop deer -friendly fencing
guidelines on Big Pine and No Name keys and recommended adherence to them as a mitigation
measure.
110
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Habitat Conservation Plans
For the purposes of this BO, we evaluated our recommendations for landowners to implement
HCPs in Monroe County in 2004. We selected the first 10 determinations in which we
recommended HCPs directly, or as an alternative. The results are provided in Table 15 below.
The 10 projects we reviewed cover 9.51 acres of proposed development, possibly affecting 1.12
acres of potentially suitable habitat. Four applicants agreed to Service recommended project -
specific mitigation to minimize the risk of adversely affecting listed species; therefore, no HCP
was necessary. These projects as originally proposed would have resulted in the removal of 0.62
acre of suitable habitat. Two applicants applied for a building permit and received a building
permit number, but were not issued a building permit because of environmental issues identified
by the Service. The remaining four applicants had taken no further action. Because of local
building regulations and competition for permits, these properties would only qualify for a
building permit through resolution of environmental issues and additional compensation or a
beneficial use determination several years later.
A review of the Monroe County permit database indicates the county is reliably incorporating the
Service's recommendations as stipulations in permits. This supports FEMA's assessment
derived from records reviews during community service visits.
Summary of Technical Assistance Review Process, 1997 to 2005
The Service believes that the RPA helped avoid jeopardy for three reasons:
(1) as described in the status of the species section many of the species are stable or
improving today, including the Key deer, silver rice rat, Schaus swallowtail
butterfly, and Key Largo cotton mouse. The status of the Stock Island tree snail
and Key tree -cactus are uncertain.
(2) the coordination between the Service and local governments helped monitor
species trends. For example, coordination helped identify many new Stock Island
tree snail populations.
(3) the RPA served as a safeguard against any project that could have caused
significant problems for the species.
If the RPA was not in place and a proposed project had no other Federal nexus, the Service may
not have known about the project and had the chance to engage the applicant in the Section 10
review process. During the period the RPA was in place, the Service requested HCPs on all
projects with impacts in suitable habitat. In the future, a similar review process would continue
to provide a safeguard against negative impacts, which would be most important for the species
that have appeared to be in a declining condition in recent years, including the eastern indigo
snake, Key Largo woodrat, and Lower Keys marsh rabbit.
113
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After reviewing the effectiveness of the technical assistance review process previously in place,
the Service believes that, viewed cumulatively and individually, the impacts from projects were
not significant on species or their habitats. Many of the properties reviewed did not have much,
if any, habitat that was suitable for threatened and endangered species. Most of the properties
were mistakenly included in the consultation maps because of the mapping tools used at the time.
Improvements in mapping technology have helped reduce this error in our latest focus maps,
although verification and collection of updated information will continue to be important.
During our project reviews, when we believed a proposal would adversely affect listed species,
we recommended that an applicant seek an ITP under Section 10 or identify a Federal nexus
(e.g., Corps wetland permit) in accordance with section 7. We recommended development of an
HCP for 181 projects (2.7 percent of projects reviewed) where we believed adverse effects to a
listed species or critical habitat could not be avoided.
Forty-nine of our requests for an applicant to pursue an HCP were related to proposed
constriction on Big Pine and No Name Keys where the HCP for Big Pine and No Name Keys
was in effect. Of the remaining 132 HCPs requested, no HCP was submitted. In a number of
cases, the Service worked with the applicant to reduce habitat loss and to protect on -site habitat
values, thus reducing impacts to a point that project effects were insignificant or discountable.
The Service also recognizes, however, that the 1996 and 2003 RPAs could have been designed to
address cumulative and indirect effects more clearly. As previously designed, the Service
provided technical assistance to individual landowners who, at some point, may seek and obtain
a permit to develop. The 1996 and 2003 RPA did not allow for a review of permits collectively,
however, the 2006 RPA did. This approach allowed the Service to review the proposed actions
together allowing all the impacts — direct, indirect, interrelated and interdependent, and
cumulative — to be considered at the same time. The revised RPA in this BO also addresses this
point by designing a review process that will allow the Service to consider the cumulative
impacts of a series of permit proposals at specific points in time. In addition, the new RPA
addresses a key indirect effect — free -roaming cats — more clearly.
Oversight and Compliance: To help oversee the 1996 RPA, the Service stationed an employee in
the Keys. The employee received assistance from other Service staff, and worked
collaboratively with FEMA, Monroe County, and the municipalities. The Service employee
handled a variety of duties, including technical assistance requests, site visits, compliance
checks, coordination with other officials, and office duties, on a daily basis. In August 2003, the
position was relocated to the South Florida Ecological Services Office in Vero Beach. The
duties for this position remained the same. Compliance visits and technical assistance site visits
continued to be made over 4 or 5 days each month over the period of time the RPA was in effect.
Service staff accompanied FEMA staff in their review of Monroe County and municipality
compliance with the 2003 RPA. The stipulations and conditions imposed by the local
government in permits were examined to determine whether they complied with technical
assistance letters in which the Service recommend conservation measures (Table 16). The
results (31 inspections) note compliance with RPA in 28 of 31 inspections. Two non-compliance
were noted for the City of Marathon and one for unincorporated Monroe County. Corrective
actions were implemented.
116
Over the last several years, a building moratorium related to level of service concerns on U.S. -
on Big Pine Key, resulted in 21 building permit applications on Big Pine Key being held in
abeyance by Monroe County. Some applicants brought lawsuits against the county because of
the moratorium. The Special Master assigned by the Court determined the impacts from
applicants' building would have a de minimus effect on requirements proposed by Monroe
County. Consequently, several property owners were issued a Beneficial Use determination
meaning Monroe County could issue building permits for them to develop their property.
On June 11, 2004, Judge Mark Jones of the 161h Judicial Circuit Court for Monroe County
approved a settlement agreement between Monroe County and four property owners whose
building permit applications had been held by Monroe County (Appendix 3). As the result of a
settlement agreement, Monroe County agreed to issue the permits. Neither FEMA nor the
Service were a party to this proceeding or had knowledge of it at the time. In addition to these
permits issued through the Court -led settlement agreement, the Service now understands that
most if not all of the other 21 permits have now been issued. Eleven of the applicants did not
apply to the Service for technical assistance and, therefore, did not have their property evaluated
by the Service as potential habitat for listed species.
In accordance with the Big Pine and No Name Key HCP, the county is now tracking the impacts
of all development, including the 21 building permits (impacting 4.7 acres) that were issued.
Since issuance of the HCP, five additional permits have been issued.
Aside from the 21 permits noted above, after regular coordination and review, the Service and
FEMA have found that the technical assistance process has been effective. Table 16 includes a
record of RPA coordination by FEMA, the Service, and Monroe County.
Table 16: RPA Implementation Coordination Record
Date
Action
Outcome
1998-1999
Semi-annual meetings with Service
Compliance with RPA
and Monroe Countv
2000
Exceeded semi-annual consultation
Compliance with RPA
March 29, 2000
Meeting with Service and FEMA
Compliance with RPA
Discoveiy of two possible violations,
March 29, 2000
Review of permits and RPA process,
upon notice of discover-, county
Monroe County
issued stop work on both projects and
required HCPs
Review of permits and RPA process,
No compliance problems discovered,
March 30, 2000
Islamorada
Village appeared to be complying
with RPA
March 31, 2000
Review of County permits faxed
Compliance with RPA
2001
Exceeded semi-annual consultation
Compliance with RPA
August 6, 2001
Meeting with Service and FEMA
Compliance with RPA
Village and Service agreed to
Review of permits and RPA process,
coordinate follow-up on permitted
August 6, 2001
Islamorada
actions, publish outreach materials,
clarification on development
definition
117
Date
Action
Outcome
Review of permits and RPA process,
County found to be implementing
August 7, 2001
Monroe County
RPA, County Agreed to publish more
outreach materials
August 7, 2001
Review of permits and RPA process,
City appeared to be implementing
Marathon
RPA
August 9, 2001
Meeting
Compliance Nvith RPA
2002
Exceeded semi-annual consultation
Compliance Nvith RPA
September 16-19, 2002
Meeting Nvith Service and FEMA
Compliance Nvith RPA
August 16, 2002
Review of permits and RPA process,
Village appeared to be implementing
Islamorada
RPA
August 17, 2002
Review of permits and RPA process,
County appeared to be implementing
Monroe Countv
RPA
August 17, 2002
Review of permits and RPA process,
City appeared to be implementing
Marathon
RPA
Agreed that Service Nvould send
October 16, 2002
Meeting Nvith Service and FEMA
copies of all correspondence to NFIP
communities regarding RPA
2003
Exceeded semi-annual consultation
Compliance Nvith RPA
June 30, 2003
Coordination regarding permits
Service determined these would be
issued by county on Big Pine Key
covered by proposed HCP
September 25, 2003
Review of county permits and RPA
County in compliance with RPA
process
September 25, 2003
Review of City of Marathon permits
City Nvas unable to provide copies of
and RPA process
all permits
September 26, 2003
Review of Village of Islamorada
Village appeared to be complying
permits and RPA process
with RPA
December 1, 2003
Letter to county
Request for copy of permits each 6
months
Letter to Marathon
Request for proof of stop work at
December 3 2003
notifi-ing revision of ordinance
Grassy hey Subdivision copies of
needed and request for copies of
permits provided ever- 3 months until
permits ever- 3 months
injunction September 2005
November 19, 2003
Letter to Village of Islamorada
Village appeared to be complying
with RPA
2004
Exceeded semi-annual consultation
with Service
Visit to Marathon, meeting with
Clarification of RPA, Federal and
January 12 2004
FEMA, city, FDCA, Service, Corps,
State permits needed, compliance
regarding proper permitting at
Nvith 44 CFR 60.3(a)(2)
Grassv Iev SD, review of permits
Januaiv 12-13, 2004
Review of permits Monroe
County in compliance with RPA
January 12-13, 2004
Review of Marathon
City appeared to be complying with
permits
RPA
January 12-13, 2004
Review of Islamorada
Village appeared to be complying
permits
with RPA
Letter to Marathon with notice to
Stop work order, fines, restoration of
Februaiy 4, 2004
comply or jeopardize participation in
Grassv Iev SD
NFIP
2005
Exceeded semi-annual consultation
Compliance with RPA
118
Date
Action
Outcome
November 1, 2005
Meeting -,-,-ith Service and FEMA
Compliance vdth RPA
November 1, 2005
Reviev,- of permits Monroe County
County appeared to be complying
vdth RPA
November 2, 2005
Reviev,- of permits
City appeared to be complying N-6th
Marathon
RPA
November 2, 2005
Reviev,- of permits Islamorada
Village appeared to be complying
permits
N-6th RPA
EFFECTS OF THE ACTION
Factors to be considered
In this BO, we determine whether continued implementation of the NFIP in the Florida Keys is
likely to adversely affect listed species, and, if so, to what extent. In general, for direct effects,
we make this determination by estimating probable changes in the quantity, distribution, and
quality of potential suitable habitat for threatened and endangered species in the Florida Keys
resulting from development. We also consider indirect effects, such as traffic volumes and cat
predation, in our evaluation. For cumulative effects, i.e., those actions not subject to NFIP, we
incorporated the same approach and considered the same parameters.
Methods
Suitable habitat for listed species in the Keys includes all habitat classes referenced in Monroe
County's 2009 habitat maps used by federally listed threatened and endangered species. These
lands include protected areas (e.g., NWRs, Pennekamp State Park, etc.) as well as areas where
the NFIP is generally not applicable (e.g., CBRA lands and state and Federal lands). We further
categorized the suitable habitat to allow for accurate assessment of direct and cumulative impacts
from the NFIP. Baseline data and calculations for the effects analyses are in spreadsheets that
are included as tables in this document (Tables EA -I through EA-18) (Appendix 4).
Standard parameters applied to all of the calculations are shown in Table EA-1. We subtracted
those lands that are not at risk of development from our overall acreage of suitable habitat (row
3) to determine which parcels are at risk of development. This "lands in conservation" acreage,
as shown in the analysis tables (row 4), was generated using GIS layers provided by the Monroe
County Land Authority that identified parcels as Public Conservation Lands and NGO
Conservation Lands. The difference (row 5) is the potential suitable habitat susceptible to
development.
In order to determine the direct effects from the NFIP, we used GIS parcel data for land
ownership and the CBRA flood maps to identify acres of suitable habitat that are susceptible to
development, but would not be eligible for flood insurance under the NFIP. Parcels not eligible
for NFIP flood insurance include all lands falling in the boundaries of the CBRA zones, lands
owned by the Federal government and lands owned by the State of Florida.
Although there are privately -owned parcels in CBRA zones, and any new or substantially
improved building in a CBRA zone must meet the minimum requirements of the NFIP, FEMA
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does not issue flood insurance for properties that fall within the boundaries of the CBRA zones.
In addition, neither the Federal government nor the State of Florida is required to obtain FEMA
flood insurance on strictures as both entities are self -insured. In our analysis, at -risk lands in
CBRA zones are included in row 6 of the analysis tables (Tables EA 3,4,7,9,10,12,13, and 15
(Appendix 4)). We consider potential development on these lands (row 13) in our evaluation of
cumulative effects.
In some areas, additional habitat may be subject to development associated with the new
residences. As discussed previously, about 85 percent of this additional development is likely to
occur in at -risk lands in areas where NFIP insurance is available, with the remaining 15 percent
occurring in areas where NFIP insurance is not available. However, we are considering all of
these lands (row 15) as indirect effects and part of FEMA's proposed action. We reduced the
maximum impacted acres (row 12) by the relative percentage of at -risk lands in areas where
NFIP insurance is not available (row 13) to determine the direct effects anticipated to occur in
suitable habitat due to the NFIP (row 16). We consider this the direct effects of the action based
on activities that are likely to occur in areas where flood insurance is available.
Throughout the remainder of the BO, when we refer to at -risk lands due to the NFIP and non-
NFIP, we are referring to at -risk lands in areas that are eligible for flood insurance under the
NFIP and at -risk lands in areas that are not eligible for flood insurance (non-NFIP).
Human population and development in the Kevs
As shown in Table 6, the population of Monroe County increased by 23.5 percent between 1980
and 1990. It continued to increase in the early 1990's. Based on those trends, in 1997 we
projected the population of Monroe County would increase by about 139 percent by 2020. By
2000, however, the population actually decreased to 79,589. This decreasing trend continued
through 2008, with the population currently 7.4 percent less than that in 1990. The prediction in
Monroe County's Comprehensive Plan that Monroe County population will be 112,300 by 2010
now seems unlikely, as the current population is now below the 1990 level. Although the
population has declined in the last years, we assume the population will increase commensurate
with a corresponding increase in housing. ROGO allocation in the Florida Keys is 372 ROGO
units per year. The current ROGO program allocates 372 new units per year in the Keys; in the
13-year period from 2010 through 2023, 4,836 new ROGO units are possible. Based on an
average of 2.3 persons per household in Monroe County (U.S. Census Bureau 2000), the
population would increase by 11,123 persons (15.4 percent) by the year 2023 as the result of new
development.
Currently, there are about 20,644 acres of vacant land in Monroe County, which represents about
32 percent of the total acreage of the county. These 20,644 acres do not include 11,104 vacant,
buildable lots already zoned and platted for residential uses, nor does this acreage include
conservation and recreational lands ("protected" lands), such as State parks.
Although there are 11,104 vacant, developable, residential lots in Monroe County, this number
does not reflect the residential constriction potential. The actual potential for new constriction
is lower due to growth management regulations in the county and municipalities. Monroe
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County developed a land use map that determines future land uses and residential and
commercial constriction limits based on carrying capacity as a function of hurricane evacuation
times. Future land -use predictions may be less than what would occur based on a carrying
capacity analysis because of the building permit system. Actual growth patterns are determined
through the Permit Allocation System (i.e., ROGO), issuance of building permits, and open
space requirements by the county and municipalities (Monroe County 1996).
For assessment purposes, we are evaluating a 13-year period from 2010 through 2023. This
represents 4,836 ROGO units throughout the entire county (372 ROGO units per year). We
consider these ROGO units in our analyses to project future development and estimate the
acreage of impacts associated with residential development. The ROGO allocation in Monroe
County is divided into six communities for future planning purposes as follows: unincorporated
Monroe County (197 units), the Village of Islamorada (28 units), the City of Layton (3 units), the
City of Marathon (30 units), the City of Key Colony Beach (22 units), and the City of Key West
(92 units). FEMA independently evaluates each of the six communities for participation in the
NFIP. Details on each community are below and in Table EA-2a.
Unincorporated Monroe County: Monroe County provides 197 ROGO allocations for dwelling
units per year. At least 20 percent of these must be used for affordable housing with the
remaining (157 ROGO units) proportioned equally among the upper, middle, and lower keys,
which is about 52 ROGO units per region. Annual ROGO allotments for affordable housing can
be allocated in any of the three regions. However, for our assessment we are considering equal
allotments of the affordable housing units per region, which provides on average, 66 ROGO
allotments per region. In addition, 239 square feet of commercial development will be permitted
for every one dwelling unit permitted. A total of 612,079 square feet (14.1 acres) of commercial
constriction could be permitted through 2023 or a total of 1.08 acres per year.
There are 63,411 acres of suitable habitat for listed species in unincorporated Monroe County, of
these, 40,976 acres are protected conservation lands and 15,571 acres fall outside the purview of
the NFIP. The 22,435 acres of habitat at risk are divides amongst 14,521 parcels.
Village of Islamorada: The Village of Islamorada has 28 ROGO allocations for dwelling units
per year. Based on allotted ROGO units, an additional 2 acres of commercial development could
be permitted. There are 2,077 acres of habitat suitable for listed species in the Village of
Islamorada; of these, 671 acres are protected conservation lands and 1,350 acres fall outside of
the purview of the NFIP. The 1,405 acres of habitat at risk are divided amongst 1,433 parcels.
City of Marathon: The City of Marathon has 30 ROGO allocations for dwelling units per year.
Based on allotted ROGO units, an additional 2.1 acres of commercial development could be
permitted. There are 2,871 acres of habitat suitable for listed species in the City of Marathon; of
these, 961 acres are protected conservation lands and 1,074 acres fall outside of the purview of
the NFIP. The 1,910 acres of habitat at risk are divided amongst 1,718 parcels.
City of Key Colony Beach: The City of Key Colony Beach has 22 ROGO allocations for
dwelling units per year. Based on allotted ROGO units, an additional 1.6 acres of commercial
development could be permitted. There are 20 acres of habitat suitable for listed species in the
121
City of Key Colony Beach, none of which are protected and all of which fall outside of the
purview of the NFIP.
City of Key West: The City of Key West has 92 ROGO allocations for dwelling units per year.
Based on allotted ROGO units, an additional 6.6 acres of commercial development could be
permitted. There are 869 acres of habitat suitable for listed species in the City of Key West; of
these, 165 acres are protected conservation lands and 376 acres fall outside of the purview of the
NFIP. The 703 acres of habitat at risk are divided amongst 434 parcels.
City of Layton: The City of Layton has 3 ROGO allocations per year for dwelling units. Based
on allotted ROGO units, an additional 0.2 acre of commercial development could be permitted.
Less than an acre of habitat (0.1 acre) for listed species falls in the boundaries of the City of
Layton. These lands also fall within the boundaries of the NFIP.
Analysis for effects of the action
Beneficial Effects: Beneficial effects are contemporaneous positive effects without any adverse
effects to the species. The Service did not identify any beneficial effects that might result from
the action.
Direct Effects: Direct effects are those that are the immediate effects of the project on the
species or its habitat. Direct effects result from the agency action. Future Federal actions that
are not a direct effect of the action under consideration are not included in the environmental
baseline or treated as indirect effects. We do not consider effects from these future Federal
actions in this BO because they will require consultation at the time of the action. The only
direct effect identified from the proposed action is the issuance of flood insurance that facilitates
development. Property owners purchase flood insurance because lending institutions require it
for a government -backed loan or because they are concerned about their flood risk.
Interrelated and Interdependent Action: An interrelated action is an activity that is part of the
proposed action and depends on the proposed action for its justification. An interdependent
activity is an activity that has no utility apart from the action under consultation. The Service
does not believe that FEMA's proposed NFIP action has any interrelated or independent
activities.
Indirect Effects: Indirect effects are those that are caused by or will result from the proposed
action, and are later in time, but still reasonably certain to occur. Indirect effects may occur
outside of the area directly affected by the action. The indirect effects of the proposed action
include, but are not limited to, loss of habitat, habitat fragmentation, increased traffic that could
cause an increase in vehicular mortality, and increased outdoor cat populations that prey on listed
species.
We have independently evaluated each species under consideration as to population, habitat loss,
habitat fragmentation, indirect mortality (such as vehicular mortality), domestic pet predation,
chemical hazards, etc. The details of our analyses are in the individual species sections that
follow.
122
In the analyses that follows for each species, we evaluate loss of habitat on a "worst case
scenario" basis. We assume that all ROGO units will result in new development; however, we
are aware that some units will be used to redevelop properties that are already developed. Also,
we assume that if a property is developed, all suitable habitat present on that unit will be lost. In
Monroe County, the Village of Islamorada, the City of Marathon, and the City of Key West,
clearing is limited to 10 to 30 percent in high quality habitat and 50 to 70 percent in moderate to
low quality habitat. Therefore, a maximum of 70 percent of our affected habitat assessment can
actually occur. Generally, only 10 percent of likely occupied (high and moderate quality) habitat
(Tier 1) can be cleared in Monroe County and a maximum of 30 percent of likely occupied
habitat can be cleared in the municipalities. Additional regulations require preservation,
restoration, or compensation to offset vegetation losses that result from development. The
Service is unable to evaluate the true effects of these beneficial actions, but acknowledges that
the benefits are tangible mitigating measures. In essence, the existing programs administered by
the county and municipalities are already helping to avoid and minimize negative impacts to
potential suitable habitat.
We created spreadsheets for each of the species below to calculate the amount of estimated
impacts from the NFIP, as well as the cumulative impacts. Tables EA 3,4,7,9,10,12,13, and 15
(Appendix 4) show the formulas in each of the row headings. Slight rounding errors may occur
within the tables, but these are so small they have no significant effect on our final effect
conclusions. The calculations account for the average size of a parcel containing habitat (row 8),
the number of ROGO allocations over the life of the review (row 10), and the impact acres in
areas not subject to the NFIP (row 13). We consider the acres of NFIP impacts to be the direct
effects (row 16) and the acres of impacts on non -Federal lands outside NFIP (row 13) to be
cumulative effects. We considerer additional development associated with public use
improvements (row 15), although only 85 percent is NFIP, to also be an indirect effect of
FEMA's NFIP action.
Our analysis identified a number of suitable habitat acres that fall outside of Tier parcel
boundaries, which we called "other" lands. At -risk lands in the "other" lands category include
those lands outside Monroe County's mapped parcel boundaries not subject to the ROGO
program and a composite of state- and federally -owned lands. Development on these lands is
unlikely and would probably consist of recreational use areas (i.e., trailheads, canoe launches,
etc.). Since recreational development in Monroe County is typically 1.38 percent of the total
lands, we estimated that 1.38 percent of the "other" lands may be developed. Development on
these lands is considered in our cumulative effects analysis.
Eastern indigo snake
Potential suitable habitat is present throughout all of the Keys. Since the Keys are on the
extreme southern end of this snake's range and do not contain optimum habitat, the eastern
indigo snake population in the Keys is very small. Observations are rare, and scattered. In the
last several years, they have included four reported, but unsubstantiated observations of this
snake in Monroe County, two undocumented sightings on Grassy Key (City of Marathon), and
two unverified reported sightings in the Village of Islamorada (Sheahan, personal
123
communication, 2006; McNeese 2006). The most recent observation of an eastern indigo snake
occurred on Little Knockemdown Key in 2009. A photo verification of the individual was
provided to the NKDR via email in 2010 (Service 2010).
Direct effects - Habitat loss
Potential suitable eastern indigo snake habitat includes all habitat types in the action area, as
described in the status of the species above. We determined there are 65,552 acres (R3) of
potential eastern indigo snake habitat in Monroe County (Table EA-3). Of these, 42,012 acres
(64.1 percent) (R4) are located on conservation lands not subject to development. Our GIS
analysis shows that 14,413 parcels (R7) containing 23,541 acres (R5) of suitable habitat are at
risk from development. Table EA-3 provides a detailed breakdown of the acreages of eastern
indigo snake habitat within the five Keys jurisdictions where it may be present.
The majority of indigo snake habitat in the Keys is in unincorporated Monroe County (51,136
acres) (E B3:K3), of which 6,074 acres (B3) fall inside the boundaries of the Big Pine and No
Name HCP (Service 2006). The HCP allows for the development of a maximum of 200 lots on
Big Pine Key in the next 20 years and provides incidental take for 168 acres of indigo snake
habitat on Big Pine and No Name Keys. The HCP requires mitigation of habitat lost due to
development at a 3:1 ratio. In addition, the County continues to conserve habitat on Big Pine
Key from lots that have been dedicated to the county through the ROGO process. Because the
HCP has already addressed impacts and exempted take within its boundaries, this BO addresses
impacts on potential suitable habitat outside of Big Pine and No Name Keys. The HCP allowed
for 10 Tier 1 and 190 Tier 2 and Tier 3 ROGO units through 2023. The County has issued 5 Tier
1 permits, which leaves 5 remaining for the life of the HCP. These 5 Tier 1 ROGO units in the
HCP count towards the overall Tier 1 ROGO units in unincorporated Monroe County for the life
of the permit. As such, we factored them out of the available Tier 1 ROGO units because the
HCP is not included in our analysis (Row 10, B 10 and G 10). We also excluded from our
analysis the at -risk lands associated with the Nichols -Hendrix and Ocean Reef HCPs, because
the HCPs already addressed impacts and exempted take for the indigo snake.
Unincorporated Monroe County
There are about 51,136 acres (E B3:K3) of indigo snake habitat in unincorporated Monroe
County. About 6,074 acres (B3) of these fall inside the boundaries of the Big Pine and No Name
HCP and 40,214 acres (E B4:K4) occur on conservation lands. This leaves 9,802 acres (E
B5:K5) of habitat at risk, of which 5,069 acres (E B6:K6) fall on lands outside the purview of the
NFIP. Based on the data in Table EA-3, the ROGO permit allocations allow for the development
of 770.6 acres (E B12:K12) of habitat in unincorporated Monroe County, 686.5 acres
(E B 16:K16) of which are considered direct effects of the NFIP. We consider impacts to 72.8
acres (E B14:K14) of habitat on non -Federal lands outside the NFIP to be cumulative effects.
We consider impacts to 63.8 acres (E B 15:K15) of habitat through associated non-residential
development to also be an indirect effect of FEMA's NFIP action.
We have also identified about 8,580 acres (Q3) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
124
subject to the ROGO program and include a composite of state- and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
typically 1.38 percent of the total lands, we estimated that about 118 acres (0.0138*8,500=118.4)
of the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Village gfIslamorada
There are 2,077 acres (L3) of indigo snake habitat in the Village of Islamorada, of which 671
acres (L4) are on conservation lands. There are 50 acres that are outside the purview of the NFIP
(L6). The 1,406 acres of at -risk habitat (L5) are located on 1,433 parcels (L7). The ROGO
program allocates 28 units per year to the Village of Islamorada (L9) and the average suitable
habitat on a parcel is 1 acre (L8). Based on the data in Table EA-3, the ROGO permit
allocations allow for the development of 357.1 acres (L12) of habitat in Islamorada, 344.4 acres
(L16) of which are considered direct effects of the NFIP. We consider impacts to 10.4 acres
(L14) of habitat on non -Federal lands outside the NFIP to be cumulative effects. We consider
impacts to 9.1 acres (L15) of habitat through associated non-residential development to be an
indirect effect of FEMA's NFIP action.
City of Marathon
There are 2,871 acres of indigo snake habitat in the City of Marathon (P3), of which 961 acres
are on conservation lands (P4). The remaining 1,910 acres (P5), located on 1,718 parcels (P7),
are at risk of development. There are 781 acres (P6) that fall in areas not subject to the NFIP.
The ROGO program allocates 30 units per year to the City of Marathon (P9) and the average
suitable habitat on a parcel is 1.1 acres (P8). Based on the data in Table EA-3, the ROGO permit
allocations allow for the development of 433.E acres (P12) of habitat in Marathon, 256.3 (P16) of
which are considered direct effects of the NFIP. We consider impacts to 144.8 acres (P14) of
habitat on non -Federal lands outside the NFIP to be cumulative effects. We consider impacts to
9.8 acres (P15) of habitat through associated non-residential development to be an indirect effect
of FEMA's NFIP action.
ON of Key Colonv Beach
There are 20 acres (M3) of indigo snake habitat in the City of Key Colony Beach, none of which
are on conservation lands (M4) and all of which fall under the jurisdiction of the NFIP (M16).
These 20 acres, located on 112 parcels (M7), are at risk of development. The ROGO program
allocates 22 units (M9) per year to Key Colony Beach and the average suitable habitat on a
parcel is 0.2 acre (M8). Based on the data in Table EA-3, the ROGO permit allocations allow
for the development of all 20 acres (M16) of habitat in Key Colony Beach, all of which are
considered direct effects of the NFIP. We have also identified 0.55 acre of impact associated
with non-residential development (M10*0.025=0.55). Since there is no remaining at -risk habitat
(M15), this development will have no additional habitat impacts on the affected species.
City of Key West
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There are 869 acres of indigo snake habitat in the City of Key West (N3), of which 165 acres are
on conservation lands (N4). The remaining 703 acres (N5), located on 433 parcels (N7), are at
risk of development. There are 327 acres that fall in areas not subject to the NFIP (N6). The
ROGO program allocates 92 units per year to the Key West (N9) and the average suitable habitat
on a parcel is 1.6 acres (N8). Based on the data in Table EA-3, the ROGO permit allocations
allow for the development of all 703 acres of habitat in Key West (N12), 376.1 of which are
considered direct effects of the NFIP (N16). We consider impacts to 267.3 acres of habitat on
non -Federal lands outside the NFIP in our cumulative effects analysis (N14). We have also
identified 29.9 acres of impact associated with non-residential development (N10*0.025=29.9).
Since there is no remaining at -risk habitat (N15), this development will have no additional
habitat impacts on the affected species.
Ciiv of Lavton
There is less than an acre (0.1 acre) of indigo snake habitat in the City of Layton (03). This
small area falls on one lot, which is unprotected and subject to the NFIP (016). The ROGO
program allocates 3 units per year to Layton (09) and the average suitable habitat on a parcel is
0.1 acre (08). Based on the data in Table EA-3, the ROGO permit allocations allow for the
development of all suitable habitat in Layton, which is considered a direct effect of the NFIP
(016).
,Snmmary Habitat Loss Eastern Indigo ,Snake
Throughout the range of potential eastern indigo snake habitat in the Keys, we anticipate the
development of no more than 2,433 acres (R12+R15) from 2010 through 2023, considering the
current building permit ROGO program. Of this, 1,789 acres ( R15+R16) would be subject to
the NFIP. Therefore, FEMA's implementation of the NFIP would result in the loss of no more
than 2.7 percent (1,789/65,552=0.027) of the total indigo snake habitat in the Keys. We believe
this loss of habitat is not significant.
Direct effects - Habitat fragmentation
Since indigo snakes have large home ranges (12 to 494 acres), they can be susceptible to
constriction activities that fragment existing habitat types. The majority of the suitable habitat
in the Keys is protected, and we previously determined that the loss of 2.7 percent of the suitable
habitat would not result in a significant effect to the snake. These development activities may
also result in some minor fragmentation of habitat, however, much of the at -risk habitat is
already fragmented. Therefore, we expect the impacts due to fragmentation to be minimal.
Indirect effects — Vehicular and predatory mortality
The proposed development activities may increase traffic and the number of free roaming pets,
thereby increasing the possibility of vehicular and predator mortalities. We reasonably expect
that these indirect effects would occur within the same areas where suitable habitat for the snake
is present. The Service has not received a report of an indigo snake death due to vehicles since
1998 and we have no records of indigo snakes killed by cats. In addition, as stated in the status
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of the species section, sightings and documentation of indigo snakes in the Keys is rare. As
such, the Service believes that indirect effects from implementation of the NFIP are unlikely to
result in significant affects to the indigo snake.
Summary Changes since the previous BOs
The habitat loss and indirect effects identified in this analysis more accurately reflect the
potential 13-year development scenario than estimated in previous BOs. Our current
methodology benefited from advances in GIS data, including updated parcel and habitat maps, a
spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the ROGO
allocation process. The development scenario assumed in previous BOs identified the acres at
risk from the proposed action as 320 acres over 1,455 parcels (Service 2006c). Our current
analysis incorporates the ROGO development restrictions as well as the updated parcel data and
identifies the acres of habitat at risk from the proposed action as about 1,789 acres ( R15+R16)
over about 3,387 parcels (R18). We believe this is a more accurate estimate based on current
data; however, it is still a worst -case scenario estimate because our analysis is unable to account
for ROGO units used to redevelop existing residences or increased land conservation that
continues to occur in the Keys.
The proposed action could directly result in the estimated loss of a maximum of 1,789 acres of
habitat, most of which is already fragmented, with the average habitat per parcel being less than
2 acres (250 acres is considered the average home range for this species (Service 2008). The
vast majority of the species' habitat is outside of the Keys. The habitat in the Keys is relatively
unimportant considering the current population throughout the species' range. Furthermore, the
majority of the suitable habitat for this species (64.2 percent) is protected and county and
municipal development regulations discourage development in remaining high quality habitat.
Based on the above analysis, the Service considers the loss of 1,789 acres (about 3 percent of
total available habitat) to be minor for the eastern indigo snake. We believe this increase in
development will not be significant, particularly if FEMA implements the technical assistance
process outlined in the RPA to help avoid and minimize any potentially negative effects.
Kev deer
Potential suitable habitat for the Key deer is only present in unincorporated Monroe County,
specifically from Ohio Key south to Saddle Hill Key (Service 1985). This is the entire known
range of the Key deer.
Habitat loss
We consider Key deer habitat to primarily be native plant communities throughout the present
range of the deer, which extends from Bahia Honda west through the Saddlebunch Keys.
Scarified and developed lots devoid of native vegetation are not considered quality habitat;
however, these lots and developed lots are occasionally used by Key deer and are included in our
mapping focus area. We determined there are 30,482 acres (J3) of potential Key deer habitat in
Monroe County. Of these, 20,226 acres (J4) are located on conservation lands (66.4 percent) not
subject to development. Our GIS analysis shows that 8,205 parcels (J7) containing 10,256 acres
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(J5) of suitable habitat are at risk from development. Table EA-4 provides a detailed breakdown
of the acreages of Key deer habitat within the Keys communities where it is present.
Of the habitat in unincorporated Monroe County (30,482 acres (J3)), 7,202 acres (133) fall inside
the boundaries of the Big Pine and No Name HCP (Service 2006). The HCP allows for the
development of a maximum of 200 lots on Big Pine Key during the life of the ITP and provides
incidental take for 168 acres of Key deer habitat on Big Pine and No Name Keys. The HCP
requires mitigation of habitat lost due to development at a 3:1 ratio. In addition, the County
continues to conserve habitat on Big Pine Key lots that have been dedicated to the County
through the ROGO process. Because the HCP has already addressed impacts and exempted take
within its boundaries, this BO addresses impacts on potential suitable habitat outside of Big Pine
and No Name Keys. The HCP allowed for 10 Tier 1 and 190 Tier 2 and Tier 3 ROGO units
through 2023. The County has issued 5 Tier 1 permit, which leaves 5 remaining for the life of
the HCP. These 5 Tier 1 ROGO units in the HCP count towards the overall Tier 1 ROGO units
in unincorporated Monroe County for the life of the permit. As such, we factored them out of
the available Tier 1 ROGO units because the HCP is not included in our analysis.
Unincorporated Monroe County
There are 30,482 acres (J3) of Key deer habitat in unincorporated Monroe County, of which
7,203 acres (133) fall inside the boundaries of the Big Pine and No Name HCP. About 15,138
acres (J4-B4) of the remaining lands (20,279 acres (J3-133) fall on conservation lands outside of
the HCP. This leaves 8,141 acres (J5-B5) of habitat at risk, of which 3,709 acres (J6-136) fall on
lands outside the purview of the NFIP. The majority of the at -risk habitat (4,164 acres) (135) is
on Tier 1 lands, where development is the most restricted. As a worst -case estimate, our analysis
assumes that all of the lower Keys Tier 1 ROGO allocations will be built within Key deer
habitat. When evaluating impacts to SPA and Tier 3 lands, we considered that a third of the
available ROGO allocations for all of unincorporated Monroe County would be used in the lower
third of the Keys.
Based on the data in Table EA-4, the ROGO permit allocations allow for the development of
66.3 acres (1312) of Tier 1 habitat and all of the suitable habitat in SPA and Tier 3 lands (254
acres combined (E E12 and F12)), resulting in a maximum development acreage of 320.6 acres
(E D 12:1712) from 2010 through 2023. A subset of the impact acres (30.9 acres (E D 14:1714)) is
not subject to the NFIP, but we will consider it in our cumulative effects analysis. Therefore, we
can reasonably anticipate that the NFIP will directly affect no more than 289.6 acres (J16) of
habitat in unincorporated Monroe County suitable for the Key deer. FEMA's implementation of
the NFIP would result in the loss of no more than 0.9 percent (289.6/30,482=0.0094) of the total
Key deer habitat in the Keys. We believe this loss of habitat is not significant by itself and will
not hinder the survival or recovery of the species.
We have also identified about 3,510 acres (I3) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
subject to the ROGO program and include a composite of state- and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
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typically 1.38 percent of the total lands, we estimated that about 63 acres (0.0138*3,510=63) of
the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Habitat fragmentation
Habitat fragmentation by roads and scattered developments has occurred throughout this species'
range in the Florida Keys. In our assessment of the development potential in Key deer habitat
subject to the proposed action, we determined that the loss of 0.9 percent (289.6/30,482=0.0094)
of the suitable habitat would not result in a significant effect to the Key deer. In addition, the
majority of the Key deer population occurs on Big Pine and No Name Keys, which are outside of
the scope of the proposed action because of the existing HCP for these keys. The development
activities, including fencing on residential lots, may result in fragmentation of habitat and restrict
deer movement; however, the County requires "deer friendly" fencing, as well as preservation
and restoration of habitat through the ROGO process. These programs can reduce impacts due to
fragmentation. Therefore, we expect the impacts due to fragmentation to be minimal and we
believe the potential for fragmentation by development will not be significant by itself.
Indirect effects
Indirect effects include vehicular mortality, death or injury by domestic dogs, and other actions
such as fire management and introduction or spread of invasive exotic species.
Traffic Mortality: Road mortality has always been a concern of the Service regarding the Key
deer. Table EA-5 shows annual Key deer road mortality from 1996 through 2008 (Service,
unpublished data), both over their entire range as well as specifically on U.S. 1. Road mortality
accounts for about 60 percent of all Key deer mortality (Lopez 2001) and vehicle strikes on US
account for half of the total road mortality. The average number of Key deer killed by vehicles
in the 13-year period was 84 per year, with 42 per year killed on U. S. 1 (Table EA-5). The
number of Key deer killed by vehicles was notably high in 2005 and 2006, immediately
following an increase in the population of Key deer (Lopez 2004). Data trends (Figure EA-1)
show an overall positive correlation between Key deer road mortality and Key deer populations.
Vehicles average about 18,000 trips per day on U.S. 1 in the Keys (FDOT 2004), and traffic
counts for U.S. 1 on Big Pine Key average 16,344 trips per day for that area (Table EA-5).
In an attempt to determine the traffic effect the NFIP may have on the Key deer, we considered
the available ROGO system units in areas where traffic could affect the Key deer. As a
conservative estimate, we assume that half of the possible Marathon units, Key West units,
unincorporated Tier 1 units and the lower third of the unincorporated SPA/Tier 3 units (Table
EA-6) are likely to travel regularly in the range of the Key deer. Therefore, 128 new units per
year would result in 1,664 units over the 13-year timeframe (that could generate traffic in Key
deer areas. Each housing unit generates an average of 8 trips per day (Schanmugam, personal
communication, 2006), which would result in 13,312 new trips per day at build -out. Not all of
these trips will travel roads in the Key deer range, as many of them will be local; traffic studies
have shown that the majority of trips are within 0.25 mile of the residence (Schanmugam,
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personal communication, 2006). Based on this, we assume that 25 percent (3,328 trips per day)
of the trips could travel through the Key deer range (Table EA-6).
We based our projection of an additional 3,328 trips per day on a 13-year review period. For our
assessment, we consider the mid -point of 6.5 years to be the appropriate level of effect for our
analysis. This is because the effect is lower than anticipated for the first half and greater than
anticipated for the second half. Therefore, an average additional 1,664 trips per day (607,360
trips per year) could have an effect on Key deer. Based on the average trips per day and the
number of deer killed on U.S. 1, one deer is killed for approximately every 142,000 trips.
Therefore, the additional 1,664 units would equate to an increase in deer -traffic mortality of
about 4 deer per year on U.S. 1 at the mid -point assessment period. Based on these assumptions,
each new unit will generate 1 trip per day that could affect the Key deer.
Currently the U.S. 1 traffic mortality accounts for the death of about 6.5 percent of all Key deer,
based on a population estimate of 650 individuals (Lopez 2004). The additional 4 deer killed per
year at the mid -point assessment period as a result of the action increases this to about 7.08
percent (46/650=0.0708) (year 2015), a 0.58 percent increase (7.08-6.5=0.58) above the existing
level (year 2010).
The Service believes that our estimated increase in traffic -related mortality of about 0.58 percent
above existing conditions, based on a population of 650 deer is a minor effect to the species. We
note, however, that assessing the indirect effects of traffic from future development is difficult
because traffic affecting the Key deer is evenly distributed amongst residences and does not
account for the high percentage of tourist trips that contribute to vehicle mortality in Key deer.
Fire suppression in pine rocldands, due to the proximity of development, could also result in
deterioration of important Key deer habitat through ecological succession that results in
increased hardwood cover, decreased herbaceous cover, reduced light penetration, and a general
deterioration of habitat quality. However, the KDNR has a current prescribed fire management
plan that should serve to offset the effects of fire suppression. Other indirect effects of more
residential development may include harassment or harm by free -roaming pets (dogs) or human
activity.
Summary Changes since the previous BOs
In general, the habitat loss and indirect effects identified in this analysis more accurately reflect
the potential 13-year development scenario than estimated in previous BOs (Service 2006c). Our
current methodology benefited from advances in GIS data, including updated parcel and habitat
maps, a spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the
ROGO allocation process. The development scenario assumed in previous BOs identified the
acres at risk from the proposed action as 64 acres over 164 parcels (Service 2006c). Our current
analysis incorporates the ROGO development restrictions as well as the updated parcel data and
identifies the acres of habitat at risk from the proposed action as 289.6 acres (J16) over about 773
parcels (J18). Most of these impacts will occur on Tier 3 lands (145 acres; 672 parcels), which
are already highly fragmented and offer lower habitat value to the species. We believe this is a
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more accurate estimate based on current data; however, it is still a worst -case scenario estimate
because we cannot adequately account for continuing land conservation in the Keys.
The Key deer population is at or near an all-time high, and recent relocation efforts have returned
the species to parts of its historic range. In addition, the Service previously addressed all impacts
to the core Key deer population on Big Pine Key in the 2006 HCP; the HCP requires habitat
protection to offset impacts at a 3 :1 ratio.
We have estimated that the proposed action will directly result in adverse effects to about 289.6
acres of Key deer habitat (0.93 percent of all available habitat), all of which will occur on islands
other than Big Pine and No Name Keys. Key deer do not currently inhabit most of these other
islands as the majority of Key deer live on Big Pine and No Name Keys (in the boundary of the
HCP). About 145 acres of impacts will occur on already fragmented Tier 3 lands.
Consequently, impacts from fragmentation associated with habitat loss appear minimal.
As discussed above, Key deer traffic mortality associated with new development from the
proposed action is projected to increase an average of about 4 deer per year. Because of the
historically high population size of Key deer and the recent success of reintroduction efforts, this
level of mortality is not significant to the population (Lopez, personal communication, 2006). In
summary, we believe the level of habitat loss, traffic -related mortality, and possible
fragmentation analyzed in the BO will not adversely affect survival and recovery of the Key
deer. In addition, negative effects can be avoided and minimized if FEMA implements the
technical assistance process outlined at the end of this document.
Key Largo cotton mouse and Key Largo lroodrat
The Key Largo cotton mouse and Key Largo woodrat occupy the same area of the Keys and
have nearly identical habitat requirements. Potential suitable native habitat for the Key Largo
cotton mouse and the Key Largo woodrat is only present in unincorporated Monroe County,
specifically on Key Largo. The current known range of these species is on north Key Largo
from the intersection of U.S. 1 and C.R. 905 north to the Ocean Reef Club. Although suitable
habitat exists in south Key Largo, there have been no documented occurrences of either cotton
mice or woodrats on south Key Largo in recent years. Because the habitat mapped for these
species is identical and they are subject to the same threats, the analysis below applied to both
the Key Largo cotton mouse and the Key Largo woodrat.
Direct effects - Habitat loss
Potential suitable habitat for the cotton mouse and woodrat is tropical hardwood hammock in
Key Largo north of the U.S. 1 and S.R. 905 intersection and tropical hardwood hammock south
of the intersection of U.S. 1 and C.R. 905 south to, but not including, Tavernier on South Key
Largo. Although many of the hammocks in south Key Largo are isolated from the source
population, fragmented, and may contain feral and domestic cats, we consider them potential
suitable habitat for the cotton mouse and woodrat in our conservative analysis.
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We determined there are 4,191 acres (P3) of potential cotton mouse/woodrat habitat in Monroe
County (Table EA-7). Of these, 2,928 acres (P4) are located on conservation lands not subject to
development (69.9 percent). Our GIS analysis shows that 3,261 parcels (P7) containing 1,263
acres (P5) of suitable habitat are at risk from development. Table EA-7 provides a detailed
breakdown of the acreages of cotton mouse/woodrat habitat within the Keys communities where
it is present.
Of the habitat in unincorporated Monroe County (4,191 acres), 2 acres (B3) fall inside the
boundaries of the Nichols HCP (Service 1986) and 30 acres (0) fall inside the boundaries of the
Dressler Ocean Reef HCP (Service 1998). Because these HCPs have already addressed impacts
to both the cotton mouse and the woodrat, and have exempted take within their boundaries, this
BO addresses impacts on potential suitable habitat outside of the HCPs.
Unincorporated Monroe County
North Key Largo: The lands in north Key Largo (the known occupied habitat) total about 2,490
acres (E B3:I3), of which 2,240 acres (E B4:I4) (90 percent) are on conservation lands. This
leaves 250 acres (2,490-2,240= 250) of habitat at risk, of which 30 acres fall within the existing
HCPs and 127 acres (E D6:F6) fall on lands outside the purview of the NFIP. All suitable
habitat on north Key Largo falls either within the Tier 1 ROGO designation boundaries or in the
boundaries of Ocean Reef Club (which is exempt from ROGO review). As a worst -case
estimate, our analysis assumes that all three of the upper Keys Tier 1 ROGO allocations will be
built within the known occupied habitat in north Key Largo. Based on the data in Table EA-7,
the ROGO allocations would allow for development of 17.6 acres (F 12) of suitable cotton
mouse/woodrat habitat in north Key Largo, 2.7 acres (F15) of which would be the direct result of
the NFIP. We consider impacts to 14.9 acres (F 13) of habitat on non -Federal lands outside the
NFIP to be cumulative impacts. We consider the impacts to 1 acre of habitat through associated
non-residential development to be an indirect effect of FEMA's NFIP action.
We have identified an additional 19.2 acres (D12) of additional development in at -risk habitat
(125 acres (D5)) in North Key Largo that are not subject to ROGO restrictions (portions of
Ocean Reef Club). Of the 19.2 acres, 5.7 acres (D13) are outside NFIP and 13.5 acres (D15) are
considered direct effects of FEMA's NFIP action. We have also identified an additional 0.65
acre (26 parcels times 0.025=0.65) of non-residential development to be an indirect effect of
FEMA's NFIP action.
South Key Largo: The unoccupied suitable habitat in south Key Largo encompasses about 1,701
acres (E J3:O3) of which 688 acres (E J4:O4) (40.5 percent) are protected. This leaves 1,013
acres (1,701-688=1,013) of habitat at risk, of which 289 acres (E K6:N6+05) fall on lands
outside the purview of the NFIP. The habitat on south Key Largo is present on lands designated
as Tier 0, Tier 1, SPA, and Tier 3, as well as some areas where a Tier has not been designated.
Because we assumed that all of the Tier 1 allocations would occur in occupied habitat in North
Key Largo, there would be no remaining Tier 1 allocations for use in south Key Largo.
Therefore, all impacts would occur in SPA and Tier 3 lands. We considered that a third of the
available ROGO allocations for all of unincorporated Monroe County would be used in the upper
third of the Keys (including Key Largo). Based on the data in Table EA-7, the ROGO
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allocations would allow for development of 189.7 acres (E L12:M12) of suitable cotton
mouse/woodrat habitat in SPA and Tier 3 areas on south Key Largo, 179.8 acres (E L15:M15) of
which would be the direct result of the NFIP. We consider impacts to 9.9 acres (E L13:M13) of
habitat on non -Federal lands outside the NFIP to be cumulative effects. We consider impacts to
20.8 acres (E L14:M14) of habitat through associated non-residential development to be an
indirect effect of FEMA's NFIP action.
,Sunnvary Kev Largo
Based on the data in Table EA-7, the ROGO permit allocations allow for the development of
17.6 acres (F12) of Tier 1 habitat in north Key Largo and 189.7 acres (E L12:M12) of suitable
habitat in SPA and Tier 3 lands in south Key Largo, resulting in an estimated maximum
development acreage of 207.3 acres (P11) from 2010 through 2023. A subset of the impact acres
(21.8 acres) (P 14) is not subject to the NFIP, but we will consider it in our cumulative effects
analysis.
We identified and additional 19.2 acres (1312) of development associated with lands in north Key
Largo not subject to ROGO restrictions (Ocean Reef Club). About 13.5 acres (D15) are subject
to NFIP and 5.7 acres (1313) considered non-NFIP lands.
We have also identified about 287 acres (03) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
subject to the ROGO program and include a composite of state- and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
typically 1.38 percent of the total lands, we estimated that about 3.94 acres (0.0138*287=3.96) of
the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Therefore, we can reasonably anticipate that the NFIP will directly affect no more than 196.0
acres (P 15) of habitat in unincorporated Monroe County suitable for the Key Largo cotton mouse
and Key Largo woodrat. FEMA's implementation of the NFIP would result in the loss of no
more than 4.7 percent (P 16) of the total cotton mouse/woodrat habitat in the Keys. As the
majority of suitable habitat (70 percent) (2,928/4,191=0.699) is protected on conservation lands,
we believe this loss (4.7 percent) of habitat is minor.
Habitat fragmentation
The ranges of the Key Largo cotton mouse and Key Largo woodrat have declined by more than
50 percent because of habitat loss due to land clearing for residential and commercial
constriction (National Society et al. 1990, Brown 1978a, Hersh 1981, Barbour and Humphrey
1982b). However, the majority (70 percent) of habitat for these species in the Keys is now
protected and we previously determined that the loss of 4.7 percent of the suitable habitat due to
development would not result in a significant effect to either the cotton mouse or the woodrat.
The proposed action may result in fragmentation of habitat; however, much of the at -risk habitat
is already fragmented, especially in south Key Largo. The County's ROGO process requires
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preservation and restoration of habitat concurrent with new development, which could help
reduce impacts due to fragmentation. Therefore, we expect the impacts due to fragmentation to
be minimal and we believe the potential for fragmentation by development will not be significant
by itself.
Indirect Effects
Mortality from feral and domestic cats may be the greatest current threat to the persistence of the
Key Largo cotton mouse and Key Largo woodrat. Cats consume mice and rats as a major
component of their diets. The number of cats present in the Keys has increased over the past 20
years commensurate with the increase in the human residential population.
To assess the effects that feral cats may have on the extant populations of cotton mice and
woodrats, we used the 500-meter buffer surrounding all identified suitable habitat as outlined
previously. The 500-meter buffer is based on the estimated distance domestic cats will travel
from their homes (Frank, personal communication, 1996). For the cotton mouse and woodrat,
we drew the buffer around only the known occupied habitat in north Key Largo (Table EA-8a).
Based on our GIS analysis, we determined that there are about 5,988 acres (R4) of buffer lands
surrounding cotton mouse/woodrat habitat, of which 4.322 acres (R5) (72.1 percent) are on
conservation lands protected from future development. There are 327 undeveloped parcels (R7)
at risk from development in the buffer area. The remaining 1,190 residential parcels (R8) within
the buffer lands are already developed. Table EA-8a shows the detailed breakdown of these at -
risk lands and parcels.
We base our cat predation analysis on the estimated number of cats within the buffer lands
surrounding the cotton mouse/woodrat habitat. Research shows that 34 percent of residences
have cats and that, on average, each of these has 2.1 cats (FWC 2003). This research also
demonstrates that, about 40 percent of these cats are exclusively indoor pets and 60 percent
occasionally go outdoors and stalk prey. Based on these numbers, the 1,190 existing residences
in the buffer lands have about 510 cats (C 16), which are occasionally outdoors.
The FWC (2003) study also estimates that the feral cat population is about 66 percent of the
population of domestic cats. Based on the number of domestic cats, there is an estimated feral
cat population of 566 cats (1316) in north Key Largo buffer lands. Therefore, the combined
number of outdoor cats (domestic and feral) living in buffer lands that could affect cotton mice
and woodrats is about 1,076 cats (E16).
Although we cannot quantify the amount of take resulting from cat predation, we believe this
threat could cause a significant adverse effect and has the potential to adversely affect survival
and recovery of the Key Largo woodrat and Key Largo cotton mouse. Hence, we analyzed the
potential increase in outdoor cats resulting from the proposed action as a surrogate. We show
calculations in Tables EA-8a and EA-8b and provide discussion below. Because cotton mice
and woodrats do not inhabit south Key Largo, we considered only the increase in cats in north
Key Largo habitat and buffer lands.
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North Key Largo (suitable habitat): As determined in the previous habitat analysis, we anticipate
an additional 6 residences (F 17, EA-7) in Tier 1 suitable habitat on north Key Largo and 26 new
residences (D17, EA-7) in Ocean Reef Club to result from the NFIP. This may result in 14
additional (C 17) outdoor domestic cats and 15 additional (D 17) feral cats. Therefore the
projected outside cat population over the 13-year period is estimated to increase by 29 cats
(E 17).
As discussed above, the majority of the Tier I habitat on north Key Largo is on lands outside the
purview of the NFIP. Therefore, we assume the remaining 33 ROGO allotments (F10-F17, EA-
7) in Tier 1 habitat will occur on lands that are not subject to the NFIP. We have also identified
an additional 11 new residences (L17, EA-8b) in non-NFIP lands in Ocean Reef Club. The 44
additional residences (L21) will result in 19 new outdoor cats (C20) and 21 new feral cats (1320).
The projected outside cat population over the 13-year period is estimated to increase by 40 cats
(E20). We consider this increase in our cumulative effects section since this development is not
subject to the NFIP.
North Key Largo (buffer lands): Details on the lands subject to development in the buffer area
details are shown in Table EA-8a. Because we assumed the Tier 1 ROGO allocations would
occur within the suitable habitat, they would no longer be available for use in the buffer;
therefore, we anticipate no additional Tier 1 development in the buffer in our calculations.
Monroe County's ROGO system allots 191 units per year to unincorporated SPA and Tier 3
areas. As shown in Table EA-7, we assume the use of 64 units per year in the upper Keys, 832
units (E L10 and M10, EA-7) from 2010 through 2023. Because none of these were used within
the suitable habitat area in north Key Largo, all of them remain and could be used in the buffer
area surrounding north Key Largo at -risk habitat. However, in our assessment of at risk lands in
south Key Large, as shown on Table EA-7, we also show the use of all 832 units in Tier 2 and
Tier 3 lands in south Key Largo.
However, for our `worst" case assessment of cat predation, we are considering that all 832
ROGO units will be available for use in the buffer lands surrounding at -risk habitat in north Key
Largo. The number of vacant SPA and Tier 3 parcels (77) (R10, EA-8a) in the buffer is less than
the available ROGO allotment. Therefore, we assume that all of the parcels (77) will be
developed by 2023. All but one (P7) of these parcels is within the jurisdiction of the NFIP.
These additional 76 residences (B 18, EA-8b) built through the NFIP could result in 33 new
outdoor domestic cats (C 18) and 36 new feral cats (D 18), for an estimated increase in the free -
roaming cat population of 69 cats (E18), a 6.4 percent increase over the existing cat population.
The one parcel developed in the CBRA area would result in one new free -roaming cat, which is
considered in our cumulative effects section since this development is not subject to the NFIP.
Summary Changes since the previous BOs
In general, the habitat loss and indirect effects identified in this analysis more accurately reflect
the potential 13-year development scenario than estimated in previous BOs. Our current
methodology benefited from advances in GIS data, including updated parcel and habitat maps, a
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spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the ROGO
allocation process. Our current analysis incorporates the ROGO development restrictions as well
as the updated parcel data and identifies the acres of habitat at risk from the proposed action as
196 acres (P15, EA-7) over about 838 parcels (P17, EA-7) throughout Key Largo. We believe
our impact estimate is more accurate than in previous BOs; however, it is still a worst -case
scenario estimate because we cannot adequately account for increased land conservation that
continues to occur in the Keys.
North Key Largo: The Key Largo cotton mouse and Key Largo woodrat are rare Upper Keys
endemics, existing only in a limited area and at extremely low densities where they occur. Our
current analysis incorporates the ROGO development restrictions as well as the updated parcel
data and identifies the acres of habitat at risk from the proposed action as 2.7 acres (F 15, EA-7)
over about 6 parcels (F17, EA-7). We also note that an additional 26 parcels (1317) not subject to
ROGO although subject to NFIP may be developed in Ocean Reef Club and may affect 13.5
acres (1315). The combined impact in at -risk lands is 16.2 acres over 32 parcels (B 17, EA-8b)
with an associated increase in the free roaming cat population of 29 additional cats (E17, EA-
8b). This habitat loss represents less than 0.1 percent (16.5/4,191=0.0039) of the total suitable
habitat and a 2.7 percent increase (F 17, EA-8b) in the outdoor cat population.
We estimate an additional 14.9 acres (F13, EA-7) of impacts on 33 parcels (F10-F17, EA-7) will
occur in north Key Largo within areas not subject to NFIP. We also estimate an additional 5.7
acres of impacts on 11 parcels, not subject to ROGO in Ocean Reef Club that may also be
developed. These 44 new residences could generate an additional 40 outdoor cats (E20, EA-8b).
This non-NFIP habitat loss represents 0.5 percent (20.6/4,191=0.00491) of the total suitable
habitat and a 3.7 percent (F20, EA-8b) increase in the outdoor cat population; we consider these
impacts in our cumulative effects section.
South Key Largo: Although there are no known populations of the cotton mouse or woodrat on
south Key Largo, habitat exists that would be suitable to support expansion, should these species
expand their range. Our current analysis incorporates the ROGO development restrictions as
well as the updated parcel data and identifies the acres of habitat at risk from the proposed action
as 179.8 acres (E J15:N15, EA-7) over about 807 parcels (E J17:N17). This loss represents 4.3
percent of the total suitable habitat (179.8/4,191=0.043). We estimate an additional 9.9 acres
(E J13:N13) of impacts that will occur in south Key Largo within areas not subject to the NFIP
to be cumulative effects. We consider impacts to 20.8 acres (E L14:M14) of habitat through
associated non-residential development to be an indirect effect of FEMA's NFIP action.
Because there are currently no known cotton mice or woodrats in south Key Largo, we do not
anticipate that an increase in cats in south Key Largo would have an effect on these species other
than limiting the potential for expansion of woodrats or cotton mice into this area.
The proposed action could directly result in the loss of a maximum of 216.8 acres
(196+20.8=216.8) of potential suitable cotton mouse/woodrat habitat, some of which is already
fragmented. This represents 5.2 percent (216.8/4,191=0.052) of the total amount of potential
suitable habitat available to this species in Monroe County. The majority of the suitable habitat
for this species throughout Key Largo (69.9 percent (2,928/4,191=0.699)) and 90 percent
(2,240/2,489=0.899) of the habitat within the known species' range on north Key Largo is
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protected. Therefore, the Service believes that this loss of habitat will not be significant to the
species. County and municipal development regulations discourage development in remaining
quality habitat and require minimal clearing of native habitats, furthermore, the technical
assistance review process outlined at the end of this document can build upon the county and
municipal oversight now in place and help FEMA avoid and minimize negative effects.
Kev tree -cactus
Potential suitable native habitat is present throughout all the municipalities in the Keys. There
are seven known populations of tree cactus, four of these occur in unincorporated Monroe
County and three in the Village of Islamorada. Six of these are on protected lands. Although
suitable habitat exists in other areas, there are no known populations in Marathon, Layton, Key
West, or Key Colony Beach at this time.
Habitat loss
The Key tree -cactus grows in a narrow range of plant associations, which include tropical
hardwood hammocks and a thorn -scrub association known locally as a "cactus hammock." The
major requirements for successful growth of Key tree -cactus are an open canopy and an absence
of floods or fires. We generated habitat data based on the present known range of the Key tree -
cactus, which includes hardwood hammock and beach berm habitats on Big Pine Key, Long
Key, and Upper and Lower Matecumbe Keys. In addition, we also mapped unoccupied potential
suitable habitat based on historical accounts and beach berm and hardwood hammock areas
throughout the Keys (Table EA-9).
We determined there are 9,207 acres (R3) of potential Key tree -cactus habitat in Monroe County.
Of these, 6,449 acres (R4)(70 percent [6,449/9,207=0.070) are located on conservation lands not
subject to development. Our GIS analysis shows that 5,607 parcels (R7) containing 2,758 acres
(R5) of suitable habitat are at risk from development. Table EA-9 provides a detailed breakdown
of the acreages of Key tree -cactus habitat within the Keys communities where it is present.
None of the three HCPs in the Keys provide take for the Key tree cactus, therefore, these areas
are considered in our direct effects analysis.
Unincorporated Monroe County
There are 7,684 acres (E B3:K3) of Key tree -cactus habitat in unincorporated Monroe County, of
which 5,959 acres (E B4:K4) are protected on conservation lands. Of the 1,725 acres of at -risk
habitat (7,684-5,959=1,725), 500 acres (E B6:K6) fall on lands outside the purview of the NFIP.
Most of the at -risk acres (1,014 acres) (G5) of Key tree -cactus habitat occur on Tier 1 lands;
however, development in Tier 1 lands is the most restricted. Based on the data in Table EA-9,
the ROGO permit allocations allow for the development of 58.3 acres (G13) of Tier 1 habitat,
1.6 acres (B 12) of habitat within Big Pine and No Name Keys, and all of the suitable habitat in
SPA and Tier 3 lands (204 acres combined [E H12 and I12), for a total ROGO regulated
development of 264.9 acres (E B 12+ E G12:I12). An additional 4.6 acres (D 12) of development
not subject to ROGO restriction in Ocean Reef Club may also be developed for a total impact of
269.5 acres (E B12:I12). A subset of the total impact acres, 35.4 acres [E B13:I13]) is not
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subject to the NFIP and is included in our cumulative effects. We also estimate an additional
2.71 acres (E B 15:K15) of associated non-residential development to be an indirect effect of
FEMA's NFIP action. Therefore, we can reasonably anticipate that the NFIP will affect 272.2
acres (269.5+2.71=272.2) of Key tree -cactus habitat in unincorporated Monroe County; this
accounts for only 2.96 percent (272.2/9,207=0.0296) of the total suitable habitat in the county.
We have also identified about 436 acres (Q3) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
subject to the ROGO program and include a composite of state- and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
typically 1.38 percent of the total lands, we estimated that about 6 acres (0.0138*436=6.01) of
the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Village gfIslamorada
There are 445 acres (L3) of Key tree -cactus habitat in the Village of Islamorada, of which 145
acres (L4) are on conservation lands. The remaining 300 acres (L5), located on 779 parcels (L7),
are at risk of development; there is 1 acre (L6) not subject to the NFIP. The ROGO program
allocates 28 units (L9) per year to the Village of Islamorada and the average suitable habitat on a
parcel is 0.4 acre (L8). Based on the calculations in Table EA-9, the ROGO program would
allow for the development of 140.1 acres (L12) of habitat, 0.6 acre (L13) of which not be subject
to the NFIP. We estimate 0.5 acre (L14) of non-federal impacts outside of the NFIP to be
cumulative effects. We also estimate 9.1 acres (L15) of additional non-residential development
to be an indirect effect of FEMA's NFIP action. Therefore, we can reasonably anticipate that the
NFIP will directly affect 145 acres (139.5+9.1=145) of Key tree -cactus habitat in the Village of
Islamorada; this accounts for only 1.57 percent (145/9,207=0.0157) of the total suitable habitat in
the county.
City of Marathon
There are 588 acres (P3) of potential Key tree -cactus habitat in the City of Marathon, of which
340 acres (P4) are on conservation lands. The remaining 249 acres (P5), located on 579 parcels
(P7), are at risk of development. Twenty-eight (28) acres (P6) fall in areas not subject to the
NFIP. The ROGO program allocates 30 units (P9) per year to the City of Marathon and the
average suitable habitat on a parcel is 0.4 acre (P8). Based on the calculations in Table EA-9,
the ROGO program would allow for the development of 167.4 acres (P 12) of habitat, 18.8 acres
(P13) of which not be subject to the NFIP. We estimate 16.8 acres (P14) of non-federal impacts
outside of the NFIP to be cumulative effects. We also estimate 9.8 acres (P15) of additional non-
residential development to be an indirect effect of FEMA's NFIP action. Therefore, we can
reasonably anticipate that the NFIP will affect 158.4 acres (148.6+9.8=158.4) of Key tree -cactus
habitat in the City of Marathon; this accounts for only 1.7 percent (158.4/9,207=0.017) of the
total suitable habitat in the county.
City of Key West
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There are 48 acres (N3) of potential Key tree -cactus habitat in the City of Key West, of which 5
acres (N4) are on conservation lands. The remaining 43 acres (N5), located on 102 parcels (N7),
are at risk of development. Seventeen (17) acres (N6) fall in areas not subject to the NFIP. The
ROGO program allocates 92 units (N9) per year to Key West and the average suitable habitat on
a parcel is 0.4 acre (N8). Based on the calculations in Table EA-9, the ROGO program would
allow for the development of a1143 acres (N12) of at -risk habitat, 17.3 acres (N13) of which not
be subject to the NFIP. We estimate that 25.5 acres (N16) will be subject to NFIP. We estimate
15.5 acres (N14) of non-federal impacts outside of the NFIP that will be considered in our
cumulative effects analysis. We have also identified 29.9 acres (1,196 parcels*0.025=29.9) of
impact associated with non-residential development. Since there is no remaining at -risk habitat,
this development will have no additional habitat impacts on the affected species. Therefore, we
can reasonably anticipate that the NFIP will directly affect 25.5 acres (N16) of Key tree -cactus
habitat in Key West; this accounts for only 0.3 percent (25.5/9,207=0.0027) of the total suitable
habitat in the county.
City of Key Colonv Beach
There are 5.5 acres (M3) of potential Key tree -cactus habitat in the City of Key Colony Beach,
all of which are at -risk and subject to the NFIP (M16). The ROGO program allocates 22 units
(M9) per year to Key Colony Beach and the average suitable habitat on a parcel is 0.1 acre (M8).
Based on the calculations in Table EA-9, the ROGO program would allow for the development
of all 5.5 acres (M12) of at -risk habitat. We have also identified 7.15 acres (286 parcels *
0.025=7.15) of impact associated with non-residential development. Since there is no remaining
at -risk habitat, this development will have no additional habitat impacts on the affected species.
Therefore, we can reasonably anticipate that the NFIP will directly affect 5.5 acres (M16) of Key
tree -cactus habitat in Key Colony Beach; this accounts for only 0.06 percent (5.5/9,207=0.0006
of the total suitable habitat in the county.
0 v of Lavton
There is less than an acre (0.1 acre) (03) of Key tree cactus habitat in the City of Layton. This
small area falls on one lot (07) which is unprotected and subject to the NFIP. The ROGO
program allocates 3 units (09) per year to Layton and the average suitable habitat on a parcel is
0.1 acre (08). Based on the data in Table EA-9, the ROGO permit allocations allow for the
development of all of the suitable habitat in Layton, which is considered a direct effect of the
NFIP. We have also identified 0.97 acre (39 parcels *0.025=0.097) of impact associated with
non-residential development (015). Since there is no remaining at -risk habitat, this development
will have no additional habitat impacts on the affected species.
Key tree -cactus summary — habitat loss
Throughout the range of potential Key tree -cactus habitat in the Keys, we anticipate the
development of no more than 638.7 acres (R12) from 2010 through 2023, considering the current
building permit ROGO program. Of this, 587.4 acres (R16+R15) would be subject to the NFIP.
Therefore, FEMA's implementation of the NFIP would result in the loss of no more than 6.4
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percent (587.4/9,207=0.064) of the total Key tree -cactus habitat in the Keys. We believe this
loss of habitat is not significant.
Habitat fragmentation
Over half of the potential suitable Key tree -cactus habitat in the Keys is protected, and we
previously determined that the loss of 6 percent of the suitable habitat due to development would
not result in a significant effect to the Key tree -cactus. These development activities may also
result in some minor fragmentation of habitat; however, much of the at -risk habitat is already
fragmented, as it is located in areas that have existing development. In addition, preservation
and restoration of habitat will occur through the County's ROGO process that can reduce
fragmentation. Therefore, we expect the impacts due to fragmentation to be minimal.
Indirect effects
The Service does not anticipate any indirect effects to the Key tree -cactus or its habitat to result
from the proposed action.
Summary Changes since the previous BOs
In general, the habitat loss and indirect effects identified in this analysis more accurately reflect
the potential 13-year development scenario than estimated in previous BOs. Our current
methodology benefited from advances in GIS data, including updated parcel and habitat maps, a
spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the ROGO
allocation process. The development scenario assumed in previous BOs identified the acres at
risk from the proposed action as 351 acres over 1,483 parcels (Service 2006c). Our current
analysis incorporates the ROGO development restrictions as well as the updated parcel data and
identifies the acres of habitat at risk from the proposed action as 587.4 acres (R16+R15) over
about 1,994 parcels (R18). We believe this is a more accurate estimate based on current data;
however, it is still a worst -case scenario estimate because we cannot adequately account for
increased land conservation that continues to occur in the Keys.
Our habitat analysis showed the action would result in the loss of about 587.4 acres (R16+R15)
of Key tree -cactus habitat, which is about 6.4 percent (587.4/9,207=0.064) of the total available
habitat. Since the previous BOs, two additional known populations of Key tree -cactus have been
protected because of lands being brought into public ownership or encumbered with a
conservation easement. At this time, only one known population remains on private lands
subject to development. Direct impact to the known population, as well as a reduction of
potential habitat where the Key tree -cactus can expand remains a concern. However, the Service
believes that FEMA can address this concern by implementing the technical assistance process
outlined at the end of this document.
Lower Kevs marsh rabbit
Potential suitable native habitat for the Lower Keys marsh rabbit is only present in
unincorporated Monroe County, specifically in the lower Keys. The Lower Keys marsh rabbit
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occurs on many of the larger lower Keys, including Sugarloaf, Saddlebunch, Boca Chica, and
Big Pine Keys and some smaller islands near these keys (Forys et al. 1996; Faulhaber 2003). Its
original range extended from Big Pine Key to Key West, encompassing a linear distance of about
30 miles; however, that range has been reduced by habitat alteration, contaminants, road
mortality, and predation. The Status of the Species section provides additional details on threats
to the Lower Keys marsh rabbit. The most recent population data (Perry, personal
communication, 2006) suggests there are about 500 animals present in 52 clusters.
Habitat loss
The Lower Keys marsh rabbit is endemic to the lower Keys and inhabits tidal, brackish, and
transitional upland and freshwater environments. It is habitat specific and depends on a
transition zone of grasses and sedges for feeding, shelter, and nesting. Potential suitable marsh
rabbit habitat is predominantly in transitional zones between marine environments and uplands.
We determined there are 19,472 acres (J3) of potential marsh rabbit habitat in Monroe County.
Of these, 13,714 acres (J4) (70.4 percent) are located on conservation lands not subject to
development. Our GIS analysis shows that 3,710 parcels (J7) containing 5,758 acres (J5) of
suitable habitat are at risk from development. Table EA-10 provides a detailed breakdown of the
acreages of marsh rabbit habitat within the Keys communities where it is present. Because the
potential loss of marsh rabbit habitat was not evaluated in the Big Pine and No Name HCP, we
consider effects on Big Pine and No Name Key in our analysis.
Unincorporated Monroe County
There are 19,472 acres (J3) of marsh rabbit habitat in unincorporated Monroe County, of which
13,714 acres (J4) are on conservation lands. This leaves 5,758 acres (J5) of habitat at risk, of
which 3,098 acres (M) fall on lands outside the purview of the NFIP. The majority of the at -risk
habitat (2,644 acres)(135) is on Tier 1 lands, where development is the most restricted. As a
worst -case estimate, our analysis assumes that all of the lower Keys Tier 1 ROGO allocations
will be built within marsh rabbit habitat. When evaluating impacts to SPA and Tier 3 lands, we
considered that a third of the available ROGO allocations for all of unincorporated Monroe
County would be used in the lower third of the Keys.
Based on the data in Table EA-10, the ROGO permit allocations allow for the development of
48.1 acres (D12) of Tier 1 habitat, 55.6 acres (E E12,F12) of suitable habitat in SPA and Tier 3
lands, and 2.6 acres of habitat (B 12) on Big Pine and No Name Keys, resulting in a maximum
development acreage of 106.3 acres (J12) from 2010 through 2023. A subset of the impact acres
(23.7 acres)(J13) is not subject to the NFIP. We estimate 17.1 acres (J14) of non-federal impacts
outside of the NFIP to be cumulative effects. We also estimate 1 acre (J15) of additional non-
residential development to be an indirect effect of FEMA's NFIP action. Therefore, we can
reasonably anticipate that the NFIP will affect no more than 83.61 acres (J15+J16) of habitat in
unincorporated Monroe County suitable for the Lower Keys marsh rabbit. FEMA's
implementation of the NFIP would result in the loss of no more than 0.43 percent
(83.6/19,472=0.0043) of the total marsh rabbit habitat in the Keys and we believe this loss of
habitat is not significant to the species.
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We have also identified about 1,427 acres (I3) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
subject to the ROGO program and include a composite of state- and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
typically 1.38 percent of the total lands, we estimated that about 19.7 acres (0.0138* 1,427=19.7)
of the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Habitat fragmentation
The majority of the suitable marsh rabbit habitat in the Keys is protected, and we previously
determined that the loss of 0.43 percent of the suitable habitat would not result in a significant
effect to the rabbit. These development activities may also result in some minor fragmentation
of habitat, however, much of the at -risk habitat is already fragmented. Therefore, we expect the
impacts due to fragmentation to be minimal.
Indirect effects
Mortality from feral and domestic cats may be the greatest current threat to the persistence of the
Lower Keys marsh rabbit (Forys and Humphrey 1999). No detailed studies on the diets of feral
cats in the keys are available; however, studies elsewhere found feral cats consumed rabbits as a
component of their diets. The number of cats present in the lower Keys has increased over the
past 20 years commensurate with the increase in the human residential population. Rabbits
appear to be equally susceptible to cat predation, regardless of gender or age, and Forys (1995)
found that 14 of 19 occupied patches have domestic and feral cats present.
To assess the effects that feral cats may have on the extant populations of Lower Keys marsh
rabbits, we used the 500-meter buffer surrounding all identified suitable habitat as outlined
previously. The 500-meter buffer is based on the estimated distance domestic cats will travel
from their homes (Frank, personal communication, 1996). Based on our GIS analysis, we
determined that there are about 17,568 acres (P4, EA-1 la) of buffer lands surrounding potential
suitable marsh rabbit habitat, of which 9,562 acres (P5) (54.4 percent) are on conservation lands
protected from future development. There are 3,805 vacant parcels (P7) in the buffer area.
Some of these lie within the Big Pine and No Name Keys HCP and cat predation was addressed
previously and some are in CBRA zones that are not subject to the NFIP. An additional 8,927
residential parcels (P8) within the buffer lands are already developed. Table EA-1 la shows the
detailed breakdown of these at -risk lands and parcels.
We base our cat predation analysis on the estimated number of cats within the buffer lands
surrounding the Lower Keys marsh rabbit habitat. Research shows that 34 percent of residences
have cats and each of these household has 2.1 cats (FWC 2003). This research also suggests
that, on average, 40 percent of these cats are exclusively indoor pets and 60 percent occasionally
go outdoors and stalk prey. Based on these numbers, the 8,927 existing residences (B16) in the
buffer lands have about 3,824 cats (C 16) which are occasionally outdoors.
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The FWC (2003) study also provides an estimate that feral cats comprise 66 percent of the
population of domestic cats. Based on the number of domestic cats, there is an estimated feral
cat population of 4,249 cats (1316) in lower Keys buffer lands. Therefore, the combined number
of outdoor cats (domestic and feral) living in buffer lands that could affect marsh rabbits is about
8,074 cats (F16).
Although we cannot quantify the amount of take from cat predation, we believe this threat could
cause a significant adverse effect and has the potential to adversely affect survival and recovery.
Hence, we analyzed the potential increase in outdoor cats resulting from the proposed action as a
surrogate. We show calculations in Table EA-1la and EA-1lb and provide discussion below.
Lower Keys (suitable habitat): As determined in the previous habitat analysis, we anticipate an
additional 18 residences (117) in Tier 1 suitable habitat in the lower Keys and an additional 3
residences (J16) on Big Pine and No Name Keys to result from the NFIP. In this area, the
ROGO allotment (871 units [I20]) exceeds the available SPA and Tier 3 parcels with marsh
rabbit habitat (257 units [E J18, J19,K18, and K19]). Therefore, we assume that all of SPA and
Tier 3 parcels (257) will be developed by year 2023. Five (5) of these parcels (K19) are not
subject to the NFIP.
The sum total of new residences subject to NFIP is 273 units (J20). The additional 273
residences subject to the NFIP could result in 117 new (C 17) outdoor domestic cats and 130 new
(D 17) feral cats. We estimate the projected free -roaming cat population will increase by 247
(E17) cats over the 13-year period due to NFIP projects within suitable habitat.
As discussed above, a portion of the Tier I habitat in the lower Keys is on lands outside the
purview of the NFIP. Therefore, we assume the remaining 16 ROGO allotments in Tier 1 habitat
(K17), 2 ROGO allotments on Big Pine and No Name Keys (K16), and development of 5 Tier 3
parcels (K19) will occur on lands that are not subject to the NFIP. The 23 additional residences
(K20) will result in 10 new outdoor domestic cats (C20) and 11 new feral cats (1320). The
projected outside cat population over the 13-year period is estimated to increase by 21 cats (E20)
due to development outside the scope of the NFIP. We consider this increase in our cumulative
effects section since this development is not subject to the NFIP.
Lower Keys (buffer lands): The lands at risk of development in the buffer area (8,006 acres)
(P6) consists of 2,814 acres of Tier 1 lands (D6+K6),1,633 acres within the HCP (136+I6), 1,609
acres in Tier 4 (G6+ N6), 319 acres in undesignated tiers (H6+06), 215 acres in Tier 0 (C6+J6),
and 110 acres in Tier 2 (E6+L6). Cat predation effects associated with buffer lands within Big
Pine and No Name Key were addressed previously by the Service and are excluded from our
current evaluation. Cat predation effects associated with lands with CBRA (3,484 acres) (E
J6:O6) are not subject to NFIP and are considered as a component of our cumulative effects
assessment.
Because we assumed the Tier 1 ROGO and HCP Tier 1 ROGO allocations would occur within
suitable habitat, they would no longer be available for use in the buffer; therefore, we anticipate
no additional Tier 1 or HCP Tier 1 development in the buffer in our calculations. The remaining
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at -risk buffer lands (2,865 acres) (E B6, C6,E6,F6,G6, and H6) subject to development are
located outside of Tier 1ROGO and the HCP Tier 1ROGO. Further details are in Table EA-1 la.
Monroe County's ROGO system allots 191 units per year to unincorporated SPA and Tier 3
areas. As shown in Table EA-10, we assume the use of 64 units per year in the lower Keys, 832
units from 2010 through 2023. Because we previously accounted for 257 (E J18, J19, and K19,
EA-1 lb) of these in our analysis of development within suitable habitat, 575 remain (1-20) for
use in the buffer area. As shown in Table EA-1 la and b, the remaining ROGO units were
distributed proportionally to the CBRA (50 units) (N18+ N19) and non-CBRA (525 units)
(018+019) lands at -risk in the buffer.
The number of vacant SPA and Tier 3 parcels (1,310) (+E7+ F7) in the buffer that are subject to
NFIP exceeds the available ROGO allotment (525 units) (020). Therefore, we assume that the
entire ROGO allotment available (525) will be developed by year 2023. The additional 525
residences result in 225 new outdoor domestic cats (C18) and 250 new feral cats (D18). We
estimate the projected free -roaming cat population over the 13-year period to increase by 474
cats (E18), a 5.9 percent increase (F18) over the existing cat population.
As discussed above, a portion of the SPA and Tier 3 habitat in the lower Keys is on lands outside
the purview of the NFIP. Therefore, we assume that the 50 CBRA parcels (N20) will be
developed without the NFIP. These 50 additional residences will result in 22 new outdoor
domestic cats (C21) and 24 new feral cats (1321). The projected free -roaming cat population
over the 13-year period is estimated to increase by 46 cats (E21) due to development outside the
scope of the NFIP. We consider this increase in our cumulative effects section since this
development is not subject to the NFIP.
Other Indirect Effects
The development that will occur because of the proposed action will increase human population
size and road use, which may increase the risk of vehicular mortality. In addition, habitat that
lies in close proximity to developed areas likely will continue to degrade because of vegetative
succession caused by suppression of wildfire in the urban interface.
Summary Changes since the previous BOs
In general, the habitat loss and indirect effects identified in this analysis more accurately reflect
the potential 13-year development scenario than estimated in previous BOs. Our current
methodology benefited from advances in GIS data, including updated parcel and habitat maps, a
spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the ROGO
allocation process. The development scenario assumed in previous BOs identified the acres at
risk from the proposed action as 30 acres over 24 parcels (Service 2006c). Our current analysis
incorporates the ROGO development restrictions as well as the updated parcel data and identifies
the acres of habitat at risk from the proposed action as 81 acres (J16, EA-10) over about 274
parcels in the lower Keys (J18, EA-10). We believe our impact estimate is more accurate than in
previous BOs; however, it is still a worst -case scenario estimate because we cannot adequately
account for increased land conservation that continues to occur in the Keys.
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Our analysis has identified habitat loss from the proposed action to be the loss of 83.6 acres
(J15+J16, EA-10) from development and an increase in the free roaming cat population of 721
cats (E19, EA- 1lb) with 247 (E17, EA- 1lb) from development in potential suitable habitat and
474 (E18, EA-1 lb) from development in the buffer lands. This level of habitat loss represents
0.43 percent (83.6/19,472=0.0043) of potential suitable habitat and the increase in free -roaming
cats represents a 8.9 percent increase over the existing population. Our analysis identified an
additional 17.1 acres (J14, EA-10) of non-federal development impacts and an increase in the
free -roaming cat population of 66 new outside cats (E22, EA- 1lb) that are expected to occur
outside of the purview of the NFIP. We consider these effects in our cumulative analysis.
The proposed action could directly result in the loss of a maximum of 83.6 acres of potential
suitable marsh rabbit habitat, some of which is already fragmented. This represents 0.43 percent
of the total suitable habitat available to this species in Monroe County and the direct loss of
habitat may not be significant to the species. However, indirect impacts from development,
notably the potential for increased mortality from domestic and feral cats, are a significant
concern. As discussed in the status of the species, a population viability analysis conducted for
the Lower Keys marsh rabbit predicted that this species might become extinct in 20 to 30 years
under the current conditions (Forys and Humphrey, 1999). Further studies by LaFever and
Lopez (2006) of the marsh rabbit metapopulation on Boca Chica Key (Naval Air Station Key
West) estimated the probability of this metapopulation persisting for ten years, under the current
conditions, was 41.6 percent. Both studies found that control of cat populations on Boca Chica
Key would likely have the greatest benefit to marsh rabbits, far more than any other management
action considered. As a result, further development and the related indirect effects from
domestic and feral cats in the range of the Lower Keys marsh rabbit could exacerbate an already
precarious condition for this species. FEMA can address these concerns by implementing the
technical assistance review process outlined at the end of this document.
&haws .siralloirtail butterfly
Potential suitable native habitat is present for the Schaus swallowtail butterfly in unincorporated
Monroe County and the Village of Islamorada. In the Florida Keys, the current occupied range
of this species is restricted to North Key Largo, although potential suitable habitat based on
historical records extends south to Upper Matecumbe Key.
Habitat loss
The Schaus swallowtail butterfly is restricted to a habitat where its primary food plant,
torchwood, grows abundantly (Service 1982c). This habitat is limited to coastal southeast
Florida and the Upper Keys, in mature tropical hardwood hammocks. We consider the species
range to include those lands in North Key Largo and hammocks remaining in South Key Largo,
Upper and Lower Matecumbe Key, and Lignumvitae Key.
We determined there are 5,002 acres (Q3) of potential Schaus swallowtail habitat in Monroe
County. Of these, 3,240 acres (Q4) (64.8 percent) are located on conservation lands not subject
to development. Our GIS analysis shows that 4,312 parcels (Q7) containing 1,763 acres (Q5) of
suitable habitat are at risk from development. Table EA-12 provides a detailed breakdown of the
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acreages of Schaus swallowtail butterfly habitat within the two Keys communities where it is
present.
Unincorporated Monroe County
North Key Largo: The lands in north Key Largo (the known occupied habitat) are about 2,486
acres (E B3:I3) of which 2,240 acres (E B4:I4) are in public ownership (90.1 percent). This
leaves 246 acres (4,486-2,240=246) of habitat at risk, of which 134 acres (E B6:I6) fall on lands
outside the purview of the NFIP. Of the habitat in north Key Largo, 2 acres (B3) fall inside the
boundaries of the Nichols HCP (Service 1986) and 30 acres (0) fall inside the boundaries of the
Dressler Ocean Reef HCP (Service 1998). Because these HCPs have already addressed impacts
to the Schaus swallowtail butterfly, and have exempted take within their boundaries, this BO
addresses impacts on potential suitable habitat outside of the HCPs.
As a worst -case estimate, our analysis assumes that all 3 of the upper Keys Tier 1 ROGO
allocations will be built within the known occupied habitat in north Key Largo. Based on the
data in Table EA-12, the ROGO allocations would allow for development of 17.6 acres (F12) of
suitable Schaus swallowtail habitat in north Key Largo. Only 2.4 acres (F16) of this would be
subject to the NFIP. We have identified an additional 15.2 acres (F 14) of development outside
NFIP as component of our cumulative effects. We have also identified an additional acre (F15)
of associated non-residential development to be an indirect effect of FEMA's NFIP action.
We have identified an additional 19.2 acres (1312) of additional development in at risk habitat
(125 acres (135)) in North Key Largo that are not subject to ROGO restrictions (portions of
Ocean Reef Club). Of the 19.2 acres, 5.7 acres (D13) are outside NFIP and 13.5 acres (D15) are
considered direct effects of FEMA's NFIP action. We have also identified an additional 0.65
acre (26 parcels times 0.025=0.65) of non-residential development to be an indirect effect of
FEMA's NFIP action.
South Key Largo: The unoccupied suitable habitat in south Key Largo encompasses about 1,569
acres (E J3:N3) of which 843 acres (E J4:N4) (53.7 percent) are in public ownership. This leaves
726 acres (1,569-843=726) of habitat at risk, of which 42 acres (E J6:N6) fall on lands outside
the purview of the NFIP. Because we assumed that all of the Tier 1 allocations would occur in
occupied habitat, there would be no remaining Tier 1 allocations for use in south Key Largo.
Therefore, all impacts would occur in SPA and Tier 3 lands. We considered that a third of the
available ROGO allocations for all of unincorporated Monroe County would be used in the upper
third of the Keys (including Key Largo). Based on the data in Table EA-12, the ROGO
allocations would allow for development of 189.9 acres (L12+M12) of combined SPA and Tier 3
Schaus swallowtail habitat in south Key Largo. Most of this (179.5 acres) (L16+M16) would be
subject to the NFIP. An additional 20.8 acres (L15+15) of associated non-residential
development and 10.4 acres (L14+M14) of impacts outside the jurisdiction of NFIP are
considered in our cumulative effects analysis.
Based on the data in Table EA-12, the ROGO permit allocations allow for the development of
17.6 acres (F 12) of Tier 1 habitat in north Key Largo, 189.9 acres (L12+M12) of suitable habitat
in SPA and Tier 3 lands in south Key Largo, and 19.2 acres in Ocean Reef Club (outside the
HCP) (D12) for a total development acreage of 226.7 acres (189.9+17.6+19.2=226.7). A subset
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of the impact acres (31.4 acres) (E E13:N13) is not subject to the NFIP. Therefore, we can
reasonably anticipate that the NFIP will directly affect 195.3 acres (226.7-31.4=195.3) of Schaus
swallowtail butterfly habitat in unincorporated Monroe County; this accounts for 3.9 percent
(195.3/5,002=0.039) of the total suitable habitat in the county.
We have also identified about 349 acres (P3) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
subject to the ROGO program and include a composite of state- and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
typically 1.38 percent of the total lands, we estimated that about 4.8 acres (0.0138*349=4.81) of
the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Village gfIslamorada
There are 599 acres (03) of Schaus swallowtail butterfly habitat on Upper Matecumbe Key in
the Village of Islamorada, of which 157 acres (04) are on conservation lands. The remaining
442 acres (05), located on 1,055 parcels (07), are at risk of development; there are 19 acres (06)
not subject to the NFIP. The ROGO program allocates 28 units (09) per year to the Village of
Islamorada and the average suitable habitat on a parcel is 0.4 acre (08). Based on the
calculations in Table EA-12, the ROGO program would allow for the development of 152.4
acres (012) of habitat, 6.6 acres (013) of which fall outside the jurisdiction of the NFIP.
Therefore, we can reasonably anticipate that 145.8 acres (016) of habitat will be developed
through the NFIP. This accounts for 2.9 percent (017) of the total suitable habitat in the county.
An additional 9.1 acres (015) of associated non-residential development is considered to be an
indirect effect of FEMA's NFIP action. We have also identified 6.5 acres (014) of non-federal
impacts outside the jurisdiction of NFIP are considered in our cumulative effects analysis.
Throughout the range of potential Schaus swallowtail habitat in the Keys, we anticipate the
development of no more than 4 10. 1 acres (Q12+Q15) from 2010 through 2023, considering the
current building permit ROGO program. Of this, 372.2 acres (Q16+Q15) would be subject to
the NFIP. Therefore, FEMA's implementation of the NFIP would result in the loss of no more
than 6.8 percent (Q17) of the total Schaus swallowtail habitat in the Keys; we believe this loss of
habitat is not significant.
Habitat fragmentation
The majority (64.8 percent) (3,240/5,002=0.648) of the potential suitable Schaus swallowtail
habitat in the Keys is protected, and we previously determined that the loss of 6.8 percent of the
suitable habitat due to development would not result in a significant effect to the Schaus
swallowtail butterfly. These development activities may also result in some minor fragmentation
of habitat; however, much of the at -risk habitat is already fragmented, as it is located in areas
that have existing development. The County and municipalities are conducting efforts to avoid
loss of native vegetation and the County's ROGO process requires preservation and restoration
of habitat. These programs can reduce impacts due to fragmentation. Therefore, we expect the
147
impacts due to fragmentation to be minimal and we believe the potential for fragmentation by
development will not be significant by itself.
Indirect effects
Indirect effects associated with the proposed action include the use of pesticides for mosquito
control. The extensive use of commercial pesticides has contributed to the decline of the Schaus
swallowtail butterfly (Service 1993a) and pesticide use for mosquito control would increase with
an increase in population. Monroe County currently operates an active mosquito control
program that uses Dibrom, Baytex, and Teknar; studies show that these pesticides are toxic to the
related giant swallowtail (Heraclides cresphontes) in the laboratory (Emmel 1986b). The use of
pesticides on or near butterfly habitat can result in direct mortality and can cause behavioral
modification and impaired reproduction. Further indirect effects can occur due to pesticide
application to food sources and other components of the habitat. An increase in urbanization
also results in an increase in the need for roads. Road mortality of Schaus swallowtail butterfly
has been documented (Covell 1976) and can be expected to continue into the future. While we
can reasonably assume that these indirect effects will occur, we are unable to determine what
effect they will have on the overall population.
Summary Changes since the previous BOs
In general, the habitat loss and indirect effects identified in this analysis more accurately reflect
the potential 13-year development scenario than estimated in previous BOs. Our current
methodology benefited from advances in GIS data, including updated parcel and habitat maps, a
spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the ROGO
allocation process. The development scenario assumed in previous BOs identified the acres at
risk from the proposed action as 207 acres over 978 parcels (Service 2006c). Our current
analysis incorporates the ROGO development restrictions as well as the updated parcel data and
identifies the acres of habitat at risk from the proposed action as 372.2 acres (Q16+Q15) over
about 1,183 parcels (Q18). We believe this is a more accurate estimate based on current data;
however, it is still a worst -case scenario estimate because we cannot adequately account for
increased land conservation that continues to occur in the Keys.
The proposed action could directly result in the loss of a maximum of 372.2 acres (Q16+Q15) of
potential suitable Schaus swallowtail habitat, some of which is already fragmented. This
represents about 6.8 percent (Q17) of the total amount of potential suitable habitat available to
this species in Monroe County. The Service believes that this loss of habitat will not be
significantly detrimental to the health of the species considering the majority (64.8 percent)
(3,240/5,002=0.648) of the suitable habitat for this species in the Keys is protected. County and
municipal development regulations discourage development in remaining quality habitat and
require minimal clearing of native habitats and the planting of native vegetation that benefits
Schaus swallowtail butterflies. These processes, as well as the existing protected lands in the
Keys, could provide a corridor that would allow the Schaus swallowtail butterfly to reclaim parts
of its historic range in the future if the conditions that have reduced it improve. Furthermore, the
technical assistance review process outlined at the end of this document can build upon the
county and municipal oversight now in place and help FEMA avoid and minimize negative
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effects.
,Wver rice rat
Potential suitable native habitat for the silver rice rat is only present in unincorporated Monroe
County, specifically in the lower Keys, below the Seven -Mile Bridge. Recently, a silver rice rat
was captured on the northern tip of Big Pine Key, documenting this species presence there for
the first time in recent history. Little information is available on rice rat populations other then
they are small, isolated, and widely distributed in their range. N. Perry (personal
communication, 2006) found a mean silver rice rat density of 1.2 rats per acre in his studies.
Based on an occupied habitat of about 8,500 acres, he estimated the current population range of
the species to be between 5,000 and 20,000. We based our assessment on the mean of this range
(10,000 rats).
Habitat loss
The silver rice rat is endemic to the lower Keys and inhabits areas of salt marsh, transitional
buttonwood, freshwater wetlands, and mangrove habitats. We determined suitable habitat based
on the present known range, from Howe Key through the Saddlebunch Keys. We also
considered potentially suitable, but unoccupied, habitat based on appropriate vegetation and
proximity to known rice rat populations. We determined there are 21,748 acres (J3) of potential
rice rat habitat in Monroe County. Of these, 14,256 acres (J4) are located on conservation lands
not subject to development (65.6 percent). Our GIS analysis shows that 3,985 parcels (J7)
containing 7,492 acres (J5) of suitable habitat are at risk from development.
Table EA-13 provides a detailed breakdown of the acreages of rice rat habitat within the Keys
communities where it is present. Because the silver rice rat was not evaluated in the Big Pine
and No Name HCP, we consider effects on Big Pine and No Name Key in our analysis. Critical
Habitat has been designated for the silver rice rat and was not considered in our suitable habitat
analysis because it is evaluated separately. We estimate there are 8,532 acres (J3, EA-15) of
critical habitat in addition to the suitable habitat discussed here and we analyze effects to silver
rice rat critical habitat in the next section.
Unincorporated Monroe County
There are 21,748 acres (J3) of rice rat habitat in unincorporated Monroe County, of which 14,256
acres (J4) are on conservation lands. This leaves 7,492 acres (J5) of habitat at risk, of which
3,243 acres (M) fall on lands outside the purview of the NFIP. These acres do not include areas
designated as Critical Habitat. Over half of the at -risk habitat (3,859 acres) (E B5 and 135) is on
Tier 1 lands or on Big Pine and No Name Keys, areas where development is the most restricted.
As a worst -case estimate, our analysis assumes that all 3 of the lower Keys Tier 1 ROGO
allocations and all of the HCP Tier 1 ROGO allocations will be built within rice rat habitat.
When evaluating impacts to SPA and Tier 3 lands, we considered that a third of the available
ROGO allocations for all of unincorporated Monroe County would be used in the lower third of
the Keys.
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Based on the data in Table EA-13, the ROGO permit allocations allow for the development of
57.6 acres (1312) of Tier 1 habitat, 3.3 acres (1312) on Big Pine and No Name Keys, and all 139
acres of suitable habitat in SPA and Tier 3 lands, resulting in a maximum development acreage
of 199.7 acres (J12) from 2010 through 2023. There are 28.4 acres (J13) of impacts not subject
to the NFIP, but we will consider these lands in our cumulative effects analysis. We have also
identified about 1 additional acre (J14) of associated non-residential development to be an
indirect effect of FEMA's NFIP action. Therefore, we can reasonably anticipate that the NFIP
will affect about than 172.3 acres (J15+J14) of habitat in unincorporated Monroe County suitable
for the silver rice rat. FEMA's implementation of the NFIP would result in the loss of no more
than 0.8 percent (172.3/21,748=0.00792) of the suitable rice rat habitat in the Keys and we
believe this loss of habitat is not significant to the species.
We have also identified about 3,358 acres (I3) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
subject to the ROGO program and include a composite of state- and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
typically 1.38 percent of the total lands, we estimated that about 46.3 acres (0.0138*3,358=46.3)
of the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Habitat fragmentation
The majority of the suitable rice rat habitat in the Keys is protected, and we previously
determined that the loss of 0.8 percent of the suitable habitat would not result in a significant
effect to the rat. These development activities may also result in some minor fragmentation of
habitat, however, the majority of the impacted acres will occur on Tier 3, where much of the at -
risk habitat is already fragmented. In addition, an additional 8,532 acres (J3, EA-15) of Critical
Habitat exists for the rice rat outside of the suitable habitat analyzed in this section. Therefore,
we expect the impacts due to fragmentation to be minimal.
Indirect Effects
Mortality from feral and domestic cats may be the greatest current threat to the persistence of the
silver rice rat. Cats consume mice and rats as a major component of their diets. The number of
cats present in the Keys has increased over the past 20 years commensurate with the increase in
the human residential population.
To assess the effects that feral cats may have on the extant populations of rice rats, we used the
500-meter buffer surrounding all identified suitable habitat as outlined previously. The 500-
meter buffer is based on the estimated distance domestic cats will travel from their homes
(Frank, personal communication, 1996). Based on our GIS analysis, we determined that there
are about 5,206 acres (P4) of buffer lands surrounding potential suitable rice rat habitat, of which
1,673 acres (P5) (32.1 percent) are on conservation lands protected from future development.
There are 3,346 vacant parcels (P6) at risk from development in the buffer area. Some of these
lie within CBRA zones that are not subject to the NFIP. An additional 7,128 parcels (P8) within
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the buffer lands are already developed. Table EA-14a shows the detailed breakdown of these at -
risk lands and parcels.
We base our cat predation analysis on the estimated number of cats within the buffer lands
surrounding the silver rice rat habitat. Research shows that 34 percent of residences have cats
and that, on average, each household has 2.1 cats (FWC 2003). This research also demonstrates
that, on average, 40 percent of these cats are exclusively indoor pets and 60 percent occasionally
go outdoors and stalk prey. Based on these numbers, the 7,128 existing residences (B 16) in the
buffer lands have about 3,054 cats (C 16) which are occasionally outdoors.
The FWC (2003) study also provides an estimate that feral cats comprise 66 percent of the
population of domestic cats. Based on the number of domestic cats, there is an estimated feral
cat population of 3,393 cats (1316) in lower Keys buffer lands. Therefore, the combined number
of outdoor cats (domestic and feral) living in buffer lands that could affect silver rice rats is
about 6,447 cats (E16).
Although we cannot quantify the amount of take to the species from cat predation, we believe
this threat could cause a significant adverse effect and has the potential to adversely affect
survival and recovery. Hence, we analyzed the potential increase in outdoor cats resulting from
the proposed action as a surrogate. We show calculations in Tables EA-14a and EA-14b and
provide discussion below.
Lower Keys (suitable habitat): As determined in the previous habitat analysis, we anticipate an
additional 17 residences (J17) in Tier 1 suitable habitat in the lower Keys and an additional 6
residences (J16) on Big Pine and No Name Keys to result from the NFIP. In this area, the
ROGO allotment exceeds the available SPA and Tier 3 parcels with rice rat habitat. Therefore,
we assume that all of SPA and Tier 3 parcels (483) (E J18, J19, and K19) will be developed by
year 2023. Eight (8) of these parcels (K19) are not subject to the NFIP. The additional 497
residences (J20) subject to the NFIP could result in 213 new outdoor domestic cats (C 17) and
237 new feral cats (D17). We estimate the projected free -roaming cat will increase by 449 cats
(E17) over the 13-year period due to NFIP projects within suitable habitat.
As discussed above, a portion of the Tier I habitat in the lower Keys is on lands outside the
purview of the NFIP. Therefore, we assume the remaining 15 ROGO allotments (K17) in Tier 1
habitat, 2 ROGO allotments (K16) on Big Pine and No Name Keys, and development of 8 Tier 3
parcels (K19) (total of 25) (K20) will occur on lands that are not subject to the NFIP. The 25
additional residences will result in 11 new outdoor domestic cats (C20) and 12 new feral cats
(1320). The projected outside cat population over the 13-year period is estimated to increase by
23 cats (E20) due to development outside the scope of the NFIP. We consider this increase in
our cumulative effects section since this development is not subject to the NFIP.
Lower Keys (buffer lands): The lands subject to development in the buffer area are primarily in
Tier 1 (864 acres) (D6 and K6) and in the HCP (1,308 acres) (B6 and I6). Because we assumed
the Tier 1 ROGO and HCP Tier 1 ROGO allocations would occur within the suitable habitat,
they would no longer be available for use in the buffer; therefore, we anticipate no additional
Tier 1 or HCP Tier 1 development in the buffer in our calculations. The remaining at -risk buffer
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lands (1,361 acres) (C6+E6:H6 and J6+K6:O6) subject to development are located outside of
Tier 1 and the HCP Tier 1. Further details are in Table EA-14a.
Monroe County's ROGO system allots 191 units per year (Table EA-1) to unincorporated SPA
and Tier 3 areas. As shown in Table EA-13, we assume the use of 64 units per year in the lower
Keys, 832 units (E E10 and 1710, EA-13) from 2010 through 2023. Because we previously
accounted for 483 of these (E E17 and F17, EA-13) in our analysis of development within
suitable habitat, 349 remain (832-483=349) for use in the buffer area. As shown in Table EA-
14a and 14b, the remaining ROGO units were distributed proportionally to the CBRA (23 units)
(N20) and non-CBRA (326 units) (020) lands at -risk in the buffer.
The number of vacant SPA and Tier 3 parcels (1,160) (E7+F7) in the buffer that are subject to
NFIP exceeds the available ROGO allotment. Therefore, we assume that the entire ROGO
allotment available (326) will be developed by year 2023. The additional 326 residences (B 18)
result in 140 new outdoor domestic cats (C 18) and 155 new feral cats (D18). We estimate the
projected free -roaming cat population over the 13-year period to increase by 295 cats (E18), a
4.6 percent increase over the existing cat population.
As discussed above, a portion of the SPA and Tier 3 habitat in the lower Keys is on lands outside
the purview of the NFIP. Therefore, we assume that the 23 CBRA parcels (N20) will be
developed without the NFIP. These 23 additional residences (1321) will result in 10 new outdoor
domestic cats (C21) and 11 new feral cats (1321). The projected free -roaming cat population
over the 13-year period is estimated to increase by 21 cats (E21) due to development outside the
scope of the NFIP. We consider this increase in our cumulative effects section since this
development is not subject to the NFIP.
Other Indirect Effects
The development that will occur because of the proposed action will increase human population
size and road use, which may increase the risk of vehicular mortality. In addition, habitat that
lies in close proximity to developed areas likely will continue to degrade because of vegetative
succession caused by suppression of wildfire in the urban interface.
Summary Changes since the previous BOs
In general, the habitat loss and indirect effects identified in this analysis more accurately reflect
the potential 13-year development scenario than estimated in previous BOs. Our current
methodology benefited from advances in GIS data, including updated parcel and habitat maps, a
spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the ROGO
allocation process. Our current analysis incorporates the ROGO development restrictions as well
as the updated parcel data and identifies the acres of habitat at risk from the proposed action as
172.3 acres (J15+J14), EA-13) over about 497 parcels (J17, EA-13) in the lower Keys. We
believe our impact estimate is more accurate than in previous BOs; however, it is still a worst -
case scenario estimate because we cannot adequately account for increased land conservation
that continues to occur in the Keys.
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Our analysis has identified habitat loss from the proposed action to be the loss of 172.3 acres
(J15+J14), EA- 13) from development and an increase in the free roaming cat population of 744
cats (E19, EA-14b) with 449 (E17, EA-14b) from development in potential suitable habitat and
295 (E18, EA-14b) from development in the buffer lands. This level of habitat loss represents
0.8 percent (172.3/21,748=0.0079) of potential suitable habitat and the increase in free -roaming
cats represents a 11.5 percent increase (F 19) over the existing population. Our analysis
identified an additional 28.4 acres (J13, EA-13) of development impacts and an increase in the
free -roaming cat population of 43 cats (E22, EA-14b) expected to occur outside of the purview
of the NFIP. We consider these effects in our cumulative analysis.
The most recent data on the rice rat population (Perry et al. 2005) points to a stabilized
population of 5,000 to 20,000 individuals and a range expansion to Big Pine and Ramrod Keys
(Perry 2006). These studies assert that the population is resistant to modest increases in
predation. Considering the above facts, the Service believes that the loss of less than 1 percent
(172.3/21,748=0.0079) of all suitable habitat will not be significant to the species. Furthermore,
our cat predation analysis predicts an increase of less than 12 percent (744/6,447=0.115) in the
free -roaming cat population with a worst -case development scenario. This is likely an
overestimate; Perry (personal communication, 2006) rarely saw evidence of cats near rice rat
habitat. Cats prefer transitional zones that are partially wet and dry, and not the purely wetland
habitat rice rats use. Due to the stable population, it is likely able to withstand this increase in
predation. FEMA can minimize these impacts by implementing the technical assistance review
process outlined at the end of this document.
,Wver rice rat critical habitat
The Service designated critical habitat for the silver rice rat, which includes all lands and waters
above mean low tide on the following Keys: Little Pine, Big Torch, Middle Torch, Johnston,
Raccoon, and the Water Keys. In addition, it includes Summerland Key north of U.S. 1, and the
Saddlebunch Keys south of U.S. 1; but not lands in Township 675, Range 27E, Section 8, nor the
northern 1/5 of Section 17 (50 CFR 17.95). The critical habitat encompasses an area of about
9,362 acres, all of which falls within unincorporated Monroe County. This area is in addition to
the suitable habitat acres identified in the previous section. Within the designated boundary,
only 8,532 acres have the constituent elements required to be critical habitat for rice rats.
To estimate this acreage, we considered all habitat in our current GIS layers to have contained
the required constituent elements at the time of listing and only those areas of open water were
excluded. The difference between the habitat estimates at the time of listing and the current GIS
overlay is considered to be the acres lost to habitat alteration. At the time of listing this value
was 8,847 acres of habitat. Following this approach, we estimated that of the 9,362 acres within
the listing boundaries, 515 acres constitute open water, 8,532 acres constitute lands with
constituent elements, and the remaining lands, 315 acres were altered and/or developed.
Unincorporated Monroe County
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We determined there are 8,532 acres (J3) of critical habitat with constituent elements for the
silver rice rat in Monroe County. Of these, 6,750 acres (J4) (79.1 percent) are located on
conservation lands not subject to development. Our GIS analysis shows that 644 parcels (J7)
containing 1,782 acres (J5) of critical habitat are at risk from development. Table EA-15
provides a detailed breakdown of the acreages of rice rat critical habitat within the Keys
communities where it is present.
There are 1,782 acres (J5) of at -risk critical rice rat habitat in unincorporated Monroe County, of
which 952 acres (M) fall on lands outside the purview of the NFIP. There is no critical habitat
within the boundaries of the Big Pine and No Name Key HCP. The majority of the at -risk
critical habitat (1,283 acres) (135) is on Tier 1 lands, where development is the most restricted.
As a worst -case estimate, our analysis assumes that all 3 of the lower Keys Tier 1 ROGO
allocations will be built within rice rat critical habitat. When evaluating impacts to SPA and Tier
3 lands, we considered that a third of the available ROGO allocations for all of unincorporated
Monroe County would be used in the lower third of the Keys.
Based on the data in Table EA-15, the ROGO permit allocations allow for the development of
69.9 acres (D 12) of Tier 1 critical habitat and 0.4 acre (F 12) of critical habitat in Tier 3 lands,
resulting in a maximum development acreage of 70.3 acres (J12) from 2010 through 2023, of
which 34.6 acres(J13) is not subject to the NFIP. There are 33.9 acres (J14) of non-federal
impacts not subject to NFIP and considered cumulative effects. We consider the 0.9 acre (J15)
of associated non-residential development to be indirect effects of FEMA's NFIP action.
Therefore, we can reasonably anticipate that the NFIP will directly affect no more than 36.6
acres (J16+J15) of silver rice rat critical habitat in unincorporated Monroe County. FEMA's
implementation of the NFIP would result in the loss of no more than 0.4 percent
(36.6/8,532=0.00428) of the remaining critical habitat for rice rats in the Keys and we believe
this loss of critical habitat is not significant to the species.
If we consider that at the time of critical habitat designation, all available habitat containing
critical elements, then out of the 9,362 acres in the listing, available habitat would have been
8,847 acres (515 acres of open water were excluded). Since listing, 315 acres no longer contain
critical elements and represents a loss of 3.56 percent of available critical habitat
(315/8,847=0.0356). The impacts associated with the NFIP would add an additional loss of 36.6
acres and represent a loss change from 3.56 percent to 3.97 percent (351.6/8,847=0.0397).
We have also identified about 466 acres (Q3) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
subject to the ROGO program and include a composite of state- and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
typically 1.38 percent of the total lands, we estimated that about 6.4 acres (0.0138*466=6.4) of
the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Habitat fragmentation
154
The majority of the critical rice rat habitat in the Keys is protected, and we previously
determined that the loss of an additional 36.6 acres of the critical habitat would not result in a
significant effect to the rat. These development activities may result in some minor
fragmentation of critical habitat. However, an additional 21,748 acres of suitable habitat exists
for the rice rat outside of the designated critical habitat analyzed in this section. Therefore, we
expect the impacts due to fragmentation to be minimal.
Summary Changes since the previous BOs
In general, the habitat loss and indirect effects identified in this analysis more accurately reflect
the potential 13-year development scenario than estimated in previous BOs. Our current
methodology benefited from advances in GIS data, including updated parcel and habitat maps, a
spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the ROGO
allocation process. The development scenario assumed in previous BOs identified the acres of
critical habitat at risk from the proposed action as 387 acres over 1,479 parcels (Service 2006c).
Our current analysis incorporates the ROGO development restrictions as well as the updated
parcel data and identifies the acres of critical habitat at risk from the proposed action as 36.6
acres (J16+J15, EA-15) over about 17 parcels (J18, EA-15). We believe this is a more accurate
estimate based on current data; however, it is still a worst -case scenario estimate because we
cannot adequately account for increased land conservation that continues to occur in the Keys.
We determined based on our GIS analysis that 36.6 acres (0.4 percent of the total) (J16+J15, EA-
15) of silver rice rat critical habitat could be lost from the proposed action. We also determined
that development has already occurred in about 315 acres of rice rat critical habitat (9,362-
515(open water)-8,532 (J3) =315). This acreage combined with the projected loss is about 351.6
acres (315+36.6=351.6), which represents about 4 percent of the designated critical habitat
(351.6/8,847=0.0397). Over 96 percent of the designated critical habitat will remain intact and it
is unlikely that a significant amount of primary constituent elements will be lost to development
in the future. Most primary constituent elements occur on parcels in the Tier I category, which is
capped at a maximum of 3 ROGO permits per year and where only 36.6 acres of impact can
occur in the next 13 years. As a result, the primary constituent elements of silver rice rat critical
habitat, including mangrove swamps, salt marsh flats, buttonwood transition vegetation, and
cattail marshes, will not be significantly impacted by the action. Furthermore, given existing
regulatory mechanisms in place at the Federal, State, and local levels that protect these habitat
types, any impacts are likely to be avoided, minimized, and mitigated.
Our estimate of impacts to critical habitat is a conservative estimate based on the use of all lower
keys Tier 1 ROGO units in silver rice rat critical habitat. This is unlikely as these Tier 1 ROGO
units are spread throughout the lower Keys and our estimate is a worst -case scenario estimate.
In addition, according to the best available science (Perry, personal communication, 2006), the
silver rice rat population is stable and may be as high as 20,000 rats and distributed widely.
Because of these facts, we believe the action's impacts will not be significant for the species or
its critical habitat. Furthermore, the technical assistance review process outlined at the end of
this document can help FEMA avoid and minimize negative effects.
155
,Stocklsland tree snail
Potential suitable native habitat is present for the Stock Island tree snail in unincorporated
Monroe County, Village of Islamorada, and the City of Marathon. There are currently 27 known
populations of Stock Island tree snails in the Keys and two on the mainland. All of the known
Keys' populations occur in unincorporated Monroe County and eight of these are on protected
lands. Although suitable habitat exists throughout the Keys, there are no known populations
outside of unincorporated Monroe County at this time. Many of the known snail populations are
outside the snail's historic range on Stock Island, near Key West at the extreme southern end of
the Florida Keys. For example, 21 populations exist on Key Largo. Because the Stock Island
tree snail population is assessed by the number of populations, exact numbers of snails are
unknown.
Habitat loss
Potential suitable Stock Island tree snail habitat includes all tropical hardwood hammocks and
beach berms in the action area. We determined there are 9,207 acres (R3) of potential Stock
Island tree snail habitat in Monroe County. Of these, 6,449 acres (R4) are located on
conservation lands not subject to development (70 percent). Our GIS analysis shows that 5,607
parcels (R7) containing 2,758 acres (R5) of suitable habitat are at risk from development. Table
EA-9 provides a detailed breakdown of the acreages of Stock Island tree snail habitat within the
three Keys communities where it is present. None of the three HCPs in the Keys provide take
for the Stock Island tree snail; therefore, these areas are considered in our direct effects analysis.
Unincorporated Monroe County
There are 7,684 acres (E B3:K3) of Stock Island tree snail habitat in unincorporated Monroe
County, of which 5,959 acres (E B4:K4) are protected on conservation lands. Of the 1,725 acres
(E B5:K5) of at -risk habitat, 500 acres (E B6:K6) fall on lands outside the purview of the NFIP.
Most of the at -risk acres (1,014 acres) (G5) of Stock Island tree snail habitat occur on Tier 1
lands; however, development in Tier 1 lands is the most restricted. Based on the data in Table
EA-9, the ROGO permit allocations allow for the development of 58.3 acres (G12) of Tier 1
habitat, 1.6 acres (B 12) of habitat within Big Pine and No Name Keys, and all of the suitable
habitat in SPA and Tier 3 lands (204 acres combined [E H12 and I12), for a total ROGO
regulated development of 264.9 acres (E B 12+ E G12:I12). An additional 4.6 acres (D 12) of
development not subject to ROGO restriction in Ocean Reef Club may also be developed for a
total impact of 269.5 acres (E B12:I12). A subset of the total impact acres, 35.4 acres (E
1313:I13) is not subject to the NFIP and is included in our cumulative effects. We also estimate
an additional 2.71 acres (E B 15:K15) of associated non-residential development to bean indirect
effect of FEMA's NFIP action. Therefore, we can reasonably anticipate that the NFIP will affect
272.2 acres (269.5+2.71=272.2) of Stock Island tree snail habitat in unincorporated Monroe
County; this accounts for only 2.96 percent (272.2/9,207=0.0296) of the total suitable habitat in
the county.
We have also identified about 436 acres (Q3) of at -risk land in the "other" category. At -risk
lands in the "other" lands category include those lands outside Monroe County's parcel layer not
156
subject to the ROGO program and include a composite of state and federally -owned lands.
Development on these lands is unlikely and would probably consist of recreational use areas
(i.e., trailheads, canoe launches, etc.). Since recreational development in Monroe County is
typically 1.38 percent of the total lands, we estimated that about 6.1 acres (0.0138*436=6.1) of
the "other" lands may be developed. Development on these lands is considered in our
cumulative effects analysis (Table EA-17).
Village gf1slamorada
There are 445 acres (1-3) of Stock Island tree snail habitat in the Village of Islamorada, of which
145 acres (1-4) are on conservation lands. The remaining 300 acres (1-5), located on 779 parcels
(1-7), are at risk of development; there is 1 acre (1-6) not subject to the NFIP. The ROGO
program allocates 28 units (1-9) per year to the Village of Islamorada and the average suitable
habitat on a parcel is 0.4 acre (1-8). Based on the calculations in Table EA-9, the ROGO
program would allow for the development of 140.1 acres (1-12) of habitat, 0.6 acre (1-33) of
which not be subject to the NFIP. We estimate 0.5 acre (1-14) of non-federal impacts outside of
the NFIP to be cumulative effects. We also estimate 9.1 acres (1-15) of additional non-residential
development to be an indirect effect of FEMA's NFIP action. Therefore, we can reasonably
anticipate that the NFIP will directly affect 145 acres (139.5+9.1=145) of Stock Island tree snail
habitat in the Village of Islamorada; this accounts for only 1.57 percent (145/9,207=0.0157) of
the total suitable habitat in the county.
City of Marathon
There are 588 acres (P3) of potential Stock Island tree snail habitat in the City of Marathon, of
which 340 acres (P4) are on conservation lands. The remaining 249 acres (P5), located on 579
parcels (P7), are at risk of development. Twenty-eight (28) acres (P6) fall in areas not subject to
the NFIP. The ROGO program allocates 30 units (P9) per year to the City of Marathon and the
average suitable habitat on a parcel is 0.4 acre (P8). Based on the calculations in Table EA-9,
the ROGO program would allow for the development of 167.4 acres (P 12) of habitat, 18.8 acres
(P13) of which not be subject to the NFIP. We estimate 16.8 acres (P14) of non-federal impacts
outside of the NFIP to be cumulative effects. We also estimate 9.8 acres (P 15) of additional non-
residential development to be an indirect effect of FEMA's NFIP action. Therefore, we can
reasonably anticipate that the NFIP will affect 158.4 acres (148.6+9.8=158.4) of Stock Island
tree snail habitat in the City of Marathon; this accounts for only 1.7 percent (158.4/9,207=0.017)
of the total suitable habitat in the county.
City of Key West
There are 48 acres (N3) of potential Stock Island tree snail habitat in the City of Key West, of
which 5 acres (N4) are on conservation lands. The remaining 43 acres (N5), located on 102
parcels (N7), are at risk of development. Seventeen (17) acres (N6) fall in areas not subject to
the NFIP. The ROGO program allocates 92 units (N9) per year to Key West and the average
suitable habitat on a parcel is 0.4 acre (N8). Based on the calculations in Table EA-9, the ROGO
program would allow for the development of a1143 acres (N12) of at -risk habitat, 17.3 acres
(N13) of which not be subject to the NFIP. We estimate that 25.5 acres (N16) will be subject to
157
NFIP. We estimate 15.5 acres (N14) of non-federal impacts outside of the NFIP that will be
considered in our cumulative effects analysis. We have also identified 29.9 acres (1,196
parcel s*0.025=29.9) of impact associated with non-residential development. Since there is no
remaining at -risk habitat, this development will have no additional habitat impacts on the
affected species. Therefore, we can reasonably anticipate that the NFIP will directly affect 25.
acres (N16) of Stock Island tree snail habitat in Key West; this accounts for only 0.3 percent
(25.5/9,207=0.0277) of the total suitable habitat in the county.
City of Key Colonv Beach
There are 5.5 acres (M3) of potential Stock Island tree snail habitat in the City of Key Colony
Beach, all of which are at -risk and subject to the NFIP. The ROGO program allocates 22 units
(M9) per year to Key Colony Beach and the average suitable habitat on a parcel is 0.1 acre (M8).
Based on the calculations in Table EA-9, the ROGO program would allow for the development
of all 5.5 acres (M12) of at -risk habitat. We have also identified 7.15 acres (286 parcels *
0.025=7.15) of impact associated with non-residential development. Since there is no remaining
at -risk habitat, this development will have no additional habitat impacts on the affected species.
Therefore, we can reasonably anticipate that the NFIP will directly affect 5.5 acres (M16) of
Stock Island tree snail habitat in Key Colony Beach; this accounts for only 0.06 percent
(5.5/9,207=0.00059) of the total suitable habitat in the county.
0 v of Lavton
There is less than an acre (0.1 acre) (03) of Stock Island tree snail habitat in the City of Layton.
This small area falls on one lot (018) which is unprotected and subject to the NFIP. The ROGO
program allocates 3 units (09) per year to Layton and the average suitable habitat on a parcel is
0.1 acre (08). Based on the data in Table EA-9, the ROGO permit allocations allow for the
development of all of the suitable habitat in Layton, which is considered a direct effect of the
NFIP. We have also identified 0.97 acre (39 parcels *0.025=0.097) of impact associated with
non-residential development (015). Since there is no remaining at -risk habitat, this development
will have no additional habitat impacts on the affected species.
Stock Island tree snail summary — habitat loss
Throughout the range of potential Stock Island tree snail habitat in the Keys, we anticipate the
development of no more than 638.7 acres (R12) from 2010 through 2023, considering the current
building permit ROGO program. Of this, 587.4 acres (R16+R15) would be subject to the NFIP.
Therefore, FEMA's implementation of the NFIP would result in the loss of no more than 6.4
percent (587.4/9,207=0.064) of the total Stock Island tree snail habitat in the Keys and we
believe this loss of habitat is not significant.
Habitat fragmentation
As is the case with other species, unregulated development caused damage to Stock Island tree
snail habitat. Development of canal subdivisions and clearing of tropical hardwood hammocks
has fragmented Stock Island tree snail habitat. Despite these losses, a significant amount of
158
habitat is available for Stock Island tree snails in the Florida Keys and the number of Stock
Island tree snail populations has increased over the past 15 years. Although the populations on
private lands are at risk, the species is not habitat -limited. Therefore, we expect the impacts due
to fragmentation to be minimal.
Indirect effects
Indirect effects associated with the proposed action can destroy or remove individual snails from
the population and can adversely affect behavior and reproduction. The use of pesticides on or
near snail habitat can kill snails or result in altered feeding and breeding behavior. Urbanization
within or near snail habitat can promote the establishment of black rats, fire ants, and other snail
predators, resulting in a reduction in population numbers and reproductive potential. Excessive
watering of ornamental plants and lawns can modify snail behavior by bringing snails out of
aestivation during the winter months exposing them to cold temperatures and desiccation.
Collection of snails may increase concurrently with an increasing human population. While we
can reasonably assume that some of these indirect effects will occur, we are unable to determine
what effect they will have on the overall population.
Summary Changes since the previous BOs
In general, the habitat loss and indirect effects identified in this analysis more accurately reflect
the potential 13-year development scenario than estimated in previous BOs. Our current
methodology benefited from advances in GIS data, including updated parcel and habitat maps, a
spreadsheet -based calculation system, and a detailed lot -by -lot review guided by the ROGO
allocation process. The development scenario assumed in previous BOs identified the acres at
risk from the proposed action as 387 acres over 1,479 parcels (Service 2006c). Our current
analysis incorporates the ROGO development restrictions as well as the updated parcel data and
identifies the acres of habitat at risk from the proposed action as 587.4 acres (R16+R15) over
about 1,994 parcels (R18). We believe this is a more accurate estimate based on current data;
however, it is still a worst -case scenario estimate because we cannot adequately account for
increased land conservation that continues to occur in the Keys.
The proposed action could directly result in the loss of about of 587.4 acres (R16+R15) of
potential suitable Stock Island tree snail habitat, most of which is already fragmented. This
represents 6.4 percent (587.4.6/9,207=0.0637) of the total amount of potential suitable habitat
available to this species in Monroe County. Furthermore, the majority of the suitable habitat for
this species in the Keys (70 percent) is protected and county and municipal development
regulations discourage development in remaining quality habitat. The population has expanded
from 5 known populations in 1996 to 27 known populations in 2010.
The Service believes that incidental take of Stock Island tree snails will occur because of the
proposed action. However, based on the current population, we believe this level of take will not
be significant for the species. Furthermore, if FEMA implements the technical assistance
process outlined at the end of this document, biological review of individual parcels will occur
prior to development. This will allow for identification of additional tree snail populations and
allow actions to be implemented, which help avoid and minimize negative effects.
159
Summary -Beneficial, Direct and Indirect Effects
Table EA-16 provides a summary of the effects the proposed action may have on species'
potential suitable habitat in acres. In addition to direct impacts to habitat from development, the
Service identified the following indirect effects from the action: 4 Key deer lost per year to
traffic mortality, 98 new (E 19, EA-8b) free -roaming cats in the range of the Key Largo cotton
mouse and Key Largo woodrat, 721 new (E19, EA- 1lb) free -roaming cats in the range of the
Lower Keys marsh rabbit, and 744 new (E19, EA-14b) free -roaming cats in the range of the
silver rice rat.
CUMULATIVE EFFECTS
Cumulative effects include the effects of future State, local, or private actions that are reasonably
certain to occur in the action area considered in this BO. Future Federal actions that are
unrelated to the proposed action are not considered in this section because they require separate
consultation pursuant to section 7 of the Act.
Actions taken by Monroe County are likely to have the most significant cumulative effects on
the threatened and endangered species considered in this BO. The Monroe County government
controls land use practices that affect threatened and endangered species within areas mapped by
FEMA as Special Flood Hazards Areas. The Monroe County government also controls land use
practices within areas where flood insurance is not available under the NFIP (i.e., within units
designated by CBRA). For the cumulative effects analysis, we have focused on the cumulative
effects of Monroe County's actions on threatened and endangered species within CBRA areas, as
well as on lands owned by the State where NFIP insurance is not applicable. In addition to direct
impacts to habitat from residential development for lands with CBRA units, we also considered
that portion of impacts from associated non-residential development (commercial, public
services, recreation, etc.) in CBRA units in our cumulative impacts, calculated at 0.25 acre per
ROGO unit. Table EA-17 identifies the area of potential suitable habitat for threatened and
endangered species in the Keys that could be affected by future actions not subject to the NFIP.
We described the calculation methods and provided details on the cumulative effects on each
species in the Effects of the Action, above.
Table EA-17 provides a summary of the cumulative effects on species' potential suitable habitat
in acres. In addition to cumulative effects to habitat, the Service identified other potential
cumulative effects on species: 41 new (E22, EA-8b) free -roaming cats in the range of the Key
Largo cotton mouse and Key Largo woodrat, 66 new (E22, EA- 1lb) free -roaming cats in the
range of the Lower Keys marsh rabbit, and 43 new (E22, EA-14b) free -roaming cats in the range
of the silver rice rat.
The habitat loss outlined in the Table EA-17 represents a small proportion of potential suitable
habitat for these species and for silver rice rat critical habitat; the Service believes the impact of
this loss will not be significant in and of itself. The additional predation pressure on the silver
rice rat is not likely to adversely affect the species; however, we are concerned that the additional
predation pressure from free -roaming cats may affect the Key Largo cotton mouse, Key Largo
160
woodrat and Lower Keys marsh rabbit populations. The technical assistance review process
outlined in the RPA at the end of this BO should minimize these effects on listed species.
In addition to the above cumulative effects, the Service is aware of an electrical substation
proposed by the Florida Keys Electric Cooperative that would impact the Key Largo woodrat
Key Largo cotton mouse, Schaus swallowtail butterfly and eastern indigo snake. An HCP is now
under development for this project.
CONCLUSION
After reviewing the status of the nine threatened and endangered species, the environmental
baseline, the direct, indirect, and cumulative effects of the proposed action, it is the Service's
biological opinion that over the 13-year period of assessment (through 2023), that FEMA's
continued issuance of flood insurance policies is likely to have the following effects on
threatened and endangered species in the Florida Keys:
Eastern indigo snake: We believe the continuing administration of the NFIP in the Keys
is likely to result in incidental take, but will not jeopardize the continued existence of the
threatened eastern indigo snake.
Key deer: We believe the continuing administration of the NFIP in the Keys is likely to
result in incidental take, but will not jeopardize the continued existence of the endangered Key
deer.
Key Largo cotton mouse: We believe the continuing administration of the NFIP in the
Keys will jeopardize the continued existence of the endangered Key Largo cotton mouse.
Key Largo woodrat: We believe the continuing administration of the NFIP in the Keys
will jeopardize the continued existence of the endangered Key Largo woodrat.
Key tree -cactus: We believe the continuing administration of the NFIP in the Keys will
jeopardize the continued existence of the endangered Key tree -cactus.
Lower Keys marsh rabbit: We believe the continuing administration of the NFIP in the
Keys will jeopardize the continued existence of the endangered Lower Keys marsh rabbit.
Schaus swallowtail butterfly: We believe the continuing administration of the NFIP in
the Keys is likely to result in incidental take, but will not jeopardize the continued existence of
the endangered Schaus swallowtail butterfly.
Silver rice rat: We believe the continuing administration of the NFIP in the Keys is
likely to result in incidental take, but will not jeopardize the continued existence of the
endangered silver rice rat.
Silver rice rat critical habitat: We believe the continuing administration of the NFIP in
the Keys is likely to adversely affect critical habitat, but will not appreciably diminish the value
161
of constituent elements essential to the species' conservation. It will not result in the adverse
modification of silver rice rat critical habitat.
Stock Island tree snail: We believe the continuing administration of the NFIP in the
Keys is likely to result in incidental take, but will not jeopardize the continued existence of the
endangered Stock Island tree snail.
Table 17: Conclusions by Species
Species
Jeopardy
Adverse Modification
Eastern indigo snake
NO
NOT APPLICABLE
Kev deer
NO
NOT APPLICABLE
Key Largo cotton mouse
YES
NOT APPLICABLE
Key Largo woodrat
YES
NOT APPLICABLE
Kev tree -cactus
YES
NOT APPLICABLE
LoNver Kevs marsh rabbit
YES
NOT APPLICABLE
Schaus s-,vallovaail butterfly
NO
NOT APPLICABLE
Silver rice rat
NO
NO
Stock Island tree snail
NO
NOT APPLICABLE
162
Table 18: Summary of Direct and Cumulative Impacts (Acres of Habitat Impacted)
13-Year period of review (through 2023)
Estimated
Total
FEAT
Estimated
Percent
Species
Acres in
Acreage
Percent
Action
Cumulative
Total Impact
Habitat
Species
Consultation
Conserved
Protected
Impact
Impact (acres)
impacted
Status
Area(acres)(acres)
Eastern
Indigo
65,552
42,012
64.1%
1,789
645
2,433
3.7%
Declining
Snake
Stable or
Key deer
30,482
20,226
66.4%
291
81
372
1.2%
Increasing
Key Largo
cotton
4,191
2,928
699%
218
35
252
6.0%
Stable
mouse
Key Largo
4,191
2,928
699%
218
35
252
6.0%
Declining
woodrat
Key tree-
9,207
6,449
70.0%
587
70
658
7.1%
Uncertain
cactus
Lower Keys
marsh
19,472
13,714
70.4%
84
37
120
0.6%
Declining
rabbit
Schaus
5,002
3,240
64.8%
372
43
415
8.3%
Stable
swallowtail
Silver rice
21,748
14,256
65.6%
172
75
247
1.1%
Stable
rat
Critical
Habitat -
8,532
6,750
79.1%
37
40
77
09%
---
Silver rice
rat
Stock island
9,207
6,449
70.0%
587
70
658
7.1%
Uncertain
tree snail
Table 19: Summary of Indirect Effects - 13-Year period of review (through 2023)
Type
Species
Species
FEMA
Cumulative
Estimated
Percent of
Population
Action
Total
Population
Number of Key Deer deaths
Traffic
Kev deer
650
4 per year
--
52
0.08%
Number of additional Cats — life of permit
Predators
Key Largo
(Cats
cotton mouse
17,000
98
41
139
--
Predators
Kev Largo
<200
98
41
139
--
(Cats)
woodrat
Predators
Lower Kevs
500
721
66
787
--
(Cats)
marsh rabbit
Predators
Silver rice rat
5,000 — 20,000
744
43
787
--
(Cats)
163
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 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 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 development
expected to occur over a 13-year period of implementation of the NFIP. Therefore, we base this
RPA, on both habitat loss and indirect effects from development. The indirect effects from
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.
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 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
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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 (referenced in RPA
paragraph 1) within 120 days of acceptance of this BO by the Court. In the event that the
real estate list is updated by the Service, the new list is 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 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 building permits without further concerns for threatened and
endangered species (or their critical habitat).
4. Any issuance of building and/or clearing (development) permits for all activities that will
remove native vegetation will require further consultation for the real estate parcels
within the Species Focus Area Maps for the federally listed species for which incidental
take was provided in this BO. Specifically, participating communities in Monroe County
will forward weekly to the Service, those applications proposing clearing of lot(s) or new
development on vacant parcels and development on parcels with a stricture that will: 1)
expand the footprint of the stricture; 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
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 county's or municipality's building and/or clearing
permit. 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 NTFIP participating communities, and FEMA to follow
that may results in Service concurrence determinations through acceptance of the
key's requirements. An applicant signed and community co -signed copy of the
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acceptance form will be maintained in the building permit file. FEMA will
provide a yearly report of how many 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 additional
action 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 county's or municipality's
building and/or clearing permit. Participating communities and FEMA will work
with the applicant and the Service to ensure compliance with either section 7 or
section 10 of the Act and that the amount 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 permits were issued by NFIP participating
jurisdictions and the amount of incidental take exempted under the incidental take
provision in this BO.
5. Pursuant to 44 CFR 60.3(a)(2), FEMA will require participating communities to establish
written procedures within 150 days of acceptance of this BO by the Court for referring
floodplain development building and/or clearing permit applicants to the Service for
review as outlined in RPA paragraph 4. FEMA will require participating communities to
incorporate the Service's conditions of any "not likely to adversely affect" concurrence or
any section 7 or section 10 incidental take statement(s) and associated terms and
conditions or Incidental Take Permit conditions into the participating community's
building and/or clearing permit.
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 building and/or clearing permit. In the event of non-
compliance with 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 permit
applicants seeking a clearing permit, to build a new stricture, or expand an existing
stricture. This brochure will describe how to protect threatened and endangered species
by keeping pets indoors. FEMA will provide a yearly report of how many permits were
issued by NFIP participating communities for each of the buffer zones by species
affected in the Special Flood hazard Area.
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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 constriction or
other development in participating communities in Monroe County. FEMA will require
the communities to maintain either the Section 10(a)(1)(B) permit or the completed
section 7 consultation in the administrative record for the floodplain clearing and/or
development permit 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 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 this
RPA as a substantive program deficiency or violation under 44 CFR 60.3.
8. Within 15 days of determining non-compliance with this 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 clearing and/or
building 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 development or constriction. 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 constriction of
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an insurable stricture 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 stricture 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 permit for any building or other floodplain development if the
participating community issued a 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 this 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 permit applicants a brochure
or similar written material about the 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.
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RPA considered, but rejected
The Service has considered but is not requiring the option of having FEMA require the
participating communities to revise their tier maps to place habitat areas in the non -development
or limited development tier (Tier I and SPAS in the current system). The Service is not including
such a requirement in the RPA for three key reasons:
• 1) It does not appear that FEMA has the legal authority to impose such a condition on
community eligibility for flood insurance. Because FEMA does not have such authority,
requiring the communities to revise their tier systems does not meet the criteria for an
RPA as set forth in 50 CFR 402.02.
2) If FEMA does have the legal authority to require communities to revise tier maps
based on species habitat, the Service is concerned that such an action raises constitutional
concerns. This action would likely expose the participating communities, FEMA, and the
Service to litigation by property owners or other stakeholders who wish to challenge the
inclusion or omission of particular parcels from particular tier categories. We are
concerned that this potential for further litigation resulting from the mapping would be a
significant drain on Service staff resources and would detract from other, more
biologically important conservation related actions of the Service. We are unaware of
any other example of a situation where a BO issued by a Service office resulted in such a
direct and far-reaching influence on local government permitting decisions.
• 3) If FEMA has the requisite legal authority to compel the communities to modify their
tier maps and the associated constitutional concerns could be resolved appropriately, we
would still not choose to include a requirement for tier map revisions as part of this RPA.
This is because we are confident that the other recommended components will be
sufficient for FEMA to meet its obligations to avoid jeopardy and to conserve species.
The Service believes the RPA in this BO will avoid the likelihood of jeopardy to the species and
adverse modification of designated critical habitat (50 CFR 402.14(h)(3) if implemented by the
action agency. Without the process implemented by this RPA, the Service would not have the
opportunity to review all development projects for potential impacts to listed species. Some
development projects requiring permits from the Corps under Section 404 of the Clean Water
Act may come to the Service for review, while other projects do not require 404 or other Federal
permits. Similarly, a permit under Section 10 of the Act would be required for private
individuals whose proposed development may take listed animal species, but in many cases, the
developers and the Service are not necessarily aware of the exact locations of species within
habitat that appears suitable until site -specific reviews occur. Therefore, many potential
applicants would not necessarily approach the Service for incidental take authorization under the
Act absent this process. This RPA results in the Service working directly with each applicant
and participating communities in Monroe County to analyze direct, indirect, and cumulative
effects of the development (including land clearing) and to provide measures to avoid, minimize,
or compensate for impacts to listed species.
The implementation of the above RPA by FEMA may still result in incidental take of listed
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species, including those species where we identified a level of incidental take in the original
proposed action. However, we believe that the level of take through implementation of this RPA
will not jeopardize the survival and recovery of the nine species evaluated in this BO where
adverse effects from habitat loss and indirect effects from development have been identified.
INCIDENTAL TAKE STATEMENT
Section 9 of the Act and Federal regulation pursuant to Section 4(d) of the Act prohibit the take
of endangered and threatened species without special exemption. Take is defined as to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any
such conduct. Harm is further defined by the Service to include significant habitat modification
or degradation that results in death or injury to listed species by significantly impairing essential
behavioral patterns, including breeding, feeding, or sheltering. Harass is defined by the Service
as intentional or negligent actions that create the likelihood of injury to listed species to such an
extent as to significantly disrupt normal behavior patterns which include, but are not limited to,
breeding, feeding or sheltering. Incidental take is defined as take that is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4)
and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is
not considered to be prohibited taking under the Act provided that such taking is in compliance
with the terms and conditions of this Incidental Take Statement.
The measures described in the RPA are non -discretionary, and must be undertaken by FEMA so
that they become binding conditions of any grant or permit issued to the participating
communities, as appropriate, for the exemption in section 7(o)(2) to apply. FEMA has a
continuing duty to regulate the activity covered by this incidental take statement. If FEMA (1)
fails to assume and implement the reasonable and prudent alternatives or (2) fails to require the
participating communities to adhere to the reasonable and prudent alternatives through
enforceable terms that are added by the participating communities to the permit or grant
document, the protective coverage of section 7(o)(2) may lapse. In order to monitor the impact
of incidental take, FEMA must report the progress of the action and its impact on the species to
the Service as specified in the incidental take statement [50 CFR 402.14(l) (3)].
Sections 7(b)(4) and 7(o)(2) of the Act generally do not apply to listed plant species. However,
limited protection of listed plants from take is provided to the extent that the Act prohibits the
removal and reduction to possession of Federally listed endangered plants or the malicious
damage of such plants on areas under Federal jurisdiction, or the destruction of endangered
plants on non -Federal areas in violation of State law or regulation or in the course of any
violation of a State criminal trespass law.
AMOUNT OR EXTENT OF TAKE ANTICIPATED
The Service anticipates incidental take in the form of harm and harassment of the threatened
eastern indigo snake, endangered Key deer, endangered Schaus swallowtail butterfly, threatened
Stock Island tree snail, endangered silver rice rat, endangered Key Largo woodrat, endangered
Key Largo cotton mouse, endangered Keys tree cactus, and endangered Lower Keys marsh
rabbit.
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Incidental take of individuals of a species may be difficult to enumerate when it is an indirect
effect of the Federal action and occurs later in time. Incidental take may also be difficult to
enumerate in terms of numbers of animals when a species is short lived, small in size, cryptic in
its habits, or inhabits areas that make their detection difficult. This is the case for the species
considered in this opinion with the exception of the Key deer. In cases where the actual number
of a species incidentally taken will be difficult to detect (i.e., eastern indigo snake, Schaus
swallowtail butterfly, Stock Island tree snail, silver rice rat, Key Largo woodrat, Key Largo
cotton mouse, Keys tree cactus, and Lower Keys marsh rabbit), the Service will use acres of
habitat that may be affected by the proposed Federal action as an ecological surrogate instead of
a number.
For the Service to substitute a surrogate for actual numbers, a clear determination must be made
that: (1) no such numerical value could be practically obtained and (2) that the use of ecological
conditions (habitat) as a surrogate for defining incidental take is linked to the take of the
protected species (The applicable criteria were spelled out by the Court of Appeals and the
District Court in the Miccosukee Tribe of Indians case, Case No. 05-23045 [S.D. Fla]).
To evaluate if a numerical value could be practically obtained, the Service examined the
following: (1) availability and quality of the actual or estimated population data, (2) the ability to
measure incidental take, and (3) the ability to determine the extent of incidental take attributed to
the Federal action as opposed to other factors.
Availabili,Land ynality of the actual or estimated population data:
Kev deer: The last official Key deer population estimate was in 1975 (Silvy 1975). Population
estimates in succeeding years were based on observational road surveys of Key deer in
subdivisions, spotlight nighttime surveys, and annual traffic mortality data. The Service has
been collecting traffic mortality data on a consistent basis since 1996 (Morkill, personal
communication, 2010). The observational road surveys and annual traffic mortality do not
provide an estimate of the actual number of deer, but instead provide data on observational
trends in habitat use, species presence, and an assessment of traffic risk factors (Lopez 2001;
Lopez et al. 2004a). For example, the number of car -deer crashes are related to road densities,
traffic volumes, and area specific habitat parameters. Given the routine monitoring of Key deer
traffic mortality data, and traffic volume data that can be related indirectly to the Federal action,
the Service will enumerate incidental take in terms of individuals for this species.
Eastern indigo snake: The indigo snake is suspected to occur in very low numbers in the Keys
and, according to Lazell (1989), the remote, isolated, and possibly distinct Lower Keys
populations have not been systematically surveyed. The most recent observation of an eastern
indigo snake occurred on Little Knockemdown Key in 2009. Photo verification of the individual
was provided to the NKDR via e-mail (Service 2010). The previous verified observation was in
North Key Largo in 1998 (Duquesnel 1998). The eastern indigo snake is not typically identified
using standard snake survey methods such as drift fences (Enge 1997). In 2003, Smith and Dyer
conducted a study to test the efficiency and applicability of three commonly used herpetological
survey techniques (drift -fence arrays, road cruising, and burrow camera surveys). None of these
methods proved effective for surveying eastern indigo snakes. Using a variety of survey
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techniques, Schmidt et al. (2008) conducted a herpetological inventory of Big Pine Key and No
Name Key in 2006 and 2007. Although documenting 27 species, the researchers did not observe
the eastern indigo snake. No other recent indigo surveys have been conducted in the Keys.
Accordingly, there is no robust or reliable data to determine individual numbers of eastern indigo
snakes in the action area or an estimate of the snake population trends.
Kev Largo woodrat and cotton mouse: The Key Largo woodrat and Key Largo cotton mouse are
small nocturnal species with cryptic foraging habits making a valid estimate of actual numbers
impractical. Sporadic efforts to monitor these species began in 1970 (Frank et al. 1997). Long
intervals (5 to 10+ years) between monitoring events and the use of various study designs and
estimation techniques make Key largo woodrat and cotton mouse population trends difficult to
interpret and unreliable (Barbour and Humphrey 1982; Humphrey 1988; McCleery 2003; Potts et
al. 2007; Frank et al. 1997; Florida Fish and Wildlife Conservation Commission [FWC] 2005;
McCleery et al. 2006b; and Winchester 2007).
• Key Largo woodrat: Recent Key Largo woodrat surveys suggest a declining population that is
currently at very low densities (FWC 2005; McCleery et al. 2006b; Winchester 2007). The most
recent and most intensive trapping study to date conducted by McCleery et al. (2006b) provided
a 2002 population estimate of 106 individuals with a range between 30 and 182 individuals.
This population estimate was based on model projections from trapping conducted over 60
sampling grids that captured only 16 individuals, 3 of which were recaptures. McCleery et.al.
(2006b) further discuss that there is no appropriate estimate of population size to more precisely
assess the severity of the decline, although population trends can be shown using current capture -
recapture trapping studies.
McCleery et al. (2006b) conducted a companion survey over the same sampling grids in 2004
and estimated a population of 40 individuals with a range between 5 and 104 individuals. This
population estimate was based on the capture of only 5 individuals. The study estimated 0.019
individuals per acre with a range between 0.0024 to 0.05 individuals per acre. We note that the
authors also provided population estimates that are specific to hammock ages with young
hammocks (those hammocks disturbed after 1971) showing much higher woodrat densities, an
average of 1.6 individuals per acre in 2002, versus the average woodrat density across all age
hammocks reported for the same period (0.051 individuals per acre). A similar variability was
shown for the 2004 data, with young hammocks having an average density of 0.49 individuals
per acre versus an average density of 0.019 individual per acre across all hammocks. Given the
variability in this data, we believe this information has limited utility for estimating the number
individuals for a given area.
• Key Largo cotton mouse: Density estimates for this species result from disparate survey
methods and locations, and demonstrate no clear population trend. Researchers have reported a
range from 6.2 cotton mice per hectare (15.3 per acre) (Frank et al. 1997) to 21.2 cotton mice per
hectare (52.4 per acre) (Humphrey 1988). The most recent population estimate (2007) was
17,000 individuals with an increasing trend from April to December (Castleberry et al. 2008).
This study is very similar to the McCleery et al. (2006b) study. It examines capture -recapture
trap data over 34 grids with three primary capture periods and four secondary periods, evaluating
557 unique individual captures. Based on preliminary data from 2007, the researchers have
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provided a population estimate ranging from 9,350 individuals (plus or minus 3,138, spring
sample) to 17,127 individuals (plus or minus 1,849, winter sample). We believe variability in
this data, as was identified for the woodrat, limit the utility of this information for estimating the
number individuals per area.
Kev tree -cactus: The "take" of plants on private property is not a violation of the Act (unless
State law also prohibits take). Therefore, authorization to "take" plants on private property is not
required under section 10(a)(1)(B) nor exempted under section 7. However, Federal agencies are
required under section 7(a)(2) to make sure that their actions do not jeopardize the continued
existence of listed plants.
The Key tree -cactus has probably always been rare in the Keys. The primary cause for this rarity
seems to be its rather restrictive habitat requirements. The preferred habitat occurs primarily in
naturally disturbed patches of hammock (Avery [no date], Small 1917, 1921). It grows only on
lightly shaded, upland sites on a limerock substrate. This habitat is not common on the Keys,
and, furthermore, is transient in nature. The location and number of these patches changes with
time as disturbed areas re -grow and new sites are disturbed (e.g., from tropical weather events).
As of 2009, the known distribution of this species is restricted to seven populations on four
islands of the Florida Keys (Big Pine Key, Long Key, Lower Matecumbe Key, and Upper
Matecumbe Key) (Adams and Lima 1994; Service 1999; Maschinski 2009a; Florida Natural
Areas Inventory 2009). Six of seven populations are on lands protected through acquisition or
agreements (Maschinski et al. 2009). One is located on private, developable property currently
used for aquaculture. Long distance dispersal and establishment of new tree -cactus populations
is dependent upon the production of seed. However, reproduction within a single population (a
clump) is mostly, if not entirely, vegetative (asexual). Seed dispersal by birds (Cardinalis
cardinalis, for example) is indicated for this species (Austin 1980). Given the Key tree -cactus'
preference for naturally disturbed patches of hammock and the fact that these patches are subject
to change as a result of natural succession and disturbance events, predicting where a new
population may be found is problematic.
Lower Keys marsh rabbit: Researchers have not formally surveyed the range -wide status and
distribution of the marsh rabbit since the mid- 1990s. Three methods have been used traditionally
to measure rabbit density: spotlight counts, live trapping, and fecal -pellet counting. Spotlight
surveys give only indices of population numbers, not counts, and become inaccurate when
vegetation prevents a clear view of the rabbits. Pellet counting is biased by defecation rate,
pellet -decay rate, and clumping of deposits, but it can be an efficient and fairly accurate method
when used correctly (Forys and Humphrey 1994). Since the mid-1990s, pellet counting has been
used, although not systematically, to establish patch occupancy in the Keys. Furthermore, pellet
counts have not been used consistently in the Keys to count actual numbers of individuals.
However, they have been used to provide wide-ranging population estimates and general
population trends.
,Schaus swallowtail butterfly: No detailed status surveys have been conducted for the Schaus
swallowtail since 2003. The Schaus swallowtail butterfly is restricted to areas where its primary
food plant, torchwood, grows abundantly (Service 1982b). This habitat is limited to coastal
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southeast Florida and the Upper Keys, in mature tropical hardwood hammocks. Schaus
swallowtail butterflies have a single annual flight season, primarily in May and June, where
adults are active; most sightings have been recorded between mid -April and mid -July (FWS
1982). There is only one generation of Schaus swallowtail butterfly per year and adults are
short-lived (Emmel 1985). Several methods are employed to survey for this species. Time
intensive surveys that rely on transect and mark -recapture surveys are used to provide estimates
of population densities. More common and less labor intensive are surveys that rely on presence
or absence based on visual observations of the adult butterflies in flight in suitable or historical
habitat. Transect surveys are conducted to address specific research needs and density estimates
from these surveys are based on site specific assessments. The site -specific estimates are applied
to the study area and are generally referenced as a number of individuals per acre. One
important factor limiting the value of transect survey data is the timing of the survey.
Specifically, the emergence of adults is highly dependent on rain, and timing is often of major
significance in the accuracy of survey results in giving a reliable picture of the number of
individuals (Salvato, personal communication, 2009).
,Silver rice rat: The rice rat population is not routinely monitored and survey efforts have been
sporadic. The most recent rice rat surveys were conducted in 2004 and 2005 (Perry 2006, Perry
et.al. 2005). Prior surveys were conducted by Mitchell (2000), Forys et al. (1996), and Goodyear
(1992). The silver rice rat is restricted to a narrow range of wetland habitat types and
populations are widely distributed and occur at extremely low densities (Forys et al. 1996).
Silver rice rats are nocturnal and range extensively (Spitzer 1983; Mitchell 2000). Spitzer (1983)
estimated the home range of a male silver rice rat on Summerland Key to be 56.3 acres. This
animal regularly traveled long distances during a single activity period, and traveled over 0.6
mile in a single night. The most common survey method for this species is the capture -mark -
recapture trap method referenced for the Key Largo woodrat and Key Largo cotton mouse. The
challenges of this survey method to estimate densities of this species are more pronounced for
the silver rice rats because of its large home range and inaccessibility of its preferred habitat
(e.g., areas subject to daily tidal inundation).
,Stocklsland tree snail: Few data are available on Stock Island tree snail abundance or
population trends since the publication of the South Florida Multi -Species Recovery Plan
(Service 1999). Rigorous estimates are not known for any population. Their status is currently
assessed by the number of discrete populations that are known. They are arboreal except when
they move to the forest floor for nesting or traveling and are active mainly during the wet season.
The Service (2004a) recommended surveys for this species be conducted during a rain event in
either August and September or December and January. Surveys focus specifically on presence
or absence and are not reliable for estimating densities.
In summary, as we discussed previously in the Status of the Species and summarized above for
individual species, reliable population estimates are not available for the nine species considered
in this opinion. Most, but not all, of the listed species in the Keys have been studied extensively.
However, differences in survey methodologies, irregular survey frequencies, and the fact that all
suitable habitats for these species have not been surveyed contribute to the lack of dependable
population estimates.
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The ability to »mea.vire incidental take and iMether it is attributable to the Federal action:
The proposed Federal action is the issuance of flood insurance policies by FEMA for new
residences, large additions, and businesses in the Florida Keys. As described earlier, direct
effects include potential impacts to listed species habitat from constriction of insured strictures.
Indirect effects include increases in traffic, increases in free roaming cats, and loss and
fragmentation of habitat.
Indirect effects, although reasonably certain to occur, may occur later than direct effects and over
time. For example, although a home is constricted as a result of receiving flood insurance, it
may be several years before the family living there decides to buy a cat and let it roam outdoors
where it could potentially prey upon a Key Largo cotton mouse. In addition, if the cat was not
neutered or spayed, it could breed with other cats, increasing the population of feral cats.
Enumerating the incidental take resulting from this indirect effect in this example is further
exacerbated by the fact that the cat's potential prey, the cotton mouse, is small, cryptic, and
recovery of the carcass would be unlikely.
For each species in this BO, we evaluated a number of threats to the species in addition to the
effects of the Federal action. For example, we evaluated sea level rise and habitat succession;
hurricanes, droughts, loss and fragmentation of habitat, predation, exotic species, chemical
contaminants in the environment, and mortality from existing traffic. Since threats not
associated with the Federal action can also result in the loss of listed species (predation, habitat
changes, competition from exotic species, road mortality from non-residents, and hurricane
caused contamination), we believe it is difficult to make a distinction between incidental take of
a listed species resulting from the proposed action and the loss that may be caused by these other,
non -project generated threats. For example, habitat fragmentation can occur from storm events
as well as from new development and both may cause loss of individuals to the species.
Similarly, a distinction between predation by existing raccoons or feral cats and predation from
free roaming house cats associated with new development resulting from the Federal action is
difficult to discern.
Conclusion: As discussed previously, for the Service to substitute a surrogate for actual
numbers, a clear determination must be made that (1) no such numerical value could be
practically obtained and (2) that the use of ecological conditions (habitat) as a surrogate for
defining incidental take is linked to the take of the protected species. In the previous discussion,
we have demonstrated that no numerical value could be practically obtained because of the: (1)
lack of reliable estimates of population data, (2) difficulty in being able to measure incidental
take of individuals, and (3) difficulty in determining the extent that incidental take is attributed to
the Federal action as opposed to other environmental factors.
We believe a surrogate for actual species numbers is appropriate and are using acres of habitat
loss to detect and measure take. We are using habitat loss because we believe there is a
reasonable nexus between the indirect effects of the action and adverse effects to the species
discussed in the Status of the Species and Effects of the Action sections of this BO.
Furthermore, our species focus area maps and the habitat -mapping units (Appendix 1) will
facilitate tracking of incidental take. For example, the silver rice rat's critical habitat is
175
determined by the presence of constituent elements. The constituent elements include mangrove
swamp, salt marsh, and freshwater marsh. Our habitat -mapping units used to assess project
related effects to the silver rice rat included mangrove swamp, saltwater marsh, and freshwater
marsh as well as additional mapping units that may contain these habitat communities. As
Appendix 1 demonstrates, the habitat types in our effects assessment directly match the preferred
species' habitat types, or include composites of these habitat communities.
The Service believes that the level of take for the species assessed in this BO can be anticipated
by habitat loss within each species' range (Table 18) and take will be monitored by summing
habitat lost from NFIP projects. The Service has also identified incidental take for the Key deer
in the form of increased road mortality that may result from an increase in traffic (Table 19).
The Service anticipates an increase in road mortality of 4 deer per year over the 13-year review
period and take will be monitored as a component of the annual road mortality totals for this
species.
EFFECT OF THE TAKE
In the accompanying biological opinion, the Service determined that this level of expected take
is not likely to result in jeopardy to the species, or destruction or adverse modification of critical
habitat when the RPA is carried out.
REASONABLE AND PRUDENT MEASURES
The Service did not identify an additional measure to minimize incidental take other than those
in the project description and the reasonable and prudent alternative.
TERMS AND CONDITIONS
Since there are no reasonable and prudent measures, there are no terms and conditions.
Upon locating a dead, injured, or sick individual of an endangered or threatened species, initial
notification must be made to the Fish and Wildlife Service Law Enforcement Office in Miami,
Florida at (305-526-2610) and the NKDR, 28950 Watson Boulevard, Big Pine Key, Florida
33043; (305-872-2239). Additional notification must be made to the Fish and Wildlife Service
Ecological Services Field Office at Big Pine Key (305-872-2753). Secondary notification should
be made to the Florida Fish and Wildlife Conservation Commission; South Region, 3900 Drane
Field Road, Lakeland, Florida, 33811-1299; (1-800-282-8002). Care should be taken in handling
sick or injured individuals and in the preservation of specimens in the best possible state for later
analysis of cause of death or injury.
The reasonable and prudent alternatives are designed to eliminate jeopardy and to minimize the
impact of incidental take that might otherwise result from the reasonable and prudent alternatives
and proposed action. The Service believes that take in the form of habitat loss and Key deer
impacts from traffic as described in the above analysis will be incidental. If, during the course of
the action, this level of incidental take is exceeded, such incidental take represents new
information requiring reinitiation of consultation and review of the reasonable and prudent
176
measures provided. FEMA must immediately provide an explanation of the causes of the taking
and review with the Service the need for possible modification of the proposed action or the
reasonable and prudent alternatives.
CONSERVATION RECOMMENDATIONS
Education and outreach can guide participating communities to implement responsible floodplain
management and increase awareness of the NFIP activities regarding protection of listed species
and critical habitat. FEMA proposes education and outreach activities to participating
communities through the following steps:
Participate with local officials from the participating communities in Monroe County and
the Service in community meetings to explain to property owners the responsibilities of
all parties for complying with the Act while implementing the minimum requirements of
the NFIP.
2. Attend and discuss at regional (such as the Florida Floodplain Managers Association) and
national floodplain managers conferences (Association of State Floodplain Managers) the
responsibilities of all parties for complying with the Act while implementing the
minimum requirements of the NFIP.
Incorporate materials on the Act in a programmatic way in NFIP-related outreach
materials, such as on FEMA's website and Watermark newsletter that goes out to various
NFIP constituents.
4. Develop a floodplain management bulletin similar to the NFIP Floodplain Management
Bulletins that provide guidance to communities on the provisions of 44 CFR 60.3(a)(2)
requiring communities to ensure that applicants have obtained all other Federal and State
permits before issuing a floodplain development permit.
5. The Service recommends that FEMA assist with any monitoring programs for candidate
species in the Keys. This would include any on -going monitoring of existing candidate
populations as well as assessment of hurricane -related impacts to candidate species.
Community Rating System
The Service recognizes that communities in Monroe County are not currently eligible to receive
Community Rating System (CRS) credits associated with the NFIP to benefit communities that
have implemented conservation planning under Section 10(a)(1)(B) of the Act. FEMA provides
credit in the CRS for protection of areas that provide natural and beneficial functions, such as
wetlands, riparian areas, sensitive areas and habitat for rare or endangered species. Since 2002,
FEMA has implemented a two -tiered system to encourage communities to develop habitat
conservation plans that protect rare, threatened, or endangered species. Communities
participating in CRS receive credit if they have adopted and implemented a habitat conservation
plan, even if the plan has not yet been submitted to or received approval from the Service.
Additional credit is awarded to communities that have a Service approved habitat conservation
177
plan under Section 10(a)(1)(B) of the Act. The two -tiered system encourages communities to
develop community -wide, multi -species conservation plans and rewards efforts by providing
credit prior to Service approval.
In order for the Service to be kept informed of actions minimizing or avoiding adverse effects or
benefiting listed species or their habitats, the Service requests notification from FEMA of the
conservation recommendations carried out.
REINITIATION NOTICE
This concludes formal consultation on the action of the FEMA's administration of the NFIP in
the Florida Keys. As provided in 50 CFR §402.16, reinitiation of formal consultation is required
where discretionary FEMA involvement or control over the action has been retained (or is
authorized by law) and if:
(1) the amount or extent of incidental take is exceeded;
(2) new information reveals effects of the FEMA action that may affect listed species or
critical habitat in a manner or to an extent not considered in this opinion;
(3) the FEMA action is subsequently modified in a manner that causes an effect to the listed
species or critical habitat not considered in this opinion;
(4) a new species is listed or critical habitat designated that may be affected by the action; or
(5) Monroe County or municipalities are in non-compliance with this BO and FEMA fails to
initiate enforcement actions as described in the reasonable and prudent alternative.
In instances where the amount or extent of incidental take is exceeded, any operations causing
such take must cease pending reinitiation of consultation.
Incidental take would be exceeded when the take exceeds that identified in Table 18 and 19
above, which is exempted from the prohibitions of Section 9 by this BO. The Service
appreciates the cooperation of FEMA during this consultation. We would like to continue
working with you and your staff regarding this implementation of the NFIP in Monroe County,
Florida. For further coordination, please contact Paul Souza, Field Supervisor, for our South
178
Florida Office at 772-562-3909 extension 285 or Patrick Leonard, Assistant Regional Director
for Ecological Services, Atlanta, GA at 404-679-7085.
Sincerely,
Cynthia K. Dohner
fly Regional Director
cc: Regional Section 7 Coordinator, FWS, Atlanta, Georgia
Field Supervisor, FWS, Vero Beach, Florida
Director, FWS
179
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Appendix 1
Habitat mapping units referenced in Monroe County's 2009 habitat classification maps in the
Florida Keys used by federally listed threatened and endangered species evaluated in this BO.
Species Name
Range
Acres of
Habitat Description
Habitat
Hammock, pinelaad, exotics, scrub
mangrove, freshwater Nvetland, salt
Eastern indigo snake
Throughout the Florida Kevs
65,552
marsh, buttonwood, mangrove, beach
berm, exotic, and undeveloped land as
identified in Monroe County's 2009
habitat classification maps.
Pinelaads and hammock, as Nvell as
Kev deer
Occupies 20 to 25 levs from Ohio Kev_
30,482
all other habitat types identified in
south to Saddle Hill Kev_
Monroe Countv's 2009 habitat
classification maps.
4,191
Hammock and undeveloped land as
Kev_ Largo cotton mouse
Throughout Key Largo
identified in Monroe County's 2009
habitat classification maps.
4,191
Hammock and undeveloped land as
Kev_ Largo woodrat
Throughout Key Largo.
identified in Monroe County's 2009
habitat classification maps.
Hammock and beach berm as
Kev_ tree -cactus
Throughout the Florida Kev_ s
9,207
identified in Monroe Countv's 2009
habitat classification maps.
Annette, Big Munson, Big Pine, Boca
Pineland, scrub mangrove, freshwater
LoN er Kev s (=marsh)
Chica, East Rockland, Geiger, Mayo, No
19,472
«etland, salt marsh, buttonwood, and
rabbit
Name, Porpoise, Saddlebunch, Saddlehill,
beach berm as identified in Monroe
and Sugarloaf
Countv's 2009 habitat classification
maps.
Hammock, undeveloped land, and
Schaus' swalloNvtail
Elliot Key south to, and including, Lower
5,002
beach berm as identified in Monroe
butterflv
Matecumbe Kev
Countv's 2009 habitat classification
maps.
Hammock, pineland, scrub mangrove,
Little Pule, Big Pule, HoNve, Water,
freshwater wetland, salt marsh,
Silver rice rat
Middle Torch, Big Torch, Summerland,
21,748
buttonwood, mangrove, and beach
Raccoon, Johnston, Cudjoe, Upper
berm as identified in Monroe
Sugarloaf, and Saddlebunch.
Countv's 2009 habitat classification
maps.
9,207
Hammock and beach berm as
Stock Island tree snail
Throughout the Florida Kev_ s
identified in Monroe Countv's 2009
habitat classification maps.
201
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Monroe County Habitat Classifications
1) Developed Land: Comprised of areas of intensive use with much of the land covered by
strictures. Examples are dwellings, strip developments, industrial and commercial complexes,
landfills, golf courses and parks. All impervious surface areas below 0.5 acres will also be
included within this category. Developed Lands are easily identified by their sizes, shapes, and
character of the associated developed area. Strictures range from square to rectangular. The
roof areas sometime appear to cover more than half of the lot area. Roads, small recreational
areas, and small public spaces serving the development are included.
2) Undeveloped Land: Includes open, scarified or disturbed lands, which tend to have
uncertain land uses and may contain native species. Signatures may range from heavily
vegetated to a disturbed, scoured, white appearance. The ground may also appear to be scraped
and worked, usually with angular or geometric boundaries.
3) Impervious Surface: Includes all surfaces above 0.5 acres, which do not allow, or
minimally allows, the penetration of water. Examples are building roofs, concrete and asphalt
pavements/parking lots and some fine grained soils such as clays. The photo signature for
impervious surface is usually a smooth, bright white or green/grey color typically from roofs,
concrete and asphalt parking lots and major roads.
4) Hammock: Used to designate most of the upland and upland hammock vegetation
found throughout the Keys that is natural and generally undisturbed. As a result, of the mixture
of species present within this category, signatures are typically a complex blend of colors,
textures, and crown shapes. On CIR photography conifers will appear as dull brick red to
purple -red in color and hardwoods will exhibit red/pink returns. Color returns will be greenish,
bluish, reds and dark brownish reds of all these varied species.
5) Pineland: This is an upland forest community with an open canopy dominated by the
native slash pine composed of known species. Rounded, asymmetrical and "feathered" brick red
canopies; individual trees visible. Grassy understories may be pale green with various pinkish
tones. Saw palmetto may be visible as irregular shaped pink to pinkish red patches with
relatively smooth textured tops.
6) Exotic: Invasive exotic species include Melaleuca, Australian Pine, Brazilian Pepper,
Leatherleaf and Sapodilla north of the seven mile bridge. Australian Pine have a texture similar
to dense broad-leaved canopies, with a fluffy overlapping crown pattern. This signature is
variable with respect to color return. In some areas, generally inland, this community provides a
bright red color while coastal occurrences result in a dark brownish red or purple return.
Brazilian Pepper are generally scarlet, "fluffy," asymmetrical crowned shrubs and can be
unevenly spaced and tend to grow in clumps. They may be of different ages and heights giving a
"cottony" and mottled pattern to the area.
7) Scrub Mangrove: Typically found in the lower Keys, coastal scrub mangrove of
dwarf mangrove are dominated by known species. Plants are typically less than 5' tall. Scrub
Mangrove have a mottled irregular pattern with small crowns and a bright red signature. Water or
sand is usually evident between the open canopy displaying a gray or white signature.
-204-
8) Freshwater Wetland: Wetland areas with either standing water or saturated soil or
both where the water is fresh or brackish composed of known species. Some Freshwater
Wetlands are isolated and therefore not subject to the MMU of 0.5 acres. Rather, photo
interpreters will delineate them without regard to the MMU. Signatures are very diverse, as a
result of the variety of vegetation and land forms that make up freshwater wetlands.
Communities may have dark patchy and irregular signatures with a variety of height, colors and
textures. Open water or water staining may be evident where the canopy is open. These
communities are temporarily to seasonally flooded and may dry out for extended periods.
9) Salt marsh: The salt marsh community is a wetland area subject to tidal influence, and
the vegetation is dominated by non -woody groundcovers and grasses. The signature can appear
white (dry sandy areas or very shallow water), gray (mud or murky water), or even light brown in
some tannin -stained areas. Salt marshes usually occur adjacent to mangrove communities.
10) Buttonwood: Designates the transitional areas located between tidal mangroves and
hammocks that are dominated by Buttonwood. The Buttonwood wetland is a wetland that is
usually present in the more landward zone of the transitional wetland area, and may intermix
with more upland communities. Signature is dark red or brown, with medium crowns, usually
packed tightly together in the transitional zones. Can be found intermixed with upland species in
the coastal areas
11) Mangrove: A wetland plant association subject to tidal influence where the vegetation
is dominated by Black, White or Red mangroves, containing both shrub and tree size vegetation.
Broad crowns and bright red signature primarily found in, but not limited to, coastal areas subject
to periodic or continual inundation by salt or brackish water. Stressed mangroves from hurricane
damage may result in a bright gray color and a rough or stippled texture.
12) Beach Berm: A bare sandy shoreline, coastal dune or a mound or ridge of
unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline. The
sand is calcareous material that is the remains of marine organisms such as corals, algae and
mollusks. The berm may include forested, coastal ridges and may be colonized by hammock
vegetation. The photo signature is usually a smooth, bright white or tan color adjacent to the
coastline throughout the work area. A mixture of grasses, shrubs and trees on the berm exhibit
smooth pink and fluffy or "cottony" red textures with white patches of sand visible through the
canopy.
13) Water: All water bodies, both fresh and tidal (saline). Water will exhibit a varying
tone from very dark to medium depending on the turbidity and sediment load of the water.
Highly turbid waters have a light blue or green signature due to the reflection from suspended
solids in the water.
- 205 -
Appendix 2
Candidate Species in the Florida Keys
Bartram's hairstreak butterfly
Bartram's hairstreak butterfly is endemic to south Florida and the lower Keys. The species was
locally common within the pine rocldand habitat that occurred in Miami -Dade and Monroe
counties, and less common and more sporadic within Collier, Palm Beach, and Broward counties
(Baggett 1982; Smith et al. 1994; Salvato and Hennessey 2004). However, development has
removed and/or fragmented pine rocldands from the majority of the hairstreak's former range
(Salvato and Hennessey 2004). This rapid loss of habitat and the resulting increased distance
between substantial populations of host plants in the remaining pine rocldands is the most likely
cause for the disappearance of the hairstreak from most of its historic range.
Bartram's hairstreak is present only on Big Pine Key. Although relict pine rocldands can still be
found on several other islands within NKDR, only Big Pine Key rocldands maintain pineland
croton (Salvato 1999; Salvato and Hennessey 2003; 2004). Hennessey and Habeck (1991) and
Salvato (1999) estimated that approximately 80 ha (198 ac) of croton-bearing pine rocldand
occurs on Big Pine Key.
Big Pine partridge pea
Big Pine partridge pea occurs primarily in pine rocldand vegetation. Some populations can be
found on roadsides (Hodges and Bradley 2005) or in cleared lots adjacent to pine rocldand. It is
capable of colonizing disturbed areas within pine rocldand habitat, such as dirt roads. It does not
persist in damp soil or depressions (Muir and Liu 2003).
The historical range of Big Pine partridge pea included Big Pine Key, Cudjoe Key, No Name
Key, Ramrod Key, Little Pine Key, and perhaps Sugarloaf Key (all in the lower Keys) (Hodges
and Bradley 2005). Today, the Big Pine partridge pea is widespread only on Big Pine Key.
There, it is distributed throughout the range of pine rocldand, though more widespread in the
northern than southern portion of the key (Bradley 2006; Bradley and Saha 2009). In 2005,
approximately 150 plants were found in pine rocldand on Cudjoe Key (Hodges and Bradley
2005); this subpopulation covered about 0.2 ha (0.5 acres). During the summer of 2005, a
subpopulation was also discovered along a county road on Lower Sugarloaf Key consisting of
only a few plants (Hodges and Bradley 2005). This may represent a recent range expansion,
since there is no additional suitable habitat for the species in the vicinity of this subpopulation
(Hodges and Bradley 2005). This subpopulation could not be located after Hurricane Wilma,
and the plants were probably killed by the tidal surge (Hodges and Bradley 2005).
Blodgett's silverbush (Argythamnia blodgettii)
In the Keys, this species grows in pine rocldand, rocldand hammock, coastal berm and on
roadsides, especially in sunny gaps or edges (Bradley and Gann 1999). This species historically
occurred in central and southern Miami -Dade County and throughout the Florida Keys from
- 206 -
Totten Key (latitude 25' 22.95') south to Key West (Bradley and Gann 1999).
Blodgett's silverbush_is currently known from Windley Key southwest to Big Pine Key (Bradley
and Gann 1999). More recently, Hodges and Bradley (2006) indicated that species' verified
range extends from Miami -Dade County to Boca Chica Key.
Cape Sable thoroughwort
The historical range for Cape Sable thoroughwort was the Florida Keys from Key Largo to Boca
Grande Key (12 miles west of Key West) and the southern mainland from the Cape Sable or
Flamingo area to the Madeira Bay area in what is now ENP (Bradley and Gann 2004). Bradley
and Gann (2004) found Cape Sable thoroughwort on five islands in the Keys (Upper Matecumbe
Key, Lignumvitae Key, Big Munson Island, Boca Grande, Long Key) and one small area in
ENP. Bradley and Gann (1999) summarized the habitat as follows, "This herb has been
observed most commonly in open sun to partial shade at the edges of rocldand hammock and in
coastal rock barren." The species also occurs in buttonwood hammock and the ecotone between
buttonwood hammock and coastal hardwood hammock in the southern Everglades (J. Sadle
2007).
The only large population is on Big Munson Island. Bradley and Gann (2004) stated that in the
Keys "fewer than 5,000 plants are estimated to exist with all but about 500 of these present on a
single privately owned island."
Everglades bully (Sideroxylon reclinatum austrgfloridense)
There have been no records of this taxon ever being collected in the Keys. In Monroe County,
Everglades bully is found only on the mainland (Hodges and Bradley 2006). Hodges and
Bradley (2006) stated that if it had occurred in the Florida Keys, the most likely locations would
have been pine rocldands on Key Largo, Big Pine Key, Cudjoe Key, or Lower Sugarloaf Key, all
of which were surveyed for this species. Hodges and Bradley (2006) indicated that most of the
sites on Key Largo have been developed.
Florida leafwing butterfly (Anaea troglodyte floridalis)
The Florida leafwing butterfly is endemic to south Florida and the lower Keys. However,
development has removed and fragmented pine rocldands from the majority of the leafwing's
former range (Service 1999; Salvato 1999). This species only occurs in pine rocldands with
pineland croton. The Florida leafwing has not been seen on Big Pine Key since 2006 and may
now be extirpated from the Keys (Salvato 2007; Minno 2009).
Florida prairie clover (Daley carthagenensis floridana)
This shrub is found in pine rocldands, edges of rocldand hammocks, coastal uplands, and marl
prairie (Chaffin 2000). This species was historically known from Miami -Dade, Collier, Monroe,
and Palm Beach counties. In Monroe County it has been known historically from the Pinecrest
region in the Big Cypress National Preserve. Although Florida prairie clover still occurs on the
- 207 -
mainland in Monroe County, no known occurrences are in the Keys. It was last documented in
1966 on Key Biscayne.
Florida semaphore cactus (Consolea corallicola)
This cactus grows close to salt water on bare rock with a minimum of humus -soil cover in
hammocks near sea level (Small 1930; Benson 1982). Gann et al. (2002) characterize habitats as
including low buttonwood transition areas between rocldand hammocks and mangrove swamps
and possibly other habitat such as openings in rocldand hammocks. On Swan Key this species
only occurs near the center of the island where it grows approximately 0 to 10 meters from the
edge of the hammock, which is embedded in tidal swamp dominated by red mangrove
(Rhizophora mangle) (Grahl and Bradley 2005).
Besides on Swan Key there is one other naturally occurring population of Florida semaphore
cactus and a few outplanted populations. The Nature Conservancy owns and maintains the
Torchwood Hammock Preserve on Little Torch Key in Monroe County where one population
occurs in an area approximately 1.0 acre in size (Florida Natural Areas Inventory 2007). Three
outplantings have occurred in Monroe County: (1) an outplanting of 96 cacti on an undisclosed
island in the lower Keys; (2) a total of 4 outplantings (170 plants) at five different locations at
Dagny Johnson Key Largo Hammock Botanical State Park on North Key Largo, which is
managed by the Florida Department of Environmental Protection; and (3) outplantings (40
plants/key) were attempted on six separate lower Keys on Federal and State lands.
Miami blue butterfly (Cyclargus (=Hemiargus) thomasi bethunebakeri)
The Miami blue is a coastal butterfly reported to occur in openings and around the edges of
hardwood hammocks, and other communities adjacent to the coast that are prone to frequent
natural disturbances (e.g., coastal berm hammocks, dunes, and scrub) (Opler and Krizek 1984;
Minno and Emmel 1994; Emmel and Daniels 2004), but also tropical pinelands (Minno and
Emmel 1993) and along trails, using open sunny areas (Pyle 1981). In the Keys, it was most
abundant near disturbed hammocks where weedy flowers provided nectar (Minno and Emmel
1994). It also occurred in pine rocldands on Big Pine Key (Calhoun et al. 2002) and elsewhere
in Monroe and Miami -Dade Counties. On islands of the KWNWR, Cannon et al. (2007), found
that "All areas occupied by Miami blue butterfly had a dune bordered by a berm hammock;
human impact was minimal," but these were on remote islands. Currently there are two distinct
metapopulations of the Miami blue, one at Bahia Honda State Park and one at KWNWR.
Red knot
Each year red knots make one of the longest distance migrations known in the animal kingdom,
traveling approximately 30,000 kilometers annually between wintering grounds in southern
South America and breeding areas within the Canadian Arctic. Migrating red knots are
principally found in marine and estuarine habitats (Harrington 2001). During the spring
migration, red knots stop over for a period of approximately two to three weeks along the
Atlantic coast of the United States to rebuild energy reserves needed to complete the j ourney to
the Arctic and arrive on the breeding grounds in good condition (Harrington 1996; Baker et al.
- 208 -
2004). In the southeastern and mid -Atlantic United States, red knots forage along sandy
beaches, tidal mudflats, salt marshes, and peat banks. In Florida, the birds also use mangrove
and brackish lagoons.
Sand flax (Linum arenicola)
Sand flax is found in pine rocldand, disturbed pine rocldand, marl prairie, roadsides on rocky
soils, and disturbed areas (Bradley and Gann 1999; Hodges and Bradley 2006). Sand flax
historically was distributed in Monroe County in the lower Keys and in central and southern
Miami -Dade County (Bradley and Gann 1999). This taxon is currently rare in relatively
undisturbed natural areas, with the exception of plants on Big Pine Key and the grounds of an
office building on Old Cutler Road. Sand flax also exists at Lower Sugarloaf Key, Big Torch
Key, and Middle Torch Key.
Wedge spurge (Chamaesyce deltoidea serpyllum)
Wedge spurge is known only from pine rocldand vegetation on Big Pine Key (Bradley and Gann
1999). In addition to the more common associates, wedge spurge "... can grow in association
with other rare taxa, including sand flax, and Big Pine partridge pea" (Bradley and Gann 1999).
- 209 -
Literature Cited for Candidate Species
Baggett, H.D. 1982. Order Lepidoptera. In R. Franz (ed.), Invertebrates. In P.C. Pritchard
(ed.) Rare and Endangered Biota of Florida. Vol. 6. Invertebrates, 78-81. University
Press, Gainesville, Florida.
Balser, A.J., P.M. Gonzalez, T. Piersma, L.J. Niles, I. de Lima Serrano do Nascimento, P.W.
Atkinson, N.A. Claris, C.D.T. Minton, M.K. Peck, and G. Aarts. 2004. Rapid population
decline in red knots: fitness consequences of decreased refueling rates and late arrival in
Delaware Bay. Proceedings of the Royal Society of London B271: 875-882.
Benson, L. 1983. The cacti of the United States and Canada. Stanford University Press,
Stanford, California.
Bradley, K.A. 2006. Distribution and population size for three pine rocldand endemic candidate
plant taxa on Big Pine Key, Florida. Report submitted to U.S. Fish and Wildlife Service,
Vero Beach, Florida. The Institute for Regional Conservation. Miami, Florida.
Bradley, K.A., and G.D. Gann. 1999. Status summaries of 12 rocldand plant taxa in southern
Florida. Report submitted to U.S. Fish and Wildlife Service, Vero Beach, Florida. The
Institute for Regional Conservation. Miami, Florida.
Bradley, K.A., and G.D. Gann. 2004. Status survey and monitoring of Cape Sable
thoroughwort, Chromolaena frustrata (B. L. Rob.) R. M. King and H. Rob. The Institute
for Regional Conservation. Final report submitted to the U.S. Fish and Wildlife Service,
Vero Beach, Florida.
Bradley, K.A., and S. Saha. 2009. Post -hurricane responses of rare plant species and vegetation
of pine rocldands in the Lower Florida Keys. Report submitted to U.S. Fish and Wildlife
Service, Big Pine Key, Florida. The Institute for Regional Conservation. Miami,
Florida.
Calhoun, J.V., J.R. Slotten, and M.H. Salvato. 2002. Rise and fall of tropical blues in Florida:
Cvclargus ammon and Cvclargus thomasi bethnnebakeri (Lepidoptera: lycaenidae).
Holarctic Lepidoptera 7(1):13-20.
Cannon, P., T. Wilmers, and K. Lyons. 2007. A survey of the Miami blue butterfly (Cvclargus
thomasi bethnnebakeri) in the Florida Keys National Wildlife Refuges, 26 November
2006- 30 July 2007. Unpublished report to U.S. Fish and Wildlife Service, National Key
Deer Refuge. Big Pine Key, Florida.
Chafin, L.G. 2000. Field guide to the rare plants of Florida. Florida Natural Areas Inventory.
Tallahassee, Florida.
Emmel, T.C., and J.C. Daniels. 2004. Status survey and monitoring of the rare Miami blue
butterfly (Hemiargus thomasi bethnnebakeri) in south Florida. Final report submitted on
- 210 -
February 24, 2004 and revised on July 15, 2004. University of Florida, Gainesville,
Florida.
Florida Natural Areas Inventory. 2007. Florida Natural Areas Inventory - element occurrence
records. Opnntia corallicola. Tallahassee, Florida.
Gann, G.D., K.A. Bradley, and S.W. Woodmansee. 2002. Rare plants of south Florida: their
history, conservation, and restoration. The Institute for Regional Conservation. Miami,
Florida.
Grahl, E.V., and K.A. Bradley. 2005. Opnntia corallicola (Cactaceae): population monitoring
on Swan Key, Biscayne National Park. The Institute for Regional Conservation. Miami,
Florida.
Harrington, B.A. 1996. The flight of the red knot. W.W. Norton and Company. New York,
New York. 192 pp.
Harrington, B.A. 2001. Red knot (('alidris canntns). In: A. Poole and F. Gill, editors. The
birds of North America, No. 563. Cornell Laboratory of Ornithology and The Academy
of Natural Sciences, Philadelphia, Pennsylvania. Pp. 1-32.
Hennessey, M.K., and D.H. Habeck. 1991. Effects of mosquito adulticiding on populations of
non -target, terrestrial arthropods in the Florida Keys. United States Department of
Agriculture - Agricultural Research Service, Miami, Florida.
Hodges, S.R., and K.A. Bradley. 2005. Distribution and population size of five candidate plant
taxa in the Florida Keys. Status Report for U.S. Fish and Wildlife Service, Vero Beach,
Florida. Institute for Regional Conservation. Miami, Florida.
Hodges, S.R., and K.A. Bradley. 2006. Distribution and population size of five candidate plant
taxa in the Florida Keys: Argvthanmia blodgettii, (hamaecrista lineata var. kevensis,
Indigofera mncronata var. kevensis, Linnm arenicola, and Sideroxvlon reclinatnm subsp.
anstrofloridense. The Institute for Regional Conservation. Final Report Contract
Number 401815G01 L Miami, Florida.
Minno, M. 2009. Personal Communication. Biologist. Email to Paula Halupa. Eco-Cognizant,
Inc. Gainesville, Florida. February 16, 2009.
Minno, M.C., and T.C. Emmel. 1993. Butterflies of the Florida Keys. Scientific Publishers,
Inc., Gainesville, Florida.
Minno, M.C., and T.C. Emmel. 1994. Miami Blue, Hemiargns thomasi bethnnebakeri
Comstock and Huntington. Pages 646-649 in M. Deyrup and R. Franz (eds.), Rare and
Endangered Biota of Florida, Vol. IV, Invertebrates. University Press, Gainesville,
Florida.
- 211 -
Muir, A., and H. Liu. 2003. Conservation action plan: (hamaecrista lineata var. kevensis.
Unpublished report. Fairchild Tropical Garden, Miami, Florida.
Opler, P.A., and G.O. Krizek. 1984. Butterflies east of the Great Plains. The John Hopkins
University Press, Baltimore, Maryland.
Pyle, R.M. 1981. The Audubon Society field guide to North American butterflies. Alfred A.
Knopf, New York.
Sadle, J. 2007. Personal Communication. Botanist. Email to Paula Halupa. Everglades
National Park. Homestead, Florida. November 29, 2007.
Salvato, M.H. 1999. Factors influencing the declining populations of three butterfly species in
South Florida and the lower Florida Keys. M.S. Thesis. University of Florida,
Gainesville, Florida.
Salvato, M.H. 2007. Personal Communication. Biologist. Email to Paula Halupa. U.S. Fish
and Wildlife Service, South Florida Ecological Services Office. Vero Beach, Florida.
October 1, 2007.
Salvato, M.H., and M.K. Hennessey. 2003. Notes on the Historic Range and Natural History of
Anaea troglodyta iloridalis. Journal of the Lepidopterists' Society 57(3):243-249.
Salvato, M.H., and M.K. Hennessey. 2004. Notes on the status and fire -related ecology of
,Strvmon acis bartrami. Journal of the Lepidopterists' Society 58(4):223-227.
Small, J.K. 1930. Consolea corallicola, Florida semaphore cactus. Addisonia 15:25-26.
Smith, D.S., L.D. Miller, and J.Y. Miller. 1994. The butterflies of the West Indies and South
Florida. Oxford University Press, New York.
U.S. Fish and Wildlife Service. 1999. South Florida multi -species recovery plan. U.S. Fish
and Wildlife Service, Atlanta, Georgia.
- 212 -
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Appendix 3
June 11, 2004 Order Approving Settlement Agreement
ROBERT LEE CLAY, JOHN K
MOYANT and U CHUNG MOYANT,
and RICHARD N. MAROT, arib CHARLENE MAROT,
Petifickners,
vs, CASE NO,: 04-CA-05-M
M Lo Idwall
ANd
MV WAN I a, MUM I IM,
Respondent.
,SETTLEMENT AGREEMENT
CHIUNG MOYANT; RICHARD N. MAROT and CHARLENE MAROT; DI ETMAR
ME NCK and G UDRUN S H ULZ-M ENCK, and th a Responden t, M ON ROE COU NTY, a
Political subdivision of tM stateof �,,��'—Sieftte-ctk—nt �.i -1,
MMMME��
Key, Florida, and
Lim
IT
EME=
Key, and
-214-
111111111111 , '', ','I I I''
Each of the Petitioners has applied for, paid for, and recelived approval for
the construction of a single family home on their respedwe lots in Big
Pine Key, Monroe, County, Florida, and such approval is currently in
effecL
iiii Iii iffilill III liq Iiii i 1 !111111
■3�„�
111111111illi Iiiiijil il1 ill 1111 i 111111111111 111111111 �ililillIII llil 111111111
■I llil i��p+t! I
jIl
1 Patittioner Moyant, owner of Lot 41, obtained Lot 39 from the County in return for the
dedication of a more environmentafly, sensitive tract -of land conveyed ID the County by him.
Petitioners Clay ard Moyant inend to swaip Clay's Lot 40 with Moyant's Lot 39, Moyant then will
build his single family home on Lots 40 and 41, and ClayvAll build on Lot 39, This land swap was
approved by 80 CC RescIfution 179-2003 enacted on February 28, 2004
3
- 215 -
Dietmar Menck and Gudrun S Earl -Maack a building permit to construct a
single family home on Lots 4 and 5, Stock 24, Eden Pines Subdivision, V
Addition, Big it Key, Florida.
6. Upon the, issuance of the permits to the Petitioners, the Petitioners shall
have all the rights, responsibilities and duties that the Monroe County
Code and Land Development Regulations grant, to builders of single
family homes in Monroe County, Florida.
7. Upon the conclusion of the process for the issuance, of the above -
referenced permits and the expiration of the period for the Department, of
Community Affairs to review the Petitionem! permits, the Petitioners shall'
file a notice of voluntary dismissal with prejudice of the above -styled
action.
8. By entering into this agreere rt, the parties agree to waive and release
any claims that were raised or could have been raised in this 111figatiom
After approval of this agreement by the Court, all parties shal I exchange
mutual releases in a, format customarily used in this County. All parties
acknowledge there is othef Iffigatiofl, presently on appeal between some
of these parties a n4 th Is Agreement Is not Intended, nor shall it be
construed to, waive any rights in any other pending litigation or appeal.
9. Each party shalt bear As own attorney's fees and costs in connection with
this litigation. In the event it b000rnes necessary for any party to this
litigation to commence legal proceedings to enforce the terms of this
agreement,, the, prevailing party, shall be entitled to reasonable attorney's
it
- 216 -
fees and costs in connection with such action.
Fill ';I I I I I l Il I I I I I� Ill I I I I I I I I
F I I I I iiii F I I I I I! I lillillill I I I I! Ili! III!:!!lmlofM'
VT=
111111 111:11111111111 I pil 11
Mill Ili I I I
1!!11 ;z 1. 1 '1111!li 111111111115111111111111111111
just, Jawl and appropriate under the circumstances.
u"i
abed B. Shiffinger, Esq. (Dat6) FriKkfih D. Greenman, Esq. (Date)
Assistant County Atbriney GREENMAN & MANZ
R0. Box 1026 5800 Overseas Highway, Suite 40
Key West, FL 33041-1026 Marathon, FL 33050
(305) 29273470 (304-2351
Attorney for the Respondent Attorney for the Petitioners
FBN: 05,8262 FB.N: 290815
MONROE COUNTY ATTORNEY
N
- 217 -
Appendix 4. Effects Analysis Figure and Tables
- 218 -
CD CD CD CD CD CD 0
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- 219 -
0
LIFE OF PERMIT
13
ROGO UNITS - UNINCORPORATED MONROE COUNTY
197
Tier 1/year
6
Tier 1/year (LOW KEYS)
3
Tier 1/year (UPPER KEYS)
3
Outside Tier 1/year
191
Outside Tier 1/year (LOW KEYS)
64
Outside Tier 1/year (MIDDLE KEYS)
63
Outside Tier 1/year (UPPER KEYS)
64
Tier 1 in Big Pine -No Name HCP/Life of permit
10
Tier 1 Big Pine -No Name HCP issued
1
Tier 1 Big Pine -No Name HCP remaining
9
ROGO Units/Year - Village of Islamorada
28
ROGO Units/Year - City of Marathon
30
ROGO Units/Year - City of Layton
3
ROGO Units/Year - City of Key Colony Beach
22
ROGO Units/Year - City of Key West
92
ROGO Units/Year - Entire County
372
Additional Square Feet of Commercial/ROGO
239
Percent of residences with cats
34%
Avg # of cats/residence
2.1
% of residential cats that are "indoor only"
40%
% of residential cats that go outdoors
60%
Additional feral cat population in relation to domestic cats
2/3
Average Trips/Day
1 8
Table EA-1: A list of standard parameters that apply to the analyses
- 220 -
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Figure 1. The action area for the FEMA's consultation on their National Flood Insurance Program in
the Florida Keys, Monroe County, Florida 2010
- 235 -
Figure 2. The silver rice rat critical habitat for the FEMA's consultation on their National Flood
Insurance Program in the Florida Keys, Monroe County, Florida 2010
- 236 -
Figure 3. Focus area for the eastern indigo snake for the FEMA's consultation on their National Flood
Insurance Program in the Florida Keys, Monroe County, Florida 2010
- 237 -
Figure 4. Focus area for the key deer for the FEMA's consultation on their National Flood Insurance
Program in the Florida Keys, Monroe County, Florida 2010
- 238 -
Figure 5. Focus area for the Key Largo cotton mouse for the FEMA's consultation on their National
Flood Insurance Program in the Florida Keys, Monroe County, Florida 2010
-239-
Figure 6. Focus area for the Key Largo woodrat for the FEMA's consultation on their National Flood
Insurance Program in the Florida Keys, Monroe County, Florida 2010
- 240 -
Figure 7. Focus area for the Keys tree -cactus for the FEMA's consultation on their National Flood
Insurance Program in the Florida Keys, Monroe County, Florida 2010
- 241 -
Figure 8. Focus area for the Lower Keys marsh rabbit for the FEMA's consultation on their National
Flood Insurance Program in the Florida Keys, Monroe County, Florida 2010
- 242 -
Figure 9. Focus area for the Schaus swallowtail butterfly for the FEMA's consultation on their
National Flood Insurance Program in the Florida Keys, Monroe County, Florida 2010
- 243 -
Figure 10. Focus area for the silver rice rat for the FEMA's consultation on their National Flood
Insurance Program in the Florida Keys, Monroe County, Florida 2010
- 244 -
Figure 11. Focus area for the Stock Island tree snail for the FEMA's consultation on their National
Flood Insurance Program in the Florida Keys, Monroe County, Florida 2010
- 245 -
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 90-10037-Civ-Moore
Florida Key Deer,
Key Largo cotton mouse, Key Largo woodrat,
Key tree -cactus, Lower Keys marsh rabbit,
Schaus' swallowtail butterfly, the silver rice
rat, and the Stock Island tree snail,
NATIONAL WILDLIFE FEDERATION,
FLORIDA WILDLIFE FEDERATION,
and DEFENDERS OF WILDLIFE
Plaintiffs,
VS.
W. CRAIG FUGATE, in his official capacity
as Director, Federal Emergency
Management Agency ("FEMA"), Department of
Homeland Security, and DIRK KEMPTHORNE, in his
official capacity as Secretary of the United States
Department of the Interior,
Defendants.
SETTLEMENT AGREEMENT
AND COVENANT NOT TO SUE
Attachment B
Plaintiffs National Wildlife Federation, Florida Wildlife Federation, and Defenders of
Wildlife ("Plaintiffs") and W. Craig Fugate and Dirk Kempthorne ("Federal Defendants"), by
and through their undersigned counsel, hereby state and agree as follows:
WHEREAS Plaintiffs in this action challenged a biological opinion issued by the
Defendant U.S. Fish and Wildlife Service ("FWS") in 1996 (as amended in 2003), concerning
the Federal Emergency Management Agency's ("FEMA's") administration of the National
Flood Insurance Program in Monroe County, Florida, "may affect" the Florida Key deer, a listed
endangered species, and that FEMA therefore was required to consult with the Fish and Wildlife
Service under Sec. 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2). See DE # 119 filed July 27, 1998
(First Amended Complaint); DE # 187 filed July 28, 2003 (Second Amended Complaint).
WHEREAS this Court issued summary judgment in favor of Plaintiffs by order filed
March 29, 2005. DE # 214.
WHEREAS this Court issued an injunction by order filed September 12, 2005. DE #
237. The injunction prohibited FEMA from "issuing flood insurance for new developments
[defined as any residential or commercial development where construction of the structure has
not yet begun as of the entry of this Order] in the suitable habitats of the Listed Species in
Monroe County, Florida from the date of this Order until such time as the Court concludes that
Defendants have complied with the March 20, 2005 Order, the ESA, and the [Administrative
Procedure Act]." Id. at 22.
WHEREAS this Court directed Defendant FWS to complete a new biological opinion in
consultation with Defendant FEMA by Order filed September 12, 2005 (DE # 237).
WHEREAS Federal Defendants appealed portions of this Court's ruling on November
10, 2005 see DE # 291); however, no appeal was taken concerning the substance of the 2003
biological opinion with respect to § 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2).
363.
WHEREAS Defendant FWS issued a new biological opinion on August 8, 2006. DE #
WHEREAS the U.S. Court of Appeals for the Eleventh Circuit affirmed the decision
below. DE # 418.
WHEREAS the parties previously settled Plaintiffs' claim for attorneys' fees and costs
PA
incurred through and including November 5, 2008. DE # 439.
466.
WHEREAS Defendant FWS issued a revised biological opinion on April 30, 2010. DE #
WHEREAS Plaintiffs and Federal Defendants wish to settle Plaintiffs' claim for
reasonable attorneys' fees and costs associated with this litigation since the Court previously
awarded Fees and Costs to Plaintiffs on November 5, 2008 (DE # 439).
WHEREAS Plaintiffs and Federal Defendants wish to avoid further litigation concerning
the substance of FWS' revised biological opinion dated April 30, 2010, DE # 466.
NOW THEREFORE, the Plaintiffs and Federal Defendants agree hereto to the entry of
this Settlement Agreement and Covenant Not to Sue ("Settlement").
1. The Parties agree that this Settlement is negotiated in good faith and that it
represents a fair and equitable resolution of their differences.
2. The Parties agree that venue is proper.
3. Defendant FWS agrees that it will, in good faith, consider amending the revised
biological opinion dated April 30, 2010, as provided in Exhibit 1. Within 14 days after entry of
this Settlement Agreement, Defendant FWS will issue any final amended biological opinion.
Defendant FEMA will issue a written decision whether to adopt the RPA set forth in the final
amended biological opinion within 30 days after FWS issues any final revised biological
opinion. FWS and FEMA will jointly provide notice to the Court regarding FEMA's decision to
adopt the RPA as contemplated in this Paragraph.
4. Provided that FWS issues its final amended biological opinion and FEMA adopts
an RPA materially similar to that in Exhibit 1 hereto, Plaintiffs hereby agree to relinquish and
K
waive all claims against FWS and FEMA concerning the substance of the April 30, 2010
biological opinion and RPA, as amended. Plaintiffs will provide notice to the Court that it is
relinquishing and waiving all claims against FWS and FEMA concerning the substance of the
April 30, 2010 biological opinion and RPA, as amended, within 14 days after FEMA adopts the
RPA as contemplated in Paragraph 3.
5. Upon filing of Plaintiffs' notice as contemplated in Paragraph 4, Plaintiffs and
Federal Defendants hereby stipulate to entry of the accompanying Proposed Order, which
specifies that the FWS' new biological opinion shall be deemed to be in compliance with this
Court's previous Orders for FWS to issue a new biological opinion that complies with the
Court's March 20, 2005 Order, the ESA and the APA.
6. The Federal Defendants will notify the Court and the parties when Monroe
County and the other "participating communities" in the Florida Keys have: 1) revised their
Flood Damage Prevention Ordinance(s); and 2) implemented procedures to reference and use the
updated real estate list and Species Focus Area Maps (referenced in reasonable and prudent
alternative ("RPA') paragraph 1) in compliance with paragraphs 2, 3, 4, and 5 of the RPA.
Defendants will include copies of relevant ordinances and associated implementation documents
in providing any notice to the Court under this Paragraph.
7. The parties agree that the Injunction entered by this Court on September 12, 2005
(DE # 237) shall remain in effect until Federal Defendants provide notice to the Court pursuant
to Paragraph 6 above.
8. Plaintiffs' sole remedy to challenge the merits of any actions taken by Federal
Defendants FEMA, FWS, and/or the participating communities pursuant to the April 30, 2010
0
biological opinion and RPA, as amended, shall be to file a new lawsuit.
9. Upon entry of the accompanying "Proposed Order" Federal Defendants agree to
pay Plaintiffs the amount of $162,280.59 in settlement of Plaintiffs' claims for an award of
litigation costs, including attorney fees, pursuant to the Equal Access to Justice Act ("EAJA"),
28 U.S.C. § 2412, and/or the Endangered Species Act, ("ESA"). Federal Defendants agree to
pay such award to National Wildlife Federation c/o John Kostyack, 900 E. St., N.W., Suite 400,
Washington, D.C. 20004, on behalf of Plaintiffs in this action. In consideration of payment of
such award, Plaintiffs agree to accept the stated sum in full and final satisfaction of any claim for
attorneys' fees and costs for litigation in the above -captioned case for the period of November 5,
2008 through and including the date of this Settlement. Plaintiffs agree that such award
encompasses the entire amount of attorneys' fees and costs to which they are entitled from any
parry in the above -captioned matter, including all work and costs performed or incurred during
the period of November 5, 2008 - present, including any work or costs performed or incurred in
preparing this Settlement. Plaintiffs agree that they are not entitled to any further monetary
award in connection with work and costs performed or incurred in connection with this lawsuit.
10. This Settlement is effective upon entry of the accompanying "Proposed Order" by
the Court.
11. This Settlement has no precedential value as to attorneys' fees and costs and shall
not be used as evidence in any other attorneys' fees litigation.
12. Within 10 days of receipt of a fully executed, file -stamped copy of the "Proposed
Order" pursuant to this Settlement Agreement, Defendants agree to submit all necessary
documentation for initiation of disbursement processing by the Department of the Treasury for
5
payment of this award.
13. Within 10 days of receipt of payment of fees and costs pursuant to this
Settlement, Plaintiffs will file a notice of satisfaction of judgment.
14. The Parties, by their duly authorized representatives, agree to this Settlement
Agreement.
15. The provisions of this Settlement shall apply to and be binding upon each of the
Parties including, but not limited to, their officers, directors, servants, employees, successors,
and assigns.
16. This Settlement and the accompanying "Proposed Order" constitute the entire
agreement of the Parties concerning the rights and obligations discussed herein and subject to
dispute in this suit. No other agreement shall govern the rights of the Parties with respect to the
matters resolved by this Settlement, except in accordance with the terms herein. No
modification to this Settlement shall be valid unless written and executed by both parties thereto.
17. The Parties recognize that notwithstanding their efforts to comply with the
commitments contained herein, an "Act of God" or "force maj eure," including a natural disaster,
may prevent or delay such compliance. Force majeure will not continue beyond the
circumstances and conditions that prevent timely performance, and will not apply if alternative
means of compliance are available. The Party claiming force majeure will have the burden of
proof in proceedings to enforce or modify this Settlement.
18. Nothing in this Settlement Agreement will be construed to deprive a federal
official of the authority to revise, amend, or promulgate regulations or any discretion accorded
by federal law concerning the substance of any actions taken hereunder. No provision of this
T
Agreement shall be interpreted as or constitute a commitment or requirement that defendants
obligate or pay funds in violation of the Anti -Deficiency Act, 31 U.S.C. § 1341, or any other law
or regulation.
SETTLEMENT AGREEMENT AND COVENANT NOT TO SUE APPROVED FOR
FEDERAL DEFENDANTS:
IGNACIA S. MORENO
Assistant Attorney General
SET' H M. BARSKY�,_Acting
.Section Chief
/} December 3, 2010 1 LWk U,-
MARK A. BROWN
FL Bar No. 0999504
Senior Trial Attorney
mark.brown@usdoj.gov
U.S. Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
P.O. Box 7369
Washington, D.C. 20044-7369
Telephone: (202) 305-0204
Facsimile: (202) 305-0275
Street Address:
U.S. Department of Justice
601 D St., N.W.
Room 3033
Washington, DC 20004
Counsel for Federal Defendants
12/03/2010 10:45 FAX IM 002
Case 4:90-cv-10037-KMM Docurnent482 Entered on FLSD Docket 12/03/2010 Page8of9
SErrLEMMqTAGRp_EMWr AND CoVr
PLAINT7PFS NANTNOT TO SUP APPROVED r-OR
December 3, 2010 -14, L). .4
&IF-1—M—K—OSTYAR V
kosLyar,k@nwr.org �eyl Y'-'
National Wildlife Federation
National Advocacy Center
901 E St, NW` Suite 400
Washington, DC 20()()4
Telephone: (202) 797-6879
Famin-ffle. (202) 797-6646
Counsel for PWntitlk
11
CER3:1FICATE OE SERVICE
I hereby certify that on December 3, 2010 1 electronically filed the foregoing with the
Clerk of the Court using CMIECF. I also certify that the foregoing document is being served this
day on all counsel of record identified on the Mailing Information for Case 90-10037. Counsel
of record currently identified on the Mailing Information list to receive e-mail notices for this
case are served via Notices of Electronic Filing generated by CMIECF.
^zjx. OVA.-n I_Lm�
Mark Arthur Brown
E
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.
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
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.
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
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
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.
5. 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.
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 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
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
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.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 90-10037-Civ-Moore
FLORIDA KEY DEER, et al.,
Plaintiffs,
VS.
W. CRAIG FUGATE, et al.,
Defendants.
ORDER
THIS CAUSE came before this Court on the Plaintiffs' and Federal Defendants'
Settlement Agreement and Covenant Not To Sue ("Settlement") filed December 3, 2010.
UPON CONSIDERATION, and being otherwise fully advised in the premises, it is
- - - ORDERED AND ADJUDGED that the U.S. Fish and Wildlife Service's Biological
Opinion 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 dated April 30, 2010, DE # 466, as amended pursuant to
the Settlement is hereby deemed to be in compliance with this Court's previous Orders for FWS
to issue a new biological opinion that complies with the Court's March 20, 2005 Order (DE #
237), the Endangered Species Act and the Administrative Procedure Act.
IT IS FURTHER ORDERED AND ADJUDGED that the parties' stipulation as to an
award of fees and costs incurred by Plaintiffs since November 5, 2008 is hereby APPROVED.
IT IS FURTHER ORDERED AND ADJUDGED that the Court shall retain jurisdiction
solely for the purpose of enforcing the Court's injunction, DE # 237, which shall remain in effect
until Federal Defendants provide notice to the Court pursuant to the Settlement.
DONE AND ORDERED, in Chambers, at Miami, Florida, this _ day of , 2010.
cc: All counsel of record
K
UNITED STATES DISTRICT JUDGE
K. MICHAEL MOORE
EXHIBIT C
SPECIES FOCUS AREA PARCEL LIST
(This exhibit is very large; please refer to the following link to access
the list. Please be patient as this is a very large file to download.)
SPECIES FOCUS AREA MAPS
(This exhibit is very large; please refer to the following link to access
the list. Please be patient as this is a very large file to download.)
SPECIES FOCUS AREA ASSESSMENT FORM
Attachment E
APPLICANT
Name:
Address:
Real Estate Number:
Permit Number:
Latitude:
Permit Type:
Longitude: _
ASSESSMENT GUIDE CHECK LIST
Is the Property on the RE Parcel List: ❑ Yes ❑ No Date of List:
Property located in (check appropriate): ❑ Focus Area ❑ Buffer* ❑ Neither
*If a property is mapped as both Buffer and Focus Area, consider it as wholly within the Focus Area.
Has the Property been pre -determined to NLAA (batch correspondence): ❑ Yes ❑ No
Date of Letter:
Number of Species in Focus Area:
Area of Native Vegetation Disturbed:
Brochures provided: ❑ Yes ❑ No
square feet
Check Determination
Species
(circle letters as determined in Assessment Guide)
No Effect
NLAA
Ma Affect
Eastern indigo snake
A
B
C
D
E
F
G
Key deer
A B C D E F
G H
Key Largo woodrat &
A
B
C
D
E
F
G H
cotton mouse
Key tree cactus
A
B
C
D
E
Lover Keys marsh
rabbit
A
B
C
D
E
F
G H
Schaus swallowtail
butterfly
A
B
C
D
E
F
Silver rice rat
A
B
C
D
E
F
G H
Silver rice rat critical
habitat
A
B
C
Stock islandtree snail
A
B
C
D
E
FINAL DETERMINATION - Refer to Service: IJ Yes U No Date Referred:
Mitigation Provided (check all that apply):
❑ Monetary compensation ❑ Conservation easement
❑ Replacement
Signature of applicant:
❑ Other (describe)
Date:
❑ Restoration
Signature of approving official: Date:
Eastern Indigo Snake Species Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 14,413 at -risk parcels, representing
14,960 acres, intersecting habitats that may occasionally be used by the eastern indigo snake
(indigo snake; Drymarchon corais couperi) in Monroe County. There are at -risk 10,921 acres
and 10,711 parcels in unincorporated Monroe County; 1,406 acres and 1,433 parcels in Islamorada;
20 acres and 112 parcels in Key Colony Beach; 703 acres and 433 parcels in Key West; 1 acre and
6 parcels in Layton; and 1,910 acres and 1,718 parcels in Marathon. The BO also identified an
additional 8,580 acres of at -risk lands outside Monroe County's parcel layer not subject to the Rate
of Growth Ordinance program.
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are considered
native land cover types. The water classification is also considered a native cover type. The
minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5 acre for all other
cover types.
The County's boundary map land cover types containing suitable habitat for the indigo snake include
undeveloped land, hammock, pineland, exotic, scrub mangrove, freshwater wetland, salt marsh,
buttonwood, mangrove, and beach berm.
Species Profile: The Florida Keys are on the extreme southern end of the indigo snake's range.
The indigo snake population in the Florida Keys is very small (Cox and Kautz 2000). Verified
observations are rare and scattered; the latest was in 2009 on Little Knockemdown Key (Service
2010). In the last several years, three unsubstantiated observations of the indigo snake were reported,
two on Grassy Key (City of Marathon) and one in the Village of Islamorada (Sheahan 2006). Indigo
snake surveys were conducted on Big Pine and No Name Key in 2006 and 2007 (Schmidt et. al.
2008) and, although 27 species of reptiles were noted (973 total observations), the indigo snake was
not observed.
The Service issued a Section 10(a)(1)(B) Incidental Take Permit (ITP) to Monroe County, Florida
Department of Transportation, and Florida Department of Community Affairs (applicants) in June
2006 for adverse effects from development on Big Pine and No Name Keys. The ITP authorizes take
of 168 acres of suitable indigo snake habitat. The take will be incidental to land clearing for
development and recreational improvements. The Service issued the ITP to the applicants based
upon their development of a Habitat Conservation Plan (HCP) that sets guidelines for development
activities on Big Pine and No Name Keys to occur progressively over the permit period (20 years).
The HCP provides avoidance, minimization, and mitigation measures to offset impacts to covered
species, including the indigo snake. Mitigation includes the protection of three mitigation units for
each development unit of suitable habitat within the plan area.
Threats: Although the species may occur in all referenced habitats, it is suspected that they prefer
hammocks and pine forest, because most observations occur in these habitats disproportionately to
Eastern indigo snake Species Assessment Guide
their presence in the landscape (Steiner et al. 1983). In the Florida Keys, the primary threat to the
indigo snake is native habitat loss and fragmentation due to development. Residential housing is also
a threat because it increases the likelihood of indigo snakes being killed by property owners.
Assessment Guide: In order to provide assistance in assessing threats to the indigo snake from a
given project, the Service has developed the following guidance and recommendations that, if
implemented, will minimise adverse effects to the indigo snake. If the use of this guide results in a
determination of "no effect" for a particular project, the Service supports this determination. If the
use of this guide results in a determination of "not likely to adversely affect" (NLAA), the Service
concurs with this determination and no additional correspondence is necessary. If the use of this
guide results in a "may affect" determination, then additional coordination with the Service is
necessary prior to permit issuance. For projects that result in a "may affect" determination, if,
after reviewing the specific project and assessing its potential effects to federally listed species,
the Service determines that the project will result in take, the Service will notify FEMA and the
acreage of impacts will be subtracted from the take limits provided in the BO. This guide is
subject to revision as necessary.
A. Parcel is not in the species focus area and/or on the Real Estate (RE) parcel list ............no effect
Parcel is in the species focus area or on the RE parcel list ................................................. go to B
B. Parcel is on Big Pine Key or No Name Key.........................................may affect (refer to HCP)
Parcel is not on Big Pine Key or No Name Key................................................................. go to C
C. The property is within a developed subdivision or canal subdivision and adjacent lots
and properties within 500 feet are greater than 60 percent developed or scarified.
Provide indigo snake protection measures brochure........................................................... NLAA
The property is not as above and contains and/or is adjacent to contiguous hammock
greater than i acre in size. Further coordination with the Service is necessary
..................................................................................................may affect
Notas Above......................................................................................................................go to D
D. Parcel is mapped as containing the indigo snake's native habitat (i.e., hammock,
pineland, scrub mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, or
beachberm)........................................................................................................................ go to E
Parcel is mapped as containing only non-native habitat (undeveloped land or exotic)...... go to G
E. The proposed action will not remove or modify the indigo snake's native habitat ............ go to G
The proposed action will remove or modify the indigo snake's native habitat.
A vegetation survey is required to document the native plant species and size present
May 20, 2012 2
Eastern indigo snake
Species Assessment Guide
on the property and a general description of the surrounding properties within 500
feet is also required. Once complete..................................................................................go to F
F. The applicant has proposed either on -site or off -site habitat compensation*
commensurate with the amount of native habitat lost, has received a copy of the
Service's indigo snake protection measures (attached), and has agreed to implement the
measures and post the information brochure on -site. The signed Assessment Form
verifying this is in the permit file maintained by the NFIP participant community.
Permit with indigo snake protection measures and habitat compensation* ..........................NLAA
The applicant will not agree to the indigo snake protection measures, is not proposing
habitat compensation* or the proposed habitat compensation* does not meet minimum
compensation requirements...........................................................................................may affect
G. The applicant has received a copy of the Service's indigo snake protection measures
and has agreed to implement the measures and post the information brochure on -site.
The signed Assessment Form verifying this is in the permit file maintained by the NFIP
participant community. Permit with indigo snake protection measures ............................. NLAA
Notas above..................................................................................................................may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
May 20, 2012 3
Eastern indigo snake
Species Assessment Guide
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for the indigo
snake, it is important for FEMA and the NFIP participants to monitor the number of permits and
provide information to the Service regarding the number of permits issued. In order to meet the
reporting requirements in the BO, we request that FEMA and/or the NFIP participants send to the
Service an annual database summary consisting of. project date, permit number, project acreage,
native impact acreage, amount of acres and/or number of trees/plants replaced as habitat
compensation, and project location in latitude and longitude in decimal degrees.
Literature Cited
Cox, J. and R.S. Kautz. 2000. Habitat conservation needs for rare and imperiled wildlife in Florida.
Florida Game and Freshwater Fish Commission, Office of Environmental Services;
Tallahassee, Florida.
Duquesnel, J. 1998. Keys invasion by alien lizards continues. Florida Department of Environmental
Protection, Florida Park Service, Resource Management Notes 10(1):9.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science,
Incorporated. St. Petersburg, Florida
Schmidt, P.M., R.R. Lopez, R.N. Wilkins, and N.J. Silvy. 2008. Recovery Permit # TE125517-0
Final Report to the U.S. Fish and Wildlife Service, Vero Beach, Florida.
Sheahan, B. 2006. Personal communication. Senior planner. Village of Islamorada, Florida.
Steiner, T.M., O.L. Bass, Jr., and J.A. Kushlan. 1983. Status of the eastern indigo snake in southern
Florida National Parks and vicinity. South Florida Research Center Report SFRC-83i0 1,
Everglades National Park; Homestead, Florida.
U.S. Fish and Wildlife Service. 2010. Eastern indigo snake observation; Little Knockemdown Key.
Email and photo provided to KDNWR, Big Pine Key, Florida.
May 20, 2012
Eastern Indigo Snake Protection Measures
It appears that harm to the eastern indigo snake occurs primarily through construction accidents, vehicular
strikes, and habitat loss and/or degradation. These adverse effects can be minimized by maintaining a careful
watch during construction and when traveling onsite to avoid killing snakes. In addition, protecting burrows
and leaving native vegetation as refugia onsite for indigo snakes displaced by construction activity can benefit
this species.
The eastern indigo snake is not likely to be adversely affected if the following measures are implemented for
the project.
1) Burrows and onsite native vegetation should be protected. If such habitat must be disturbed, limit
disturbance to a minimum and improve remaining habitat through exotic vegetation removal. Maintain
native vegetation onsite as refuges for the snake.
2) Clearing and grading activities should be performed outside high activity months (June to November).
Winter months (January to March) provide the best opportunity to initiate and complete construction
activities that will not impact this species.
3) Post informational signs containing the following information throughout the construction site and along
any proposed access road:
a) A description and picture of the eastern indigo snake, its habits, and protection under Federal Law;
b) Instructions not to injure, harass, or kill this species;
c) Directions to cease clearing activities and allow the eastern indigo snake sufficient time to move away
from the site on its own before resuming clearing; and,
d) Telephone numbers of pertinent agencies to be contacted if a dead eastern indigo snake is encountered.
Other useful educational materials may consist of a combination of posters, videos, pamphlets, and lectures
(e.g., an observer trained to identify eastern indigo snakes could instruct construction personnel before any
clearing activities occur).
4) Monitor eastern indigo snake activity onsite. Report any eastern indigo snake observations that occur
during project activities (see monitoring report below). Document with photograph, if possible. If large
snake skins are found, they may belong to an eastern indigo snake. Skins can be collected and sent to the
Service's South Florida Ecological Services Office (attention: Monroe County FEMA Biologist, U.S. Fish
and Wildlife Service, South Florida Ecological Services Office, 1339 20th Street, Vero Beach, Florida
32960) for positive identification. Provide information on the date and location collected.
Monitoring Report: A monitoring report should contain the following information: location, dates, and times
for any sightings of eastern indigo snakes. Also include the results any of burrow searches and observations.
If a snake is encountered during a burrow search, then a description of the outcome for the snake is needed.
Document by photograph, if possible. Was the snake left in an intact burrow? Was the burrow excavated? If
so, did the snake leave and where did it go? A site map with sighting locations marked would be helpful. If an
indigo snake is observed onsite a copy of the report is to be sent to the Service at the address listed above
within 60 days of the conclusion of the project.
Dead, injured, or sick animals: If a dead, injured, or sick eastern indigo snake is found onsite, notification
should be made to the Service at the address listed above. Secondary notification should be made to the
Florida Fish and Wildlife Conservation Commission; South Region; 3900 Drane Field Road; Lakeland, FL
33811; Wildlife Alert Number 1-800-404-3922.
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Key Deer Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 8,205 at -risk parcels intersecting 6,746
acres of habitats that may occasionally be used by the endangered Key deer (Odocoileus
virginianus clavium) in Monroe County, Florida. The BO also identified an additional 3,510
acres of at -risk lands outside Monroe County's parcel layer not subject to the Rate of Growth
Ordinance (ROGO) program.
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
The County's boundary map land cover types containing suitable habitat for the Key deer
included all 13 land cover types. We also noted that potential habitat is present only in
unincorporated Monroe County (Lower Keys only).
Species Profile: The Key deer's historical range was thought to extend from Key Vaca to Key
West (Klimstra et al. 1978), although the current range is restricted to 20 to 26 islands within and
adjacent to the boundaries of the National Key Deer Refuge (NKDR) and the Great White Heron
National Wildlife Refuge. The largest concentration (about 75 percent of the overall population)
is found on Big Pine Key (Lopez et al., 2004a). The principal factor influencing the distribution
and movement of Key deer is the location and availability of freshwater. Key deer swim easily
between keys and use all islands in their range during the wet season, but suitable water is
available on only 13 of the 26 islands during the dry season (Folk 1991). Key deer use all habitat
types including pine rocklands, hardwood hammocks, buttonwood salt marshes, mangrove
wetlands, freshwater wetlands, and disturbed/developed areas (Lopez 2001). The deer use
uplands more than wetlands (Lopez et al. 2004b). Key deer use these habitats for foraging,
cover, shelter, fawning, and bedding. Pine rocklands hold freshwater year round and are
especially important to Key deer survival. About 34 percent of the range is pine rocklands and
hardwood hammocks (Lopez et al. 2004c), and over 85 percent of fawning occurs in these two
habitats (Hardin 1974). Five of 26 islands occupied by Key deer have significant pine rocklands.
Key deer also use residential and commercial areas extensively where they feed on ornamental
plants and grasses and can seek refuge from biting insects.
The greatest number of at -risk parcels (4,925 parcels or 60 percent) are on Big Pine and No
Name Keys. The Service issued a Section 10(a)(1)(B) Incidental Take Permit (ITP) to Monroe
County, Florida Department of Transportation, and Florida Department of Community Affairs in
June 2006 for adverse effects from development on Big Pine and No Name Keys. The ITP
authorizes take of 4 Key deer per year and 168 acres of Key deer habitat. The take will be
Key Deer Species Assessment Guide
incidental to land clearing for development and recreational improvements. The Service issued
the ITP to the applicants based upon their development of a Habitat Conservation Plan (HCP)
that sets guidelines for development activities on Big Pine and No Name Keys to occur
progressively over the permit period (20 years). The HCP provides avoidance, minimization,
and mitigation measures to offset impacts to covered species, including the Key deer. Mitigation
includes the protection of three mitigation units for each development unit of suitable habitat
within the plan area.
Threats: The principle threat to Key deer is native habitat loss and fragmentation due to
development (Klimstra et al., 1974). Fencing associated with development may cause direct Key
deer habitat loss by preventing access to areas used for breeding, feeding, and sheltering. Native
habitat that is fenced is no longer available for use by the Key deer and the fencing may block
access to other areas. Residential and commercial development over the past 20 years has
increased the number of vehicles and vehicular traffic in the Keys. This additional traffic has
increased the likelihood of Key deer/vehicle collisions
Assessment Guide: In order to provide assistance in assessing threats to the Key deer from a
given project, the Service has developed the following guidance and recommendations that, if
implemented, will minimize adverse effects to the Key deer. If the use of this guide results in a
determination of "no effect" for a particular project, the Service supports this determination. If
the use of this guide results in a determination of "not likely to adversely affect" (NLAA), the
Service concurs with this determination and no additional correspondence is necessary. If the
use of this guide results in a "may affect" determination, then additional coordination with the
Service is necessary prior to permit issuance. For projects that result in a "may affect"
determination, if, after reviewing the specific project and assessing its potential effects to
federally listed species, the Service determines that the project will result in take, the Service will
notify FEMA and the acreage of impacts will be subtracted from the take limits provided in the
BO. This guide is subject to revision as necessary.
A. Parcel is not in the species focus area and/or on the Real Estate (RE) parcel list.... no effect
- - Parcel is in the species focus area or on the RE parcel list.................................go to B
B. Parcel is on Big Pine Key or No Name Key .................................. may affect (refer to HCP)
Parcel is not on Big Pine Key or No Name Key...........................................................go to C
C. Parcel includes one of referenced permanent freshwater sources................................go to D
Notas above......................................................................................go to E
D. The applicant's proposed action does not restrict access to the referenced permanent
freshwater...................................................................................................... go to E
Not as above................................................................................. may affect
E. Parcel is mapped as containing only non-native habitat (developed land, undeveloped land,
impervious surfaces, or exotic).................................................................go to H
May 20, 2012 2
Key Deer
Species Assessment Guide
Parcel is mapped as containing native habitat (hammock, pineland, scrub mangrove,
freshwater wetland, salt marsh, buttonwood, mangrove, or beach berm)................go to F
F. The proposed action will not remove or modify native habitat ................................... go to H
The proposed action will remove or modify native habitat. A vegetation survey is required
to document the native plant species and size present on the property and a general
description of the surrounding properties within 500 feet is also required. Once complete ...
.......................................................................................................................................go to G
G. The property is less than 1 acre and/or is not adjacent to contiguous native habitat greater
than 1 acre AND the applicant has proposed either on -site or off -site habitat compensation*
commensurate with the amount of native habitat lost . ................................. go to H
The property contains and/or is adjacent to contiguous native habitat greater than 1 acre in
size AND/OR the applicant is not proposing habitat compensation* or the proposed habitat
compensation* does not meet minimum compensation requirements............ may affect
H. The proposed action does not include fencing or includes fencing that complies with the
attached key -deer friendly fencing guidelines ................................................ NLAA
The proposed action includes fencing that is not compliant with the attached key -deer
friendly fencing guidelines. Habitat fragmented by non -compliant fencing will be
considered a deduction from the not -to -exceed habitat acreage losses referenced in the
BO.............................................................................................. may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
May 20, 2012 3
Key Deer
Species Assessment Guide
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for the Key
deer, it is important for FEMA and the NFIP participants to monitor the number of permits and
provide information to the Service regarding the number of permits issued. In order to meet the
reporting requirements in the BO, we request that FEMA and/or the NFIP participants send to
the Service an annual database summary consisting of: project date, permit number, project
acreage, native impact acreage, amount of acres and/or number of trees/plants replaced as habitat
compensation, and project location in latitude and longitude in decimal degrees.
Literature Cited
Folk, M.L. 1991. Habitat of the Key deer. Ph.D. Dissertation. Southern Illinois Univ.,
Carbondale, Illinois.
Hardin, J.W. 1974. Behavior, socio-biology, and reproductive life history of the Florida Key
deer, Odocoileus virginianus clavium. Ph.D. Dissertation. Southern Illinois University;
Carbondale, Illinois.
Klimstra, W.D., J.W. Hardin, and N.J. Sihey. 1978. Population ecology of Key deer. Pages 313-
321. In: P.H. Oehser and J. S. Lea (eds.) Research Reports, 1969. National Geographic
Society; Washington, D.C.
Klimstra, W.D., J.W. Hardin, N.J. SiIvy, B.N. Jacobson, and V.A. Terpening. 1974. Key deer
investigations final report: December 1967 - June 1973. U.S. DOI, Fish and Wildlife
Service, National Key Deer Refuge; Big Pine Key, Florida.
Lopez, R.R. 2001. Population ecology of Florida Key deer. Ph.D. Dissertation. Texas A&M
University, College Station, Texas.
Lopez, RR, N.1. Silvy, B.L. Pierce. P.A. Frank, M.T. Wilson, and K.M. Burke. 2004a.
Population density of the endangered Florida Key deer. Journal of Wildlife Management
68(3):570-575.
Lopez, R R., N. 1. Silvy, B. L. Pierce, P. A. Frank, M. T. Wilson, and K. M. Burke. 2004b.
Population density of the endangered Florida Key deer. Journal of Wildlife Management.
68(3):570-575.
May 20, 2012 4
Key Deer
Species Assessment Guide
Lopez, R.R, N.J. Silvy, RN. Wilkens, P.A. Frank, M.1. Peterson, and M.N. Peterson. 2004c.
Habitat -use patterns of Florida Key deer: implications of urban development. Journal of
Wildlife Management 68(4):900-908.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science,
Inc.St. Petersburg, Florida
May 20, 2012
Key Deer
Species Assessment Guide
4 Ws 11 so Do WWWWQ 1 II
May 2012
The Key deer is a federally -listed endangered species endemic to the Lower Florida Keys. Loss
of habitat is the major threat to the future of the Key deer. Nearly half of the islands in the range
of the deer are currently inhabited by people, and eight have large subdivisions and commercial
areas. Habitat degradation and fragmentation have reduced the Key deer's distribution and
affected behavior. Habitat fragmentation from fencing and development restricts deer
movements, creating bottlenecks that interfere with their ability to reach permanent water and
feeding areas and often forcing them to cross roads in areas of heavy traffic where they are
susceptible to roadkill. Vehicular strikes are the greatest known source of deer deaths, and
typically account for about 70 percent of all known deaths.
Fencing of private property throughout the range of the Key deer is currently regulated by the
Monroe County Comprehensive Plan and Land Development Regulation (114-20), with more
stringent rules in effect for Big Pine and No Name Keys (114-20(c)). Specific deer -friendly
design standards are incorporated in the code and include fence setbacks from roadways and
maximum fencing allowances under various zoning and habitat conditions. As fencing of private
lands throughout the range of the Key deer proceeds, comprehensive fencing guidelines are
needed that recognize the needs of the private citizens and the cumulative impacts of fencing on
the Key deer herd.
To this end, we are applying the Monroe County Comprehensive Plan and Land Development
Regulation below, in its entirety, to Big Pine and No Name Keys. For other islands with parcels
that fall within the Key deer focus area, we are applying items b. through f, of Sec. 114-20(c)
(below). Only a minor segment of the Key deer population (about 10%) occurs outside of Big
Pine and No Name Keys, and there are no prior records of negative fencing effects on Key deer
on other islands where habitat occurs in large, native patches and is less likely to be fragmented
by fencing.
Monroe County Big Pine and No Name Keys Fencing Regulations 114-20(c)
Sec.114-20(c). Big Pine and No Name Key.
The purpose of this section is to recognize and provide for the particular habitat needs of the
Florida Key Deer (Odocoileus virginianus clavium) on Big Pine Key and No Name Key so that
deer movement throughout Big Pine Key and No Name Key is not hindered while allowing for
reasonable use of minimal fencing for the purposes of safety and protection of property. In
addition to all other standards set forth in this section, all fences located on Big Pine Key and No
Name Key shall meet the standards of this subsection as listed below:
a. In the improved subdivision (IS) land use district, fences shall be set back as follows:
May 20, 2012 6
Key Deer
Species Assessment Guide
On canal lots, fences shall be set back at least 15 feet from the edge of abutting
street rights -of -way; and built to the edge of all other property lines or as approved
through a U.S. Fish and Wildlife Service coordination letter; and
2. On all other lots, fences shall be set back at least 15 feet from the edge of abutting
street rights -of -way, at least five feet from side property lines and at least ten feet
from the rear property line, or as approved through a U.S. Fish and Wildlife
Service coordination letter.
b. In all other land use districts, fences may enclose up to a maximum of and not to exceed
the net buildable area of the parcel only.
C. Enclosure of the freshwater wetlands by fences is prohibited.
d. All fences shall be designed and located such that Key Deer access to native habitat,
including pinelands, hammocks, beach berms, salt marshes, buttonwoods and mangroves
is maintained wherever possible.
e. All fences shall be designed and located such that Key Deer corridors, as identified by the
U.S. Fish and Wildlife Service, shall be maintained.
f. Fences shall not be permitted without a principal use except where the enclosed area
consists of disturbed lands or disturbed land with exotics.
May 20, 2012
Key Tree -Cactus Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 5,607 at -risk parcels, representing 2,322
acres, intersecting habitats that may support populations of Key tree -cactus (Pilosocereus
robinii) in Monroe County. There are 1,725 acres and 4,101 at -risk parcels in unincorporated
Monroe County; 300 acres and 779 parcels in Islamorada; 5 acres and 5 parcels in Key Colony
Beach; 43 acres and 102 parcels in Key West; less than 1 acre and 1 parcel in Layton; and 249
acres and 579 parcels in Marathon. The BO also identified an additional 436 acres of at -risk
lands outside Monroe County's parcel layer not subject to the Rate of Growth Ordinance
program.
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
The County's boundary map land cover types containing suitable habitat for the Key tree -cactus
include hammock and beach berm. Beach berm cover types were included as this mapping unit
could also include small inclusions of tropical hardwood hammock.
Species Profile: As of 2009, the known distribution of this species is restricted to seven
populations on four islands of the Florida Keys including Big Pine Key, Long Key, Lower
Matecumbe Key, and Upper Matecumbe Key (Adams and Lima 1994; Service 1999; Maschinski
2009; Florida Natural Areas Inventory 2008). Six of seven populations are located on lands
protected through acquisition or agreements (Maschinski et al. 2009). One is located on private,
developable property currently used for aquaculture.
Long distance dispersal and establishment of new tree -cactus populations are dependent upon the
production of seed. However, reproduction within a single population (a clump) is mostly, if not
entirely, vegetative (asexual). Seed dispersal by birds (Cardinalis cardinalis, for example) is
indicated for this species (Austin 1980). Given the Key tree -cactus' preference for naturally
disturbed patches of hammock and the fact that these patches are subject to change as a result of
natural succession and disturbance events, predicting where a new population may be found is
problematic.
The preferred habitat for the Key tree -cactus is naturally disturbed patches in hammock (Avery
[no date], Small 1917, 1921). It grows only on lightly shaded, upland sites on a limerock
substrate. This habitat is not common in the Florida Keys, and, furthermore, is transient in
nature. The location and number of these patches changes with time as disturbed areas re -grow
and new sites are disturbed (e.g., from tropical weather events). The primary cause for the
cactus' rarity seems to be its rather restrictive habitat requirements.
Key tree -cactus
Species Assessment Guide
Threats: In the Florida Keys, the primary threat to the Key tree -cactus is native habitat loss and
fragmentation due to development, although much of the suitable protected habitat is currently
unoccupied. Natural disasters such as hurricanes and drought can have a significant effect.
Assessment Guide: In order to provide assistance in assessing threats to the Key tree -cactus from
a given project, the Service has developed the following guidance and recommendations that, if
implemented, will minimize adverse effects to the species. If the use of this guide results in a
determination of "no effect" for a particular project, the Service supports this determination. If
the use of this guide results in a determination of "not likely to adversely affect" (NLAA) for the
Key tree -cactus, the Service concurs with this determination and no additional correspondence is
necessary. If the use of this guide results in a "may affect" determination, then additional
coordination with the Service is necessary prior to permit issuance. For projects that result in a
"may affect" determination, if, after reviewing the specific project and assessing its potential
effects to federally listed species, the Service determines that the project will result in take, the
Service will notify FEMA and the acreage of impacts will be subtracted from the take limits
provided in the BO. This guide is subject to revision as necessary.
A. Parcel is not in the species focus area and/or on the Real Estate (RE) parcel list.....no effect
Parcel is in the species focus area or is on the RE parcel list.................................go to B
B. The property is within a developed subdivision and adjacent lots and properties
within 500 feet are greater than 60 percent developed or scarified . ............................ AZAA
Notas Above.................................................................................................................go to C
C. The applicant proposes no removal or modification of the Key tree -cactus' native habitat
(i.e., hammock or beach berm).................................................................NLAA
The applicant proposes removal or modification of the Key tree -cactus' native habitat (i.e.,
hammockor beach berm)...........................................................................................go to D
D.—The proposed action will remove the Key tree -cactus' native habitat. A vegetation survey
is required to document plant species and size present prior to construction impact. A
general description of the surrounding properties within 500 feet is also required. Once
complete, based on the survey:
The Key tree -cactus is not present on the property ............................................... E
The Key tree -cactus is present on the property ........................................ may affect
E. The property is less than 1 acre and/or is not adjacent to contiguous native habitat greater
than 1 acre. The applicant has proposed either on -site or off -site habitat compensation*
commensurate with the amount of native habitat lost. Permit with habitat
compensation*.................................................................................... NLAA
The property contains and/or is adjacent to contiguous native habitat greater than 1 acre in
size AND/OR the applicant is not proposing habitat compensation* or the proposed habitat
compensation* does not meet minimum compensation requirements............ may affect
May 20, 2012 2
Key tree -cactus
Species Assessment Guide
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
The "take" (removal) of plants on private property is not a violation of the Act (unless State law
also prohibits take). Therefore, authorization to "take" plants on private property is not required
under section 10(a)(1)(B) nor exempted under section 7. However, Federal agencies are required
under section 7(a)(2) to make sure that their actions do -not jeopardize the continued existence of
listed plants. Therefore, to monitor the Key tree -cactus populations and avoid jeopardy to the
species from FEMA's actions, the Service, in coordination with FEMA, will monitor the amount
of habitat impacted by proposed actions as a surrogate for avoiding jeopardy of the Key tree -
cactus.
For the Service to monitor cumulative effects for the Key tree -cactus, it is important for FEMA
and the NFIP participants to monitor the number of permits and provide information to the
Service regarding the number of permits. In order to meet the reporting requirements in the BO,
we request that FEMA and/or the NFIP participants send to the Service an annual database
summary consisting of project date, permit number, project acreage, native impact acreage,
amount of acres and/or number of trees/plants replaced as habitat compensation, and project
location in latitude and longitude in decimal degrees.
May 20, 2012 3
Key tree -cactus
Species Assessment Guide
Literature Cited
Adams, R.M. and A. X. Lima. 1994. The natural history of the Florida Keys tree cactus, Pilosocereus
robinii. Unpublished Report prepared for the U.S. Fish and Wildlife Service; Jacksonville,
Florida.
Austin, D.F. 1980. Cereus robinii var. robinii and Cereus robinii var. deeringii. In:
D.F. Austin, C.E. Naumann, and B.E. Tate (eds.) Endangered and threatened plant species
survey in Southern Florida and the National Key Deer and Great White Heron National Wildlife
Refuges. U.S. DOI, Fish and Wildlife Service, Endangered Species Office; Atlanta, Georgia.
Florida Natural Areas Inventory (FNAI). 2008. Element Tracking Summary. Tallahassee, Florida.
Maschinski, J., J.L. Goodman, and D. Powell. 2009. Assessment of Population Status and Causes of
Decline for Pilosocereus robinii (Lem.) Byles & G.D. Rowley in the Florida Keys. Final Report
to U.S. Fish and Wildlife Service, South Florida Ecological Services Office, Vero Beach, FL.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science, Inc.St.
Petersburg, Florida
U.S. Fish and Wildlife Service. 1999. South Florida multi -species recovery plan. Atlanta, Georgia.
May 20, 2012 4
Key Largo Woodrat and Key Largo Cotton Mouse Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 3,261 at -risk parcels, representing 977
acres, intersecting habitats that may occasionally be used by the Key Largo woodrat and/or the
Key Largo cotton mouse, all within unincorporated Monroe County. The BO also identified an
additional 287 acres of at -risk lands outside Monroe County's parcel layer not subject to the Rate
of Growth Ordinance (ROGO) program. In addition, the BO noted that the ROGO program
would allow for the construction of 153 new residences (with a potential for 139 associated cats);
77 residences (70 cats) in potentially suitable Key Largo woodrat and/or cotton mouse habitat
and 76 residences (69 cats) in adjacent buffer lands. New residences in the buffer areas may
have an indirect effect on predation of the Key Largo woodrat and/or cotton mouse due to
associated free -roaming cats (see Tables 19, EA-8a and EA-8b in the BO).
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
The County's boundary map land cover types containing suitable habitat for the Key Largo
woodrat and cotton mouse included undeveloped land, hammock, and beach berm. Undeveloped
land and beach berm cover types were included as these mapping units could also include small
inclusions of tropical hardwood hammock. Based on the mapping, there are 413 parcels,
representing 251 acres in North Key Largo and 2,848 parcels, representing 1,013 acres in South
Key Largo.
The Key Largo woodrat and cotton mouse occupy the same area of the Keys and have nearly
identical habitat requirements. Suitable habitat is tropical hardwood hammock in North Key
Largo, north of the U.S. 1 and S.R. 905 intersection, and tropical hardwood hammock extending
south of this intersection to South Key Largo, but not including Tavernier. Although suitable
hardwood hammock exists in South Key Largo, there have been no documented occurrences of
either woodrats or cotton mice on South Key Largo in recent years.
Species Profile: The Key Largo cotton mouse builds leaf -lined nests in logs, tree hollows, and
rock crevices. The entrances measure 1.2 to 3.5 inches in diameter. The cotton mouse often
partially covers entrances with leaves or bark. Their holes are usually located at the bases of
trees, or near or in woodrat nests. They also use recently burned areas where bracken fern
(Pteridium aquilinum) dominates ground layers (Goodyear 1985).
The Key Largo cotton mouse feeds on leaves, buds, seeds, and fruits. They breed throughout the
year and produce two to three litters annually. The average litter is four and the cotton mouse's
Key Largo woodrat and Key Largo cotton mouse Species Assessment Guide
average life expectancy is 5 months. However, individuals may live for 2 to 3 years (Service
2009).
Key Largo woodrats are active climbers, seem to have definite trails, and often use fallen trees to
move over the forest floor. They, like other members of the genus Neotoma, have a habit of
building large stick nests. Woodrats construct their nests out of sticks, twigs, and various other
objects that they assemble into mounds that can reach 4 feet high and 6 to 7 feet in diameter.
They frequently build their nests against a stump, fallen tree, or boulder and may use old sheds,
abandoned cars, rock piles, and machinery as nest sites. Their nests have several entrances and a
single, central nest chamber.
Key Largo woodrats feed on a variety of leaves, buds, seeds, and fruits. They are capable of
reproducing all year, although there are seasonal peaks. Reproductive activity is highest during
the summer and lowest during the winter. Litter sizes range from one to four although a litter
typically contains two young. Females can produce two litters per year, with both sexes reaching
sexual maturity in about 5 months. The life expectancy of the Key Largo woodrat is unknown,
but is probably similar to other subspecies of N. floridana, which may live for 3 years, but
probably averages less than 1 year in the wild.
Threats: The Key Largo woodrat and cotton mouse were formerly distributed throughout Key
Largo, but are now restricted to hardwood hammocks on North Key Largo (Frank et al. 1997).
The majority of high quality hammock available on North Key Largo has been protected through
acquisition and is being managed for conservation by the Service and State of Florida. Because
of these efforts and current land use regulations in place by Monroe County, the threat of
occupied habitat loss from development on North Key Largo is low.
Contiguous tracts of hammock remain on South Key Largo, but no longer appear to support
these species (Frank et al. 1997). Brown (1978 and 1978b) and Hersh (1981) attributed the
possible extirpation of the cotton mouse in South Key Largo to land clearing and development.
In addition, predation by feral and domestic cats is also suspected (Frank et al. 1997). However,
given the historic presence of the species in this area, the secretive nature of these species and the
lack of systematic trapping on South Key Largo, the Service considers these habitats suitable and
potentially occupied.
Assessment Guide: In order to provide assistance in assessing threats to the Key Largo woodrat
and cotton mouse from a given project, the Service has developed the following guidance and
recommendations that, if implemented, will minimize adverse effects to these species. If this
guide results in a determination of "no effect," the Service supports this determination. If this
guide results in a determination of "not likely to adversely affect" (NLAA) for these species and
a cat brochure is provided, then the Service concurs and no additional correspondence is
necessary. If the use of this guide results in a "may affect" determination, then additional
coordination with the Service is necessary prior to permit issuance. For projects that result in a
"may affect" determination, if, after reviewing the specific project and assessing its potential
effects to federally listed species, the Service determines that the project will result in take, the
Service will notify FEMA and the acreage of impacts will be subtracted from the take limits
provided in the BO. This guide is subject to revision as necessary.
May 20, 2012 2
Key Largo woodrat and Key Largo cotton mouse Species Assessment Guide
A. Parcel is located in the species focus area or on the Real Estate (RE) parcel list......go to B
Parcel is located in the buffer area (a zone extending 500 meters [1,641 feet] from the focus
area). If a parcel is mapped as being both within the species focus area and the buffer zone,
it should be wholly considered a species focus area....................................................go to F
Parcel is not in the species focus area, the buffer area, or on the RE parcel list ...... no effect
B. Parcel is in the species focus area in North Key Largo. The Service will examine the site -
specific parameters of the habitat and proposed development ..........................may affect
Parcel is in South Key Largo...................................................................go to C
C. The applicant proposes no removal or modification of these species' native habitat
(hammock, beach berm, and native habitat in the undeveloped lands classification)..
........................................................................................................NLAA
The applicant proposes removal or modification of these species' native habitat (hammock,
beach berm, and native habitat in the undeveloped lands classification). A vegetation
survey is required to document the native plant species and size present on the property and
a general description of the surrounding properties within 500 feet is also required. Once
these have been completed..................................................................................... go to D
D. The property is within a canal subdivision or developed subdivision and adjacent lots and
properties within 500 feet are greater than 60 percent developed or scarified.............NLAA
The property is not as above and contains and/or is adjacent to contiguous native habitat for
these species greater than 1 acre in size. Further coordination with the Service is necessary
and a small mammal survey may be required..........................................may affect
Native habitat (hammock, beach berm, and native habitat in the undeveloped lands
classification) will be impacted but neither of the above apply to the property ......... go to E
E. The applicant has proposed either on -site or off -site habitat compensation* commensurate
with the amount of native habitat lost.........................................................NLAA
The applicant is not proposing habitat compensation* or habitat compensation* does not
meet minimum compensation requirements..............................................may affect
F. Parcel is within a canal subdivision and is separated by a canal, open water, or US-1 from
these species' native habitat in the buffered woodrat/cotton mouse focus area OR the parcel
is adjacent to less than 1 acre of these species' native habitat in the buffered woodrat/cotton
mouse focus area. Provide cat brochure.................................................................NLAA
The parcel is not as above..................................................................... go to G
May 20, 2012
Key Largo woodrat and Key Largo cotton mouse Species Assessment Guide
G. The applicant proposes the construction of a new residence that is not part of a deed -
restricted community where enforceable cat restrictions exist........................go to H
Proposal is for actions other than a new residence OR is for a residence that is part of a
deed -restricted community where enforceable cat restrictions exist. Provide cat brochure
.......................................................................................................1VLAA
H. The new residence is proposed in the buffer area, does not result in a cumulative loss of
species habitat, and the total number of new residential permits issued in buffer lands has
not exceeded 76. Provide cat brochure..................................take exempted in BO,
additional consultation with the Service not required
The proposed new residence in the buffer exceeds the limits of take in the 2010 BO
(76 residences)............................................................................ may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for these
species, it is important for FEMA and the NFIP participants to monitor the number of permits
and provide information to the Service regarding the number of permits issued. In order to meet
May 20, 2012 4
Key Largo woodrat and Key Largo cotton mouse Species Assessment Guide
the reporting requirements in the BO, we request that FEMA and/or the NFIP participants send
to the Service an annual database summary consisting of. project date, permit number, project
acreage, native impact acreage, amount of acres and/or number of trees/plants replaced as habitat
compensation, and project location in latitude and longitude in decimal degrees.
Literature Cited
Brown, L.N. 1978a. Key Largo cotton mouse. Pages 10-11. In: J.N. Layne (ed.) Rare and
endangered biota of Florida, Volume 1: Mammals. University Presses of Florida;
Gainesville, Florida.
Brown, L.N. 1978b. Key Largo woodrat. Pages 11-12. In: J.N. Layne (ed.) Rare and endangered
biota of Florida, Volume 1: Mammals. University Presses of Florida; Gainesville,
Florida.
Frank, P.A. H.F. Percival, and B. Keith. 1997. A status survey for the Key Largo woodrat and
Key Largo cotton mouse on North Key Largo, Monroe County, Florida. Unpublished
report, U.S. Fish and Wildlife Service, Vero Beach, Florida.
Goodyear, N.C. 1985. Results of a study of Key Largo woodrats and cotton mice: Phase I, spring
and summer 1985. Unpublished report to North Key Largo Study Committee.
Hersh, S.L. 1981. Ecology of the Key Largo woodrat (Neotoma floridana smalli). Journal of
Mammalogy 62(1):201-206.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science, Inc.
St. Petersburg, Florida
U.S. Fish and Wildlife Service. 2009. Key largo cotton mouse, 5-year status review. Atlanta,
Georgia.
May 20, 2012 5
Lower Keys Marsh Rabbit Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 3,710 at -risk parcels, representing 4,331
acres, intersecting habitats that may occasionally be used by the endangered Lower Keys marsh
rabbit (LKMR; Sylvilagus palustris hefneri) in Monroe County. The BO also identified an
additional 1,427 acres of at -risk lands outside Monroe County's parcel layer not subject to the
Rate of Growth Ordinance (ROGO) program. In addition, the BO noted that the ROGO program
would allow for the construction of 871 new residences (with a potential for 787 associated cats);
296 residences (268 cats) in potentially suitable LKMR habitat and 575 residences (520 cats) in
adjacent buffer lands. New residences in the buffer areas may have an indirect effect on
predation of the LKMR due to associated free -roaming cats (see Tables 19, EA-1 la and EA-1 lb
in the BO).
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
The County's boundary map land cover types containing suitable habitat for the LKMR included
pinelands, scrub mangrove, freshwater wetland, salt marsh, buttonwood, and beach berm. We
also noted that potential habitat is present only in unincorporated Monroe County (Lower Keys
only).
Species Profile: The LKMR's historic range extended from Big Pine Key to Key West,
encompassing a linear distance of about 30 miles. It occurs on some of the larger keys from
Boca Chica, just north of Key West, to Big Pine Key. The LKMR is habitat specific, depending
upon a transition zone of grasses and sedges for feeding, shelter, and nesting. The majority of
potential suitable habitat areas lie in transitional zones between marine environments and
uplands. The current population estimate is about 500 rabbits in the Lower Florida Keys (Perry,
personal communication, 2006). Although habitat loss is responsible for the original decline of
the LKMR, high mortality from predation from feral cats has also occurred and may be the
greatest current threat. Feral cat control is an ongoing operation on Naval Air Station Key West
(NASKW) and lands within the National Key Deer Refuge (NKDR). However, feral cat control
activities outside NASKW and the NKDR are unknown.
Typical LKMR habitat includes wetlands with a dense herbaceous cover that is dominated by a
mixture of grasses, sedges, and forbs. This community is considered a transitional plant
community that is similar in form and species composition to comparable communities
interspersed among the mangrove forests of mainland Florida (Forys and Humphrey 1994).
Forys (1995) concluded that marsh rabbits spend most of their time in the mid -marsh (seaside
Lower Keys marsh rabbit
Species Assessment Guide
oxeye) and high -marsh (cordgrasses and marsh fimbry) and avoid areas with mature
buttonwoods and high canopy cover.
Marsh rabbits have been documented to feed on at least 19 different plant species (Forys 1995).
However, the most abundant species in the rabbit's diet is seashore dropseed, glassworts,
cordgrass, seaside oxeye, red mangrove, and white mangrove.
Marsh rabbits are sexually mature at about 9 months of age. During this time, the majority of the
males disperse. Sexually maturing females are not as likely as males to disperse. Like other
marsh rabbit subspecies, LKMRs are polygamous, and generally breed throughout the year
(Holler and Conway 1979). Although LKMRs do not display an apparent seasonal breeding
pattern (Service 1994), the highest proportion of females with litters occurs in March and
September; the lowest proportion occurs in April and December.
The Service issued a Section 10(a)(1)(B) Incidental Take Permit (ITP) to Monroe County,
Florida Department of Transportation, and Florida Department of Community Affairs
(applicants) in June 2006 for adverse effects from development on Big Pine and No Name Keys.
The ITP was issued to the applicants based upon their development of a Habitat Conservation
Plan (HCP) that sets guidelines for development activities on Big Pine and No Name Keys to
occur progressively over the permit period (20 years). The take will be incidental to land
clearing for development and recreational improvements. The HCP provides avoidance,
minimization, and mitigation measures to offset impacts to covered species. Mitigation includes
the protection of three mitigation units for each development unit of suitable habitat within the
plan area.
The HCP includes specific development restrictions in LKMR habitat and within a 1,640-foot
(500 meter) buffer surrounding this habitat. The distance of 1,640-feet is based on the use of
upland areas by this species and the estimated distance domestic cats will travel from their
homes (Frank, personal communication, 1996). The ITP does not authorize incidental take of
suitable marsh rabbit habitat, but does authorize incidental take of up to 40 acres of buffer lands
surrounding suitable marsh rabbit habitat. Since incidental take of suitable marsh rabbit habitat
was not exempted in the Big Pine and No Name HCP, the potential direct, indirect, and
cumulative effects of NFIP actions on at -risk marsh rabbit habitat were addressed in the 2010
FEMA BO.
Threats: The LKMR is vulnerable to predation by free -roaming cats, habitat loss and
degradation, fire suppression, vehicular traffic, hurricanes, sea level rise, fire ants, and exotic
constrictor snakes. The greatest threats to the continued existence of the LKMR are predation by
cats, habitat loss and degradation, and hurricanes (Service 2007). These threats not only directly
affect the viability of local subpopulations, but also reduce the probability of successful dispersal
among the increasingly fragmented habitats. Connectivity among suitable habitat patches is
necessary for LKMR dispersal among patches (Forys and Humphrey 1999), and dispersal is a
necessary process if rabbit metapopulations are to remain self -sustainable.
Assessment Guide: In order to provide assistance in assessing threats to the LKMR from a given
project, the Service has developed the following guidance and recommendations that, if
May 20, 2012 2
Lower Keys marsh rabbit
Species Assessment Guide
implemented, will minimize adverse effects to this species. If this guide results in a
determination of "no effect," the Service supports this determination. If this guide results in a
determination of "not likely to adversely affect" (NLAA) for these species and a cat brochure is
provided, then the Service concurs and no additional correspondence is necessary. If the use of
this guide results in a "may affect" determination, then additional coordination with the Service
is necessary prior to permit issuance. For projects that result in a "may affect" determination, if,
after reviewing the specific project and assessing its potential effects to federally listed species,
the Service determines that the project will result in take, the Service will notify FEMA and the
acreage of impacts will be subtracted from the take limits provided in the BO. This guide is
subject to revision as necessary.
A. Parcel is located in the species focus area or on the Real Estate (RE) parcel list ........ go to B
Parcel is located in the buffer area (a zone extending 500 meters [1,641 feet] from the focus
area). If a parcel is mapped as being both within the species focus area and the buffer zone,
it should be wholly considered as being in the species focus area...............................go to F
Parcel is not in the species focus area, the buffer area, or on the RE parcel list ...... no effect
B. Parcel is on Big Pine Key or No Name Key .................................. may affect (refer to HCP)
Parcel is not on Big Pine Key or No Name Key....................................................go to C
C. The applicant proposes no removal or modification of this species' native habitat
(pinelands, scrub mangrove, freshwater wetland, salt marsh, buttonwood, and beach
berm).........................................................................................................................go to H
The applicant proposes removal or modification of this species' native habitat (pinelands,
scrub mangrove, freshwater wetland, salt marsh, buttonwood, and beach berm). A
vegetation survey is required to document the native plant species and size present on the
property and a general description of the surrounding properties within 500 feet is also
required. Once -these have been completed ................................................... go to D
D. The property is within a canal subdivision or developed subdivision and adjacent lots and
properties within 500 feet are greater than 60 percent developed or
scarified.......................................................................................... go to F
The property is not as above and contains and/or is adjacent to contiguous tracts of this
species' native habitat greater than 1 acre in size. Further coordination with the Service is
necessary and a LKMR survey may be required.............................................may affect
Native habitat (pinelands, scrub mangrove, freshwater wetland, salt marsh, buttonwood,
and beach berm) will be impacted but neither of the above apply to the property......go to E
E. The applicant has proposed either on -site or off -site habitat compensation* commensurate
with the amount of native habitat lost........................................................go to G
May 20, 2012
Lower Keys marsh rabbit
Species Assessment Guide
The applicant is not proposing habitat compensation or habitat compensation does not meet
minimum compensation requirements ..................................................may affect
F. Parcel is within a canal subdivision and is separated by a canal, open water or US-1 from
this species' native habitat in the buffered LKMR focus area OR the parcel is adjacent to
less than 1 acre of this species' native habitat in the buffered LKMR focus area. Provide
catbrochure...........................................................................................................NLAA
The parcel is not as above.................................................................. go to G
G. The applicant proposes the construction of a new residence that is not part of a deed -
restricted community where enforceable cat restrictions exist ...........................go to H
Proposal is for actions other than a new residence OR is for a residence that is part of a
deed -restricted community where enforceable cat restrictions exist. Provide cat brochure
.......................................................................................................NLAA
H. The new residence is proposed in the species focus area, does not result in a cumulative
loss of species habitat, and the total of new residential permits issued in the focus area
lands has not exceeded 296. Provide cat brochure........take exempted in BO, additional
consultation with the Service not required
The new residence is proposed in the buffer area and the total number of new residential
permits issued in buffer lands has not exceeded 575. Provide cat brochure.
......................take exempted in BO, additional consultation with the Service not required
The proposed new residence exceeds the limits of take in the 2010 BO (296 residences in
the focus area, 575 residences in buffer lands)........................................may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
May 20, 2012 4
Lower Keys marsh rabbit
Species Assessment Guide
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for the
LKMR, it is important for FEMA and the NFIP participants to monitor the number of permits
and provide information to the Service regarding the number of permits issued. In order to meet
the reporting requirements in the BO, we request that FEMA and/or the NFIP participants send
to the Service an annual database summary consisting of. project date, permit number, project
acreage, native impact acreage, amount of acres and/or number of trees/plants replaced as habitat
compensation, and project location in latitude and longitude in decimal degrees.
Literature Cited
Forys, E.A. 1995. Metapopulations of marsh rabbits: a population viability analysis of the Lower
Keys rabbit (Sylvilagus palustris hefneri). Ph.D. Thesis. University of Florida;
Gainesville, Florida.
Forys, E.A. and S.R. Humphrey. 1994. Biology and status of the Lower Keys marsh rabbit.
Final Report, Contract No. N62467-90-C-0766. Florida Game and Fresh Water Fish
Commission, Tallahassee, Florida.
Forys, E.A. and S.R. Humphrey. 1999. Use of population viability analysis to evaluate
management options for the endangered Lower Keys marsh rabbit. Journal of Wildlife
Management 63:251-260.
Frank, P. 1996. Personal Communication. Biologist. Florida Game and Fresh Water Fish
Commission, Cudjoe Key, Florida
Holler, N.R. and C.H. Conaway. 1979. Reproduction of the marsh rabbit (Sylvilagus palustris) in
South Florida. Journal of Mammalogy 60:768-777.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science, Inc.
St. Petersburg, Florida
Perry, N.D. 2006. Personal communication. Texas A&M University. College Station.
May 20, 2012 5
Lower Keys marsh rabbit
Species Assessment Guide
U.S. Fish and Wildlife Service. 1994. Recovery Plan for the Lower Keys marsh rabbit. U.S. Fish
and Wildlife Service; Atlanta, Georgia.
U.S. Fish and Wildlife Service. 2006. Biological Opinion. Big Pine and No Name Keys Habitat
Conservation Plan. Monroe County, Florida. Atlanta, Georgia.
U.S. Fish and Wildlife Service. 2007. Lower Keys marsh rabbit, 5-year status review. Atlanta,
Georgia.
May 20, 2012 6
Schaus Swallowtail Butterfly Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 4,312 at -risk parcels representing 1,414
acres, intersecting habitats that may be used by the Schaus swallowtail butterfly (Heraclides
aristodemus ponceanus) in Monroe County. Specifically, we noted that potential habitat is
present in unincorporated Monroe County and in the Village of Islamorada. There are 411
parcels with potential habitat representing 247 acres, in North Key Largo; 2,846 parcels,
representing 725 acres, in South Key Largo; and 1,055 parcels, representing 442 acres, in
Islamorada. The BO also identified an additional 349 acres of at -risk lands outside of Monroe
County's parcel layer not subject to the Rate of Growth Ordinance program.
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
The County's boundary map land cover types containing suitable habitat for the Schaus
swallowtail butterfly include undeveloped land, hammock, and beach berm. Undeveloped land
and beach berm cover types were included as these mapping units could also include small
inclusions of tropical hardwood hammock.
Species Profile: The Schaus swallowtail butterfly is a large blackish -brown swallowtail butterfly
with contrasting markings that are mostly dull yellow (Klots 1951, Pyle 1981, Opler and Krizek
1984). This subspecies is most easily confused with the giant swallowtail (Papilio cresphontes),
which is widespread in eastem North_Amedca and occurs_in habitat occupied by the Schaus
swallowtail butterfly. Although 30 different wild plant species may be exploited (Emmel 1988,
1995a) as a nectaring food source, only torchwood (Amyris elemifera) and wild lime
(Zanthoxylum fagara) are known to be used by larvae for development. Nectaring activity
usually occurs on blossoms of wild coffee (Psychotria nervosa), guava (Psidium guajava), or
cheese shrub, also known as yellowroot (Morinda royoc). Adults may fly in clearings and along
roads and trails, or even out over the ocean for short distances (Rutkowski 1971, Brown 1973),
but typically remain in the hammocks proper and rarely feed in areas open to direct sunlight
(Service 1982, Rutkowski 1971).
Suitable habitat for the Schaus swallowtail butterfly is tropical hardwood hammock in the
northern Keys (north Key Largo through Upper Matecumbe Key). Within this area, the Schaus
swallowtail appears to be restricted to northern Key Largo, as well as a few islands within
Biscayne National Park. However, potential suitable habitat within the subspecies' historic
range extends southward to the Matecumbe Keys in Islamorada. Schaus swallowtail butterflies
have rarely been reported south of northern Key Largo in recent years, but occupancy has not
Schaus swallowtail butterfly
Species Assessment Guide
been assessed on a frequent or widespread basis (Service 2008). The amount of suitable habitat
undoubtedly fluctuates depending on hurricanes, wildfires, and subsequent vegetation
succession, but the primary upland habitat is hardwood hammocks.
Threats: Contiguous tracts of hammock remain on South Key Largo and portions of Upper
Matecumbe Key, but no longer appear to support the Schaus swallowtail butterfly (Salvato,
personal communication, 2006). However, the Service considers these habitats potentially
suitable for this subspecies. The reasons these lands likely no longer support the subspecies are
not known. A wide array of factors may be contributing to the lack of occupancy including use
of mosquito control pesticides (Service 2008). Prior to human influences, populations of this
butterfly were probably subject to naturally occurring population depressions caused by
hurricane damage, drought, and rare freezes (Covell 1976).
Assessment Guide: In order to provide assistance in assessing threats to the Schaus swallowtail
butterfly, the Service has developed the following guidance and recommendations that, if
implemented, will minimize adverse effects to the Schaus swallowtail butterfly. If the use of this
guide results in a determination of "no effect" for a particular project, the Service supports this
determination. If the use of this guide results in a determination of "not likely to adversely
affect" (NLAA) for the Schaus swallowtail butterfly, the Service concurs with this determination
and no additional correspondence is necessary. If the use of this guide results in a "may affect"
determination, then additional coordination with the Service is necessary prior to permit
issuance. For projects that result in a "may affect" determination, if, after reviewing the specific
project and assessing its potential effects to federally listed species, the Service determines that
the project will result in take, the Service will notify FEMA and the acreage of impacts will be
subtracted from the take limits provided in the BO. This guide is subject to revision as
necessary.
A. Parcel is not in the species focus area or on the Real Estate (RE) parcel list.......... no effect
Parcel is in the species focus area or is on the RE parcel list.................................go to B
B. The applicant proposes no removal or modification of the Schaus swallowtail butterfly's
native habitat (i.e., beach berm, hammock, and native habitat in the undeveloped lands
classification)......................................................................................NLAA
The applicant proposes removal or modification of the Schaus swallowtail butterfly's
nativehabitat......................................................................................go to C
C. The proposed action will impact the Schaus swallowtail butterfly's native habitat. A
vegetation survey is required to document the native plant species and size present on the
property and a general description of the surrounding properties within 500 feet is also
required.
The property is in North Key Largo. The Service will examine the site -specific parameters
of the habitat and proposed development...............................................may affect
The property is in South Key Largo or Islamorada........................................go to D
May 20, 2012 2
Schaus swallowtail butterfly
Species Assessment Guide
D. The property is within a developed subdivision and adjacent lots and properties within 500
feet are greater than 60 percent developed or scarified.....................................NLAA
Notas above.......................................................................................go to E
E. The vegetation survey documents the presence of torchwood, wild lime, and any of the
above referenced nectaring food source plant species (wild coffee, guava, or cheese
shrub/yellowroot) and the parcel is adjacent to contiguous tracts of this species' native
habitat greater than 1 acre in size .........................................................may affect
The property is not as above.......................................................................................go to F
F. The property is less than 1 acre and/or is not adjacent to contiguous native habitat greater
than 1 acre. The applicant has proposed either on -site or off -site habitat compensation*
commensurate with the amount of native habitat lost. Permit with habitat
compensation*.................................................................................... NLAA
The property contains and/or is adjacent to contiguous native habitat greater than 1 acre in
size AND/OR the applicant is not proposing habitat compensation* or the proposed habitat
compensation* does not meet minimum compensation requirements............ may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
May 20, 2012 3
Schaus swallowtail butterfly
Species Assessment Guide
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for the
Schaus swallowtail butterfly, it is important for FEMA and the NFIP participants to monitor the
number of permits and provide information to the Service regarding the number of permits
issued. In order to meet the reporting requirements in the BO, we request that FEMA and/or the
NFIP participants send to the Service an annual database summary consisting of. project date,
permit number, project acreage, native impact acreage, amount of acres and/or number of
trees/plants replaced as habitat compensation, and project location in latitude and longitude in
decimal degrees.
Literature Cited
Brown, L.N. 1973. Populations of Papilio andraemon bonhotei Sharpe and Papilio aristodemus
ponceanus Schaus in Biscayne National Monument Florida. Journal of the
Lepidopterists' Society 27(2):136-140.
Covell, C.V., Jr. 1976. The Schaus swallowtail: a threatened subspecies? Insect World Digest
3(59):21-26.
Emmel, T. C. 1985. Status survey of the Schaus swallowtail in Florida in 1984. Technical Report
No. 145, Florida Cooperative Fish and Wildlife Research Unit, University of Florida,
Gainesville.
Emmel, T.C. 1986. Status survey and habitat requirements of Florida's endemic Schaus
swallowtail butterfly. Florida Game and Fresh Water Fish Commission. Final Report
GFC-84-028. Tallahassee.
Emmel, T.C. 1988. Habitat requirements and status of the endemic Schaus swallowtail in the
Florida Keys. Florida Game and Fresh Water Fish Commission, nongame Wildlife
Section; Tallahassee, Florida.
Emmel, T. C. 1995. Designated species management plan for the reintroduction of the Schaus
swallowtail butterfly in the Florida Keys. University of Florida, Gainesville, Florida.
Klots, A.B. 1951. A field guide to the butterflies of North America east of the Great Plains.
Houghton Mifflin Co.; Boston, MA.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science, Inc.
St. Petersburg, Florida
Opler, P.A. and G.N. Krizek. 1984. Butterflies east of the Great Plains. Johns Hopkins Univ.
Press, Baltimore, MD.
May 20, 2012 4
Schaus swallowtail butterfly
Species Assessment Guide
Pyle, R.M. 1981. The Audubon Society field guide to North American butterflies. Chanticleer;
New York, New York.
Rutkowski, F. 1971. Observations on Papilio aristodemus ponceanus (Papilionidae). Journal of
the Lepidopterists' Society. 25(2):126-136.
Salvato M., Personal communication. 2006. U.S. Fish and Wildlife Service, Vero Beach,
Florida
U.S. Fish and Wildlife Service. 1982. Schaus Swallowtail Butterfly Recovery Plan. Atlanta,
Georgia.
U.S. Fish and Wildlife Service. 2008. Schaus swallowtail butterfly, 5-year status review,
Atlanta, Georgia
May 20, 2012 5
Silver Rice Rat Critical Habitat Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 644 at -risk parcels (representing 1,316
acres) that: (1) are located within designated critical habitat for the endangered silver rice rat
(rice rat) (Or
yzomys palustris natator [ O. arQentatusll and Q may contain the critical habitat's
constituent elements. The BO also identified an additional 466 acres of at -risk lands outside
Monroe County's parcel layer not subject to the Rate of Growth Ordinance program.
Critical habitat for the rice rat includes areas containing mangrove swamps, salt marsh flats, and
buttonwood transition vegetation. The major constituent elements of this critical habitat that
require special management considerations or protection are:
(1) mangrove swamps containing red mangrove, black mangrove, white mangrove, and
buttonwood;
(2) salt marshes, swales, and adjacent transitional wetlands containing saltwort, perennial
glasswort saltgrass, sea ox-eye, Key grass and
(3) coastal dropseed and freshwater marshes containing cattails, sawgrass, and cordgrass.
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
- - The County's boundary map land cover types containing critical habitat constituent elements for
the rice rat include six habitat classifications. These land cover types include scrub mangrove,
freshwater wetland, salt marsh, and buttonwood. We also noted that potential habitat is present
only in unincorporated Monroe County (Lower Keys only).
Critical Habitat Profile: The Service's designated critical habitat for the rice rat includes all
lands and waters above mean low tide on the following Keys: Little Pine, Big Torch, Middle
Torch, Johnston, Raccoon, and the Water Keys. In addition, it includes Summerland Key north
of U.S. 1, and the Saddlebunch Keys south of U.S. 1; but not lands in Township 675, Range 27E,
Section 8, nor the northern 115 of Section 17 (50 CFR 17.95) (Service 1993). The critical habitat
boundary encompasses an area of about 9,362 acres, all of which falls within unincorporated
Monroe County. Within the designated boundary, only 8,532 acres have the constituent
elements required to be critical habitat for the rice rat.
Critical habitat only affects Federal agency actions and does not apply to private or local or State
government activities that are not subject to Federal authorization or funding. Federal agencies
Silver Rice Rat Critical Habitat Species Assessment Guide
that may be affected by the designation of silver rice rat critical habitat include, but is not limited
to the Service (National Key Deer Refuge [NKDR]), Corps, FEMA, U.S. Navy, and the Federal
Highway Administration. Seven of the nine Keys in critical habitat are within the NKDR
boundaries. Although the NKDR is managed for Key deer, the habitat requirements and
biological needs of the two species do not conflict (Service 2006).
Threats: The primary threat to rice rat critical habitat is degradation and loss of wetland habitat
(Barbour and Humphrey 1982). Construction activities typically result in the direct loss of
habitat as well as secondary effects that extend into surrounding habitats. Related secondary
effects include habitat fragmentation.
Assessment Guide: In order to provide assistance in assessing threats to rice rat critical habitat,
the Service has developed the following guidance and recommendations that, if implemented,
will minimize adverse effects to silver rice rat critical habitat. If the use of this guide results in a
determination of "no effect" for a particular project, the Service supports this determination. If
the use of this guide results in a determination of "not likely to adversely affect (NLAA)" for a
particular project and the applicant is provided with a copy of the cat brochure, then the Service
concurs with this determination and no additional correspondence is necessary. If the use of this
guide results in a "may affect" determination, then additional coordination with the Service is
necessary prior to permit issuance. For projects that result in a "may affect" determination, if,
after reviewing the specific project and assessing its potential effects to federally listed species,
the Service determines that the project will result in take, the Service will notify FEMA and the
acreage of impacts will be subtracted from the take limits provided in the BO. This guide is
subject to revision as necessary.
A. Parcel is not located within designated rice rat critical habitat and/or on the Real Estate
(RE) Parcel list..................................................................................no effect
Parcel is located within designated silver rice rat critical habitat or is on the RE parcel list
.............................................................................................................................. go to B
B. The applicant proposes no removal or modification of the rice rat's native habitat (scrub
mangrove, freshwater wetland, salt marsh, or buttonwood).................................NLAA
The applicant proposes removal or modification of the rice rat's native habitat ........ go to C
C. The proposed action will remove or modify the rice rat's native habitat. A vegetation
survey is required to document the native plant species and size present on the property and
a general description of the surrounding properties within 500 feet is also required.
The property is less than 1 acre and/or is not adjacent to contiguous native habitat greater
than 1 acre AND the applicant has proposed either on -site or off -site habitat compensation
commensurate with the amount of native habitat lost. Permit with habitat compensation*,
provide cat brochure.........................................................................NLAA
The property contains and/or is adjacent to contiguous native habitat greater than 1 acre in
size AND/OR the applicant is not proposing habitat compensation* or habitat
compensation* does not meet minimum compensation requirements .............. may affect
May 20, 2012 2
Silver Rice Rat Critical Habitat
Species Assessment Guide
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for the silver
rice rat critical habitat, it is important for FEMA and the NFIP participants to monitor the
number of permits and provide information to the Service regarding the number of permits
issued. In order to meet the reporting requirements in the BO, we request that FEMA and/or the
NFIP participants send to the Service an annual database summary consisting of. project date,
permit number, project acreage, native impact acreage, amount of acres and/or number of
trees/plants replaced as habitat compensation, and project location in latitude and longitude in
decimal degrees.
May 20, 2012 3
Silver Rice Rat Critical Habitat
Species Assessment Guide
Literature Cited
Barbour, D.B. and S.R. Humphrey. 1982. Status and habitat of the Key Largo woodrat and
cotton mouse (Neotoma floridana smalli and Peromyscus gossypinus allapaticola).
Journal of Mammalogy 63(1):144-148.
U.S. Fish and Wildlife Service. 1993. Final Rule on the designation of critical habitat for the
silver rice rat. Federal Register 58(167):46030-4603)4.
U.S. Fish and Wildlife Service. 2006. Biological Opinion. FEMA's continued administration of
the NFIP in Monroe County, Florida. Atlanta, Georgia.
May 20, 2012 4
Silver Rice Rat Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 3,985 at -risk parcels, representing 4,134
acres, intersecting habitats that may occasionally be used by the endangered silver rice rat (rice
rat) (Orvzomys palustris natator l=0• argentatush in Monroe County. The BO also identified
an additional 3,358 acres of at -risk lands outside Monroe County's parcel layer not subject to the
Rate of Growth Ordinance (ROGO) program. The BO noted that the ROGO program would
allow for the construction of 871 new residences; 522 in potentially suitable rice rat habitat and
349 in adjacent buffer lands. New residences in the buffer areas may have an indirect effect on
predation of the rice rat due to associated free -roaming cats (see Tables 19, EA-14a and EA-14b
in the BO).
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
The County's boundary map land cover types containing suitable habitat for the rice rat include
hammock, pinelands, scrub mangrove, freshwater wetland, salt marsh, buttonwood, mangrove,
and beach berm. We also noted that potential habitat is present only in unincorporated Monroe
County (Lower Keys only).
Species Profile: The rice rat occurs on 13 islands in the Lower Keys: Big Pine, Little Pine,
Howe, Water, Middle Torch, Big Torch, Summerland, Raccoon, Johnston, Ramrod, Cudjoe,
Upper Sugarloaf, and Saddlebunch Keys (Vessey et al. 1976, Goodyear 1984, Wolfe 1987, Forys
et al. 1996, Perry 2006, Service 2008). Based on the availability of suitable habitat and
proximity to existing populations, the rice rat may also occur on several other islands in the
Lower Keys such as Little Torch. Range -wide surveys confirmed that rice rat populations are
not established on Boca Chica, Geiger, East Rockland or Big Coppit Keys (the islands that
encompass Naval Air Station Key West) (Perry 2006).
The rice rat is restricted to a narrow range of wetland habitat types. Populations are widely
distributed and occur at extremely low densities. Rice rats use low intertidal and low salt marsh
habitats during activity periods, and swales in the low salt marsh are primary foraging sites.
Buttonwood transitional salt marsh is at a higher elevation than other salt marsh habitats, and is
used for foraging and nesting (Goodyear 1987). Forys et al. (1996) found that the rice rat occurs
at comparable densities in both scrub and fringe mangrove communities. Mitchell (1996)
conducted additional work on rice rats and found that reproductive activity occurs in freshwater
habitat and that animals regularly use freshwater marsh on Big Torch Key.
Silver rice rat
Species Assessment Guide
Silver rice rats are generalized omnivores that eat a variety of plant and animal material (Wolfe
1982). The diet of the rice rat includes seeds of saltwort, mangroves, Borrichia spp., coconut
palm (Cocos nucifera), and invertebrates, including isopods (Spitzer 1983; Goodyear 1992).
However, they probably eat a greater variety of foods than those listed above.
A variety of ecological factors likely influence reproduction in rice rats throughout the year
(Wolfe 1982). The reproduction peak occurs after the wet season, from October to November.
The gestation period for rice rats is 21 to 28 days, with litter sizes ranging from 4 to 6. Spitzer
(1983) studied a pregnant female rice rat during winter and observed litter sizes of 3 to 5. The
average number of litters that are produced in a year has not been documented. Forys et al.
(1996) found that juvenile rice rats comprised only 14 percent of the total number of individuals
captured in their study. Although there is high survivorship of rice rats in the Keys, the low
proportion of juveniles in this population may indicate a low reproductive rate.
Threats: The primary threat to the rice rat is degradation and loss of wetland habitat (Barbour
and Humphrey 1982). Rice rats require expanses of high quality salt marsh habitat. They are
extremely limited in habitat occupancy, occurring in salt marsh and transitional buttonwood
habitats. Construction activities typically result in the direct loss of habitat, as well as secondary
effects that extend into surrounding habitats. Related secondary effects include habitat
fragmentation and an increase in the densities of black rats and domestic cats. Cats are predators
of rice rats and there is evidence of habitat competition between rice rats and black rats.
Assessment Guide: In order to provide assistance in assessing threats to the rice rat from a given
project, the Service has developed the following guidance and recommendations that, if
implemented, will minimize adverse effects to this species. If this guide results in a
determination of "no effect," the Service supports this determination. If this guide results in a
determination of "not likely to adversely affect" (NLAA) for these species and a cat brochure is
provided, then the Service concurs and no additional correspondence is necessary.. If the use of
this guide results in a "may affect" determination, then additional coordination with the Service
is necessary prior to permit issuance. For projects that result in a "may affect" determination, if,
after reviewing the specific project and assessing its potential effects to federally listed species,
the Service determines that the project will result in take, the Service will notify FEMA and the
acreage of impacts will be subtracted from the take limits provided in the BO. This guide is
subject to revision as necessary.
A. Parcel is located in the species focus area or on the Real Estate (RE) parcel list ........ go to B
Parcel is located in the buffer area (a zone extending 500 meters [1,641 feet] from the focus
area). If a parcel is mapped as being both within the species focus area and the buffer zone,
it should be wholly considered a species focus area....................................................go to F
Parcel is not in the species focus area, the buffer area, or on the RE parcel list ...... no effect
B. Parcel is on Big Pine Key or No Name Key
.............................may affect (refer to HCP)
May 20, 2012 2
Silver rice rat
Species Assessment Guide
Parcel is not on Big Pine Key or No Name Key....................................................go to C
C. The applicant proposes no removal or modification of this species' native habitat
(hammock, pinelands, scrub mangrove, freshwater wetland, salt marsh, buttonwood,
mangrove, and beach berm)..........................................................................................go to G
The applicant proposes removal or modification of this species' native habitat (hammock,
pinelands, scrub mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and
beach berm). A vegetation survey is required to document the native plant species and size
present on the property and a general description of the surrounding properties within 500
feet is also required. Once these have been completed ....................................... go to D
D. The property is within a canal subdivision or developed subdivision and adjacent lots and
properties within 500 feet are greater than 60 percent developed or scarified.......... go to F
The property is not as above and contains and/or is adjacent to contiguous tracts of this
species' native habitat greater than 1 acre in size. Further coordination with the Service is
necessary and a small mammal survey may be required...............................may affect
Native habitat (hammock, pinelands, scrub mangrove, freshwater wetland, salt marsh,
buttonwood, mangrove, and beach berm) will be impacted but neither of the above apply to
theproperty............................................................................................................go to E
E. The applicant has proposed either on -site or off -site habitat compensation* commensurate
with the amount of native habitat lost........................................................go to G
The applicant is not proposing habitat compensation or habitat compensation does not meet
minimum compensation requirements ....................................................may affect
F. Parcel is within a canal subdivision and is separated by a canal, open water or US-1 from
this species' native habitat in the buffered rice rat focus area OR the parcel is adjacent to
less than 1 acre of this species' native habitat in the buffered rice rat focus area. Provide
catbrochure........................................................................................................... NLAA
The parcel is not as above......................................................................go to G
G. The applicant proposes the construction of a new residence that is not part of a deed -
restricted community where enforceable cat restrictions exist ...........................go to H
Proposal is for actions other than a new residence OR is for a residence that is part of a
deed -restricted community where enforceable cat restrictions exist. Provide cat brochure
.......................................................................................................NLAA
H. The new residence is proposed in the species focus area, does not result in a cumulative
loss of species habitat, and the total of new residential permits issued in the focus area
May 20, 2012
Silver rice rat
Species Assessment Guide
lands has not exceeded 522. Provide cat brochure........take exempted in BO, additional
consultation with the Service not required
The new residence is proposed in the buffer area and the total number of new residential
permits issued in buffer lands has not exceeded 349. Provide cat brochure.
.....................take exempted in BO, additional consultation with the Service not required
The proposed new residence exceeds the limits of take in the 2010 BO (522 residences in
the focus area, 349 residences in buffer lands)......................................may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for the silver
rice rat, it is important for FEMA and the NFIP participants to monitor the number of permits
and provide information to the Service regarding the number of permits issued. In order to meet
the reporting requirements in the BO, we request that FEMA and/or the NFIP participants send
to the Service an annual database summary consisting of: project date, permit number, project
acreage, native impact acreage, amount of acres and/or number of trees/plants replaced as habitat
compensation, and project location in latitude and longitude in decimal degrees.
May 20, 2012 4
Silver rice rat Species Assessment Guide
Literature Cited
Barbour, D.B. and S.R. Humphrey. 1982. Status and habitat of the Key Largo woodrat and cotton mouse
(Neotoma floridana smalli and Peromyscus gossypinus allapaticola). Journal of Mammalogy
63(1):144-148.
Forys E.A., P.A. Frank, and R.S Kautz. 1996. Recovery actions for the Lower Keys marsh rabbit, silver
rice rat, and Stock Island tree snail. Final Report to Florida Game and Freshwater Fish
Commission, Cooperative Agreement No. 1448-0004-94-9164, Tallahassee, Florida.
Goodyear, N.C. 1984. Final report on the distribution, habitat, and status of the silver rice rat Oryzomys
argentatus Unpublished Report prepared for the U.S. Fish and Wildlife Service Under contract
No. 14-16-0604-83-57. Jacksonville, Florida.
Goodyear, N.C. 1987. Distribution and habitat of the silver rice rat, Oryzomys argentatus. Journal of
Mammalogy 68:692-695.
Goodyear, N.C. 1992. Spatial overlap and dietary selection of native rice rats and exotic black rats.
Journal of Mammalogy 73:186-200.
Mitchell, N.C. 1996. Silver rice rat status. Draft final report to Florida Game and Fresh Water Fish
Commission.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science, Inc. St.
Petersburg, Florida
Perry, N.D. 2006. Lower Keys marsh rabbit and silver rice rat: steps towards recovery. Master's Thesis,
Texas A&M University, College Station, Texas.
Spitzer, T.M. 1983. Aspects of the biology of the silver rice rat, Orymmys argentatus. M.S. Thesis.
University of Rhode Island, Kingston, RI
U.S. Fish and Wildlife Service. 2008. Silver rice rat, 5-year status review. Atlanta, Georgia.
Vessey, S.H., D.B. Meikle and S.R. Spaulding. 1976. Biological survey of Raccoon Key Florida: a
preliminary report to the Charles River Breeding Labs, Wilmington, Massachusetts.
Wolfe, J. L. 1982. Orymmys palustris. Mammalian Species, Special Publication of the American Society
of Mammalogists, 178:1-5.
Wolfe, J. L. 1987. A survey for the silver rice rat on U.S. Naval property in the Lower Florida Keys. Final
Report to Naval Facilities Engineering Division, Southern Division, Naval Air Station; Boca
Chica, Florida
May 20, 2012 5
Stock Island Tree Snail Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 5,607 at -risk parcels, representing 2,322
acres, intersecting habitats that may be used by the Stock Island tree snail (Orthalicus reses, not
incl. nesodr
yas in Monroe County. There are 1,725 acres and 4,101 at -risk parcels in
unincorporated Monroe County; 300 acres and 779 parcels in Islamorada; 5 acres and 5 parcels
in Key Colony Beach; 43 acres and 102 parcels in Key West; less than 1 acre and 1 parcel in
Layton; and 249 acres and 579 parcels in Marathon. The BO also identified an additional 436
acres of at -risk lands outside Monroe County's parcel layer not subject to the Rate of Growth
Ordinance program.
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
The County's boundary map land cover types containing suitable habitat for the Stock Island tree
snail include hammock and beach berm. Beach berm cover types were included as this mapping
unit could also include small inclusions of tropical hardwood hammock.
Species Profile: The Stock Island tree snail is an arboreal snail inhabiting hardwood hammocks
of the Keys (Deisler 1987). Its historic range includes the islands of Stock Island and Key West
(Voss 1976). Individuals of the species have since been relocated to other hammocks in the
Keys and the mainland. Today, populations of snails occur throughout the Keys in hardwood
hammocks. The Service has records of 27 populations, 25 in the Keys and 2 in mainland Miami -
Dade County (Service 2006). However, for most populations, the area occupied is poorly
defined (Service 2009). Survey and monitoring efforts have been limited and highly variable,
and methodologies are not usually reported in detail (Service 2009). Many of the known snail
populations are outside the snail's historic range at the extreme southern end of the Florida Keys.
Threats: Although the predominant threat described at the time of listing was habitat destruction
(Service 2009), much of the suitable protected habitat is currently unoccupied. Additional
threats include: non-native predators, inadequacy of existing regulatory mechanisms, climate
change, hurricane winds, right-of-way maintenance, and Key deer browsing. Natural disasters
such as hurricanes and drought can have a significant effect. The snails are also faced with
predation by invertebrate predators, such as fire ants (Service 2009).
Assessment Guide: In order to provide assistance in assessing threats to the Stock Island tree
snail from a given project, the Service has developed the following guidance and
recommendations that, if implemented, will minimize adverse effects to the Stock Island tree
snail. If the use of this guide results in a determination of "no effect" for a particular project, the
Stock Island tree snail
Species Assessment Guide
Service supports this determination. If the use of this guide results in a determination of "not
likely to adversely affect" (NLAA) for the Stock Island tree snail, the Service concurs with this
determination and no additional correspondence is necessary. If the use of this guide results in a
"may affect" determination, then additional coordination with the Service is necessary prior to
permit issuance. For projects that result in a "may affect" determination, if, after reviewing the
specific project and assessing its potential effects to federally listed species, the Service
determines that the project will result in take, the Service will notify FEMA and the acreage of
impacts will be subtracted from the take limits provided in the BO. This guide is subject to
revision as necessary.
A. Parcel is one of the 25 known locations of the Stock Island tree snail referenced in the BO
................................................................................................may affect
Parcel is in the species focus area or on the Real Estate (RE) parcel list (but not one of the
25 known locations)..............................................................................go to B
Parcel is not one of the 25 known locations of the Stock Island tree snail referenced in the
BO, is not in the species focus area and is not on the RE parcel list.................no effect
B. The property is within a developed subdivision and adjacent lots and properties
within 500 feet are greater than 60 percent developed or scarified . .............................. NLAA
The property is not as above and contains and/or is adjacent to contiguous hammock
greater than 1 acre in size. Further coordination with the Service is necessary....may affect
Hammock will be impacted but neither of the above apply to the property .................go to C
C. The applicant proposes no removal or modification of the Stock Island tree snail's native
habitat (hammock and beach berm).............................................................NLAA
The applicant proposes removal or modification of the Stock Island tree snail's native
habitat...............................................................................................go to D
D. The proposed action will remove or modify the Stock Island tree snail's native habitat. A
vegetation survey is required to document the native plant species and size present on the
property and a general description of the surrounding properties within 500 feet is also
required. Once these have been completed.................................................go to E
E. A negative Stock Island tree snail survey, following Service protocol, has been provided
and accepted as valid by the Service (i.e., Stock Island tree snails are not present). The
applicant has proposed either on -site or off -site habitat compensation* commensurate with
the amount of native habitat lost. Permit with habitat compensation*.................NLAA
A Stock Island tree snail survey documents presence, or habitat compensation* is either not
proposed or not sufficient................................................................ may affect
May 20, 2012 2
Stock Island tree snail
Species Assessment Guide
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for the Stock
Island tree snail, it is important for FEMA and the NFIP participants to monitor the number of
permits and provide information to the Service regarding the number of permits issued. In order
to meet the reporting requirements in the BO, we request that FEMA and/or the NFIP
participants send to the Service an annual database summary consisting of project date, permit
number, project acreage, native impact acreage, amount of acres and/or number of trees/plants
replaced as habitat compensation, and project location in latitude and longitude in decimal
degrees.
May 20, 2012
Stock Island tree snail
Species Assessment Guide
Literature Cited
Deisler, J.E. 1987. The ecology of the Stock Island Tree Snail (Orthalicus yeses yeses) (Say).
Bulletin Florida State Museum, Biological Science 31(3):107-145.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science, Inc.
St. Petersburg, Florida
U.S. Fish and Wildlife Service. 2006. Biological Opinion. FEMA's continued administration of
the NFIP in Monroe County, Florida. Atlanta, Georgia.
U.S. Fish and Wildlife Service. 2009. Stock Island tree snail, 5-year status review. Atlanta,
Georgia.
Voss, R.S. 1976.Observations on the Ecology of the Florida Tree Snail Liguus jasciatus
(Muller). Nautilus, 90:6569.
May 20, 2012
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ORDINANCE NO.
-2012
AN ORDINANCE BY THE MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS AMENDING CHAPTER
122 FLOODPLAIN REGULATIONS, CREATING
SECTION 122-8 PROVIDING FOR INCLUSION OF
UNITED STATES FEDERAL EMERGENCY
MANAGEMENT AGENCY (FEMA) AND UNITED
STATES FISH AND WILDLIFE SERVICE (FWS)
REQUIREMENTS IN PERMIT REFERRAL PROCESS
IMPLEMENTATION AND DETERMINATIONS;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
REPEAL OF CONFLICTING PROVISIONS; PROVIDING
FOR TRANSMITTAL TO THE STATE LAND PLANNING
AGENCY AND THE SECRETARY OF STATE;
PROVIDING FOR CODIFICATION; PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the National Flood Insurance Program (NFIP) is a Federal program enabling
property owners in participating communities to purchase flood insurance in exchange for the
community's adoption of floodplain management regulations to reduce future flood damages; and
WHEREAS, in 1990 the National Wildlife Federation, Florida Wildlife Federation, and the
Defenders of Wildlife filed suit against the Federal Emergency Management Agency (FEMA)
claiming FEMA was not consulting with the U.S. Fish and Wildlife Service (FWS or Service) as
required by the Endangered Species Act in their administration of the National Flood Insurance
Program (NFIP) in Monroe County, Florida; and
WHEREAS, in 1997 the Service completed a Biological Opinion (BO) for the effects of the
NFIP on Federally listed (threatened or endangered) species in the Florida Keys; and
WHEREAS, the 1997 BO found the NFIP jeopardized nine species in the Keys; and
WHEREAS, in 2003 the Service re -initiated consultation and amended the 1997 BO and
concluded that the effect of the NFIP would result in jeopardy on eight of 10 species evaluated in the
BO; and
WHEREAS, in a second amended complaint in 2003 the plaintiffs filed suit against FEMA and
the Service pursuant to the Endangered Species Act and the Administrative Procedures Act; and
WHEREAS, on March 29, 2005 the United States District Court, Southern District of Florida
(District Court) granted summary judgment in favor of the Plaintiffs which found that the Service
and FEMA violated the Endangered Species Act and the Administrative Procedures Act; and
WHEREAS, on September 9, 2005, the District Court entered an order enjoining FEMA from
issuing flood insurance under the NFIP on any new residential or commercial developments in
suitable habitats of federally listed (threatened or endangered) species in the Keys; and
Page 1 of 16-
WHEREAS, the District Court also ordered the Service to submit a new BO by August 9, 2006.
The Service issued a new BO on August 8, 2006; and
WHEREAS, on April 1, 2008, the United States Court of Appeals for the Eleventh Circuit
affirmed the District Court's rulings of March 29, 2005 and September 9, 2005; and
WHEREAS, On February 26, 2009, the District Court ordered the Service to submit a new BO
by March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this deadline;
and
WHEREAS, on April 30, 2010, the Service published the revised BO for FEMA's administration
of the NFIP in Monroe County; and
WHEREAS, the BO contains "Reasonable and Prudent Alternatives" (RPA's) that 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 (referenced in RPA
paragraph 1) within 120 days of acceptance of this BO by the Court, and;
WHEREAS, on January 11, 2011, the District Court approved a Settlement Agreement between
the Plaintiffs and the Federal Defendants in which the Federal Defendants agreed to notify the
Court and the parties when Monroe County and the other "participating communities" in the Florida
Keys have: 1) revised their Flood Damage Prevention Ordinance(s); and 2) implemented procedures
to reference and use the updated real estate list and Species Focus Area Maps (referenced in
reasonable and prudent alternative ("RPA") paragraph 1) in compliance with paragraphs 2, 3, 4, and
5 of the RPA; and
WHEREAS, on December 2, 2011, FEMA notified Monroe County that if the County did not
implement the RPA's by January 11, 2012, then Monroe County would have been placed on
probation on May 10, 2012.1n response to the County's requested time extension, FEMA requested
and the Court granted an extension to June 30, 2012 for the ordinance revisions and permit referral
process implementation; and
WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
advised the Board that adoption of the RPA's; ordinance language; and originally drafted Species
Assessment Guides (SAGS) suggested by the Federal agencies would have resulted in increased
exposure to the County for liability for inverse condemnation or takings claims; and
WHEREAS, FEMA and the Service revised the SAGS to include provisions that substantially
reduce the County's potential exposure for liability for inverse condemnation or takings claims; and
WHEREAS, FEMA provided comments on the County's DRAFT Ordinance, transmitted by the
County to FEMA on various dates; and
WHEREAS, because the Florida Constitution prohibits the County from incorporating future
federal statutes and regulations into its existing ordinances, the County is unable to adopt the
"subsequent revisions" to the Species Focus Area Maps (SFAMs) or Species Assessment Guides
Page 2 of 16
(SAGs) into this ordinance as desired by FEMA, until the subsequent revisions are published and
adopted by the then sitting Board of County Commissioners pursuant to the process set forth in
Florida law; see, e.g., Abbott Laboratories v. Mylan Pharmaceuticals, 15 So.3d 642 (Fla. I" DCA
2009); and
WHEREAS, the County has revised said ordinance; and
WHEREAS, the Florida Legislature adopted Chapter 2012-205 Laws of Florida, effective July 1,
2012, which states:
"For any development permit' application filed with the county after July 1, 2012, a county may not
require as a condition of processing or issuing a development permit that an applicant obtain a
permit or approval from any state or federal agency unless the agency has issued a final agency
action that denies the federal or state permit before the county action on the local development
permit. Issuance of a development permit by a county does not in any way create any rights on the
part of the applicant to obtain a permit from a state or federal agency and does not create any
liability on the part of the county for issuance of the permit if the applicant fails to obtain requisite
approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that
result in a violation of state or federal law. A county may attach such a disclaimer to the issuance of
a development permit and may include a permit condition that all other applicable state or federal
permits be obtained before commencement of the development. This section does not prohibit a
county from providing information to an applicant regarding what other state or federal permits
may apply. "; and
WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
proposed an ordinance with alternative language to meet the RPAS, which is consistent with Federal
law, addresses Chapter 2012-205, Laws of Florida, and adequately protects the County taxpayers
against accepting that additional liability; and
WHEREAS, the September 9, 2005 District Court injunction will only be lifted by the Court if
the FWS Biological Opinion and Reasonable and Prudent Alternatives, which requires property
owners within the species focus areas and buffer areas to go through the Permit Referral Process, are
implemented by each of the participating communities; and
WHEREAS, any property owner has an obligation to comply with the Federal Endangered
Species Act; and
WHEREAS, the County has an obligation to comply with the Federal Endangered Species Act;
and
1 For the purposes of Chapter 2012-205 Laws of Florida, the definition of Development
Permit is: `Developmentpermit" includes any buildingpermit, zoningpermit,
subdivision approval, rezoning, certification, special exception, variance, or any other
official action of local government having the effect ofpermitting the development of
land.
Page 3 of 16
WHEREAS, subject to resolutions 420-2005; 166-2006; 185-2007; 219-2008 and 282-2011,
property owners are able to "toll" their building permits and ROGO allocations because they were
not eligible for flood insurance as a result of the September 9, 2005 District Court injunction; and
WHEREAS, the only way the Court will terminate the 2005 District Court injunction is if
participating communities comply with the BO RPA's; and
WHEREAS, this Ordinance is being adopted to provide owners with tolled building permits
and/or ROGO allocations a way to develop in a manner consistent with the Endangered Species Act
and that will be eligible for national flood insurance; and
WHEREAS, the Monroe County Planning Commission during a regular meeting held on April
25, 2012, reviewed, discussed and approved the Sr. Director of Planning and Environmental
Resources' recommendation to the Planning Commission for the revisions to Chapter 122 of the
Monroe County Land Development Code;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1. Section 122-2 of the Monroe County Land Development Code shall be amended as
follows: (additions are underlined; deletions are strieken gife)
Sec.122-2. General provisions.
(a) Applicability. Except as provided for the elevated portion of a nonconforming residential
structure by section 122-4(a) (10), no structure or manufactured home hereafter shall be located,
extended, converted or structurally altered and no development shall occur, without full compliance
with the terms of this chapter in addition to other applicable regulations, including, but not limited
to, 44 CFR 60.3(a)(2) of this ehaptff -
(b) Adoption of ffwps Basis for Establishing Special Flood Hazard Maps; Species Focus Area Mans
(SFAMs) with Species Focus Area Buffers and Federally Protected Species Area Real Estate (RE)
List,• and Species Assessment Guides (SAGs).
1_The areas of special flood hazard identified by the Federal Emergency Management Agency
(FEMA) in its Oe4ebef 1-T, 989 F a Inswaftee Study a W Height Analysis f r,reiffee
February 18, 2005 Maps wi� the most o at
offieialmaps -approved FEMA, with accompanying supporting data, and any revisions thereof,
are adopted by reference and declared to be a part of this chapter, and shall be kept on file, available
to the public, in the offices of the county Building Department. Letter of Map Amendments, Letter
of Map Revisions, Letter of Map Revision Based on Fill, and Conditional Letter of Map Revisions.
approved by FEMA are acceptable for implementation of this regulation.
2 Species Focus Area Maps (SFAMs) with Species Focus Area Buffers and Species Real Estate
(RE) List FEMA and FWS have provided the Species Focus Area Maps (SFAMs) mailed to
Monroe County and dated April 30 2011 and a listing of real estate numbers of parcels (RE list)
emailed to Monroe County and dated November 18 2011 that are within the SFAMs and that have
Page 4 of 16
been identified by FWS. The SFAMs and the RE List that are within the SFAMs identified by the
FWS in accordance with the Biological Opinion, dated April 30, 2010, as amended December 14
2010, are hereby declared to be a part of this ordinance. The SFAMs and RE list are on file at the
Monroe County Clerk's office and the Monroe County Growth Management Division Office.
3. Species Assessment Guides (SAGs). FEMA and FWS have provided the Species Assessment
Guides (SAGs) mailed to Monroe County and dated May 20, 2012. These SAGs are declared to be a
part of this ordinance. The SAGs are on file at the Monroe County Clerk's office and the Monroe
County Growth Management Division Office.
(c) Rules for interpreting flood hazard issues. The boundaries of the flood hazard areas shown on
the official flood insurance rate maps may be determined by scaling distances. Required
interpretations of those maps for precise locations of such boundaries shall be made by the
floodplain administrator, in consultation with the building official. In interpreting other provisions of
this chapter, the building official shall be guided by the current edition of FEMA's 44 CFR, and
FEMA's interpretive letters, policy statements and technical bulletins as adopted by resolution from
time to time by the Board of County Commissioners . Additionally, the building official shall also
obtain, review and reasonably use any base flood elevation and floodway data available from a
federal, state or other source, as criteria for requiring that new construction, substantial
improvements, and other developments meet the criteria required in the appropriate flood zone.
Section 2. Sec. 122-3 of the Monroe County Land Development Code shall be amended as
follows:
Sec.122-3. — Permit requirements.
(a) The following words, terms and phrases, when used in this chapter, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Adjacent to contiguous native habitat means an area of native habitat sharing a boundary at one or
more points of intersection with other native habitat. For purposes of this land development code,
an intervening road, right-of-way or easement shall not destroy the adjacency of the habitat.
However, U.S. 1, canals and open water shall constitute a break in adjacency.
Alteration means any change or modification in construction type, materials, or occupancy.
Base flood means the flood having a one percent chance of being equaled or exceeded in any given
year.
Basement means any area of the building having its floor subgrade (below ground level) on all
sides.
Development means any manmade change to improved or unimproved real estate, including, but
not limited to, buildings or other structures, clearing, mining, dredging, filling, grading, paving,
excavation or drilling operations or storage of equipment of or materials.
Page 5 of 16
Elevated building means a nonbasement building that has its lowest elevated floor raised above
ground level by foundation walls, shear walls, posts, piers, pilings, or columns.
Enclosure means that portion of an elevated building below the lowest elevated floor that is either
partially or fully shut in by rigid walls and used solely for limited storage, parking or entryways.
Enclosures shall not be constructed, equipped or used for habitational or other purposes.
Existing construction means structures for which the start of construction commenced before
January 1, 1975. Existing construction is also known as pre -FIRM structures.
Existing manufactured home park means a manufactured home park or subdivision for which the
construction of facilities for servicing the lots on which the manufactured homes are to be affixed
(including, at a minimum, the installation of utilities, the construction of the streets, and either final
site grading or the pouring of concrete pads is completed before January 1, 1975, and in which, at
the time of application, there are no site built residences or the park or subdivision is limited to
manufactured home by this chapter.
Finishing materials means anything beyond basic wall construction pursuant to the most recent
FEMA Technical Bulletin, which is normally associated with habitable space. Finishing materials
include, but are not limited to, ceiling mold, trim, baseboards, decorative finish work, wainscoting,
and textured woods.
Historic Structure means any structure that is:
(a) Listed individually in the National Register of Historic Places (a listing maintained by the
Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the
requirements for individual listing on the National Register;
(b) Certified or preliminarily determined by the Secretary of the Interior as contributing to the
historical significance of a registered historic district or a district preliminarily determined by the
Secretary to qualify as a registered historic district;
(c) Individually listed on state inventory of historic places in states with historic preservation
programs which have been approved by the Secretary of the Interior; or
(d) Individually listed on a County inventory of historic places in communities with historic
preservation programs that have been certified either:
(1) By an approved state program as determined by the Secretary of the Interior, or
(2) Directly by the Secretary of the Interior in states without approved programs.
Illegal Structure or Use means a structure or use that is not a legal structure or legal use as defined
in this chapter.
Legal Structure means a structure that was permitted by the floodplain regulation in effect at the
time construction commenced on the structure in its current configuration and received a permit or
final inspection or certificate of occupancy for the structure in its current configuration.
Legal Use means a use that was permitted by the floodplain regulations at the time the use
commenced on the property.
Page 6 of 16
Limited storage means that which is incidental and accessory to the principal use of the structure.
For example, if the structure is a residence, storage should be limited to items such as lawn and
garden equipment, tires, and other low damage items which will not suffer flood damage or can be
conveniently moved to the elevated part of the building. Flood insurance coverage for enclosures
below the Base Flood Elevation (BFE) is very limited.
Lowest Floor means the lowest floor of the lowest enclosed area (including basement). An
unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or
storage in an area other than a basement area is not considered a building's lowest floor; provided,
that such enclosure is not built so as to render the structure in violation of the applicable non -
elevation design requirements of this chapter.
Manufactured home means a structure, transportable in one or more sections, which is built on a
permanent chassis and designed to be used with or without a permanent foundation when connected
to the required utilities. The term also includes park trailer, travel trailers, and similar transportable
structures placed on a site for 180 consecutive days or longer and intended to be improved property.
Market value means the county property appraiser's value of the structure plus 20 percent. A
uniform appraisal report for determination of market value submitted by the applicant may be used
if the county building official considers such appraisal consistent with local construction costs.
Where appraisal is not accepted because it appears to be inconsistent with local construction costs
an applicant may request review by an independent third party appraiser duly authorized by the
county. The cost of independent review shall be borne by the applicant. The reviewing appraiser
shall determine if the appraisal value reasonably reflects an appropriate value of the structure. The
independent appraiser's determination shall be in writing. Professionals preparing appraisal shall be
required to possess certifications as state certified residential appraisers for appraising one to four
family residential properties and state certified general appraisers for all other properties including
commercial and multi -residential
New construction means those structures for which the start of construction commenced on or after
January 1, 1975. New construction is also knows as post -FIRM structures. These r-egWations.
adepted by the eoun4y jaauar-y 1, 1974 e&e based on the original maps published by the Fedefa4
Nonconforming structure means a below base flood elevation structure or a portion thereof such as
an enclosure materials with no openings, flood resistant materials), which was lawfully existing or
permitted, and is not fully compliant with the terms of this chapter. A nonconforming structure shall
remain subject to the terms of this chapter.
Notice to proceed means written authorization by the County Growth Management Division to the
permittee authorizing permitted development to begin.
Page 7 of 16
Pure manufactured home park means a manufactured home park that at the time of application has
no site -built residences or a park or subdivision which is limited to manufactured homes only by
this chapter.
Recreational vehicle means a vehicle that is:
(1) Built on a single chassis;
(2) Four hundred square feet or less when measured at the largest horizontal projection;
(3) Designed to be self-propelled or permanently towable by a light duty truck; and
(4) Designed primarily not for use as a permanent dwelling but as temporary living quarters
for recreational, camping, travel or seasonal use.
Start of construction means (for other than new construction or substantial improvements under the
Coastal Barrier Resources Act) includes substantial improvements, and means the date the building
permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation,
addition, placement or other improvement was within 180 days of the permit date. For substantial
improvements the actual start of construction means the first alteration of any wall, ceiling, floor, or
other structural part of a building whether or not the alteration affects the external dimensions of the
building. The actual start means either the first placement of permanent construction of a structure
on a site, such as the pouring of slab or footings the installation of piles the construction of
columns, or any work beyond the stage of excavation,• or the placement of a manufactured home on a
foundation. Permanent construction does not include land Preparation such as clearing grading and
filling; nor does it include the installation of streets and/or walkways; nor does it include excavation
for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include
the installation on the property of accessory buildings such as garages or sheds not occupied as
dwelling units or not part of the main structure.
Substantial damage means damage of any origin sustained by a structure whereby the cost of
restoring the structure to its before damaged condition would equal or exceed 50 percent of the
market value of the structure before the damage occurred. All structures that are determined to be
substantially damaged are automatically considered to be substantial improvements, regardless of the
actual repair work performed. If the cost necessary to fully repair the structure to its before damage
condition is equal to or greater than 50% of the structure's market value before damages, then the
structure must be elevated (or flood proofed if it is non-residential) to or above the Base Flood
Elevation (BFE), and meet other applicable NFIP requirements. Items that should not be ee
may be excluded from towffd the cost to repair include plans, specifications, survey costs, permit
fees, and other items which are separate from or- i3sidextal a the repair. Items that may also be
excluded should not be eeua4ed also includes demolition or emergency repairs (costs to temporarily
stabilize a building so that it's safe to enter to evaluate and identify required repairs) and
improvements to items outside the building, such as the driveway, septic systems, wells, fencing,
landscaping and detached structures.
Page 8 of 16
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Substantial improvement means any reconstruction, rehabilitation, addition, or other improvement of
a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before
the "start of construction" of the improvement. This term includes structures which have incurred
"substantial damage, "regardless of the actual repair work performed. The term does not, however,
include either:
1. Any project for improvement of a structure to correct existing violations of state or local health,
sanitary, or safety code specifications which have been identified by the local building official
and which are the minimum necessary to assure safe living conditions;, or
2. The cost of repairs required to remedy health safety and sanitary code deficiencies can be
deducted from the overall cost of an improvement, but only if:
a. an appropriate regulatory official such as a building official, fire marshal, or health
officer was informed about and knows the extent of the code related deficiencies, and
b. the deficiency was in existence prior to the damage event or improvement and will not be
triggered solely by the fact that the structure is being improved or repaired.
In addition for any repair required to meet health sanitary, and safety codes, only the
minimum necessary to assure safe living conditions should be deducted, including those
improvements required by Chapter 11 2012 Florida Accessibility Code. Costs of repairs that
are in excess of the minimum necessary for continued occupancy or use will be counted
toward the cost of the overall improvement; or
-2.3_Any alterations of a "historic structure," provided that the alteration will not preclude the
structure's continued designation as a "historic structure."
Floodplain management requirements for new construction apply to substantial improvements.
Supplemental Information for Substantial Improvement
The basic types of improvements the could be made to structures include but are not limited to afe
rehabilitations or reconstructions that do not increase square footage, and lateral or vertical
additions that do increase square footage.
Rehabilitation or reconstruction would be a partial or complete "gutting" and replacement of
internal workings and may or may not include structural changes. If this action is substantial, i.e.,
Page 9 of 16
over 50 percent of the structure's market value, it is considered new construction, and the entire
building must be elevated to or above the Base Flood Elevation (BFE) (or floodproofed if the
building is non-residential).
For a lateral addition, if the substantial improvement is to add a room or rooms outside the footprint
of the existing building, only the addition is required to be elevated to or above the BFE, i.e.; the
existing building does not have to be elevated. If the proposed lateral addition also includes
rehabilitation or remodeling of the existing building, then the whole project as a combination of
work must be considered. Vertical additions would require that the entire structure be elevated to or
above the BFE. Even though the improvement itself is entirely above the BFE, it is dependent on
the walls and foundation of the existing building for structural support.
(b) Except for work specifically exempted under chapter 6, the building official shall require
building permits/Floodplain Development Permits for all proposed construction or other
improvements within areas of special flood hazard. In addition to the standard requirements for a
building permit, an application for a building permit for construction or improvements within areas
of special flood hazard shall contain the information and certifications set forth in a form provided
by the Building Official.
(c) All building foundations shall rest directly on natural rock, on concrete piling driven to rock or
on friction piling (concrete or wood) and shall be anchored to such rock support by holes, 16 inches
in minimum diameter, augured into such rock a minimum depth of three feet and reinforced by a
minimum of four #5 vertical rods extending up into the piers above a minimum of 18 inches and
tied to the vertical steel of the pier. Wooden pilings shall be locked into 16-inch auger foundations
by at least a #5 rebar extending through the piling and three to five inches beyond.
(d) The permit holder shall provide a floor elevation after the lowest floor is completed or, in
instances where the structure is subject to the regulations applicable to coastal high -hazard areas,
after placement of the lowest horizontal structural members of the lowest floor. Floodproofing
certification for nonresidential structures in A -Zones shall be provided prior to a certificate of
occupancy or prior to final inspection.
(e) Within 21 calendar days of establishment of the lowest floor elevation, or upon placement of
the lowest horizontal structural members of the lowest floor, whichever is applicable, it shall be the
duty of the permit holder to submit to the building official a certification of the elevation of the
lowest floor within A zones or the lowest portion of the lowest horizontal structural members of the
lowest floor within V zones, whichever is applicable, as built in relation to mean sea level. Such
certification shall be prepared by or under the direct supervision of a registered land surveyor or
professional engineer and certified by the same. When floodproofing is used for a building within A
zones, the certification shall be prepared by or under the direct supervision of a professional
engineer or architect and certified by same. Any work done within the 21-day period and prior to
submission of the certification shall be at the permit holder's risk. The building official shall review
the floor elevation survey data submitted. Deficiencies detected by such review shall be corrected
by the permit holder immediately and prior to further progressive work being permitted to proceed.
Failure to submit the survey or failure to make the corrections required hereby shall be causes to
issue a stop -work order for the project.
(f) The degree of flood protection required in this chapter is reasonable for regulatory purposes
and is based on scientific and engineering considerations. Larger floods can and will occur on rare
Page 10 of 16
occasions. Flood heights may be increased by manmade or natural causes. This chapter does not
imply that land outside the areas of special flood hazard or uses permitted within such areas will be
free from flooding or flood damages. This chapter shall not create liability on the part of the
county or any officer or employee thereof for any flood damages that result from reliance on this
chapter or any administrative decision lawfully made thereunder.
Section 3. The Monroe County Land Development Code is amended by adding Section 122-8
as follows:
Sec. 122-8. Inclusion of United States Federal Emergency Management Agency (FEMA) and
United States Fish and Wildlife Service (FWS) Required Permit Referral Process (PRP) in
Final Permit Determinations for Development
U
regulations, proper record retention, coordination, and notification of FEMA and FWS
regarding_ permit applications filed with or issued by Monroe County, inclusive of
FEMA/FWS requirements agreed to by the applicant.
bb) Lands to which this Section apply. See Section 122-2 (b) 2.
(cc) Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on the
FWS SFAMs may be determined by scaling distances. Required interpretations of those
maps for precise locations of such boundaries shall be made by the County Planning
Director or his/her designee, in consultation with the building official.
Administration of Development Approval in Species Focus Areas.
1. SFAM Review Required. For parcels or lots shown within the
SFAMs in which an application for development permit has been made,
if the SFAM indicates the parcel or lot contains only unsuitable habitat
for any of the following species: Key Largo Cotton Mouse, Key Largo
woodrat, Key tree -cactus, Lower Keys marsh rabbit, Eastern indigo
snakes Key deer, Schaus swallowtail butterfly, silver rice rate, and Stock
Island tree snail, and the parcel or lot is not listed on the RE list, the
Planning Director or his/her designee shall provide for a notation in the
development application permit files that indicates:
a. The name of the official that reviewed the development
application for FWS requirements;
b. The date of the review,
c. The date of the SFAM and RE list used to conduct the
review.
Once the review has established that a parcel or lot contains
unsuitable habitat, action may be taken on the permit application for
development by Monroe Coggty staff.
Page 11 of 16
2 FWS Technical Assistance Permit Requirements. For
parcels or lots shown within the SFAMs in which an application for a
permit for development has been made including 1) expanding the
footprint of a structure,• and/or 2) expanding clearing in habitat (including
native vegetation removal)• and/or 3) placement of fencing into key deer
habitat if the SFAM indicates the parcel or lot contains suitable habitat
for any of the following species: Key Largo Cotton Mouse, Key Largo
wood rat Key tree -cactus Lower Keys marsh rabbit, Eastern indigo
snake Key deer, Schaus swallowtail butterfly, silver rice rat, and/or
Stock Island tree snail and the parcel or lot is listed on the RE list, the
Planning_ Director or his/her designee shall use the SAGS to determine
whether a floodplain development permit application requires:
a. incorporation of FWS SAG requirements as conditions
into the Monroe County permit and the County may issue the
permit, pursuant to all applicable codes; or
b. if, according to the SAGs, the proposed development
needs technical assistance by the Service, the County shall issue
the permit in accordance with Chapter 2012-205, Laws of Florida,
indicating a Notice to Proceed must be obtained prior to any
construction removal of vegetation, or commencement of
development, with a condition that:
i. the applicant seek and obtain technical assistance from
the Service: and
ii. the applicant obtain, prior to the issuance of the Notice
to Proceed all applicable state or federal permits or
approvals pursuant to Section 122-2 (a); and
iii. In accordance with the Florida Building Code and
Monroe County Section 6-103 (b), the permit shall
Mire after 180 days; and
iv. If the permit expires the applicant shall be required to
reapply for the permit.
c For a floodplain development permit application that
requires the Services' technical assistance, Monroe County shall
provide the application to the Service weekly. Based on the
Services technical assistance the applicant shall submit the FWS
written requirements to the County. If the applicant agrees to the
FWS requirements in writing Monroe County may then issue a
NOTICE TO PROCEED that includes the technical assistance
requirements provided by the federal agency to avoid possible
impacts on federally listed (threatened or endangered) species, as
conditions in the Monroe County permit.
d. For a development permit application that requires
mitigation and/or compensation for adverse effects to native
Page 12 of 16
habitat, monetaa compensation generated will be applied to
restoration and/or purchase of native habitat.
e. The County shall maintain an applicant acceptance
form, of the Service requirements, in the permit file.
f. For pumoses of this Chapter the Notice to Proceed shall
be written authorization from the Monroe County Growth
Management Division to the permittee that the permitted
development activities may begin.
g. If the parcel is within an area previously covered by a
Habitat Conservation Plan, and where that Habitat Conservation
Plan has expired at the time of development permit application,
the County shall apply this Permit Referral Process, unless
mitigation was completed for the associated impacts.
h. If the property owner does not agree to the FWS
technical assistance requirements to be included in the
development permit as conditions, the County shall not issue the
notice to proceed and shall rescind the previously issued
development permit.
3. Provision for Flood Hazard Reduction and Avoiding unpacts
on federally listed (threatened or endangered) species
Enforcement. All proposed development shall meet the conditions
established on the floodplain development permit and/or notice to
proceed, which includes FWS technical assistance requirements
included as conditions on the Monroe County development
permits, to avoid possible impacts on federally -listed species
(threatened or endangered). Violation of this Chapter, including
any development constructed not in accordance with the FWS
requirements, included as conditions on the Monroe County
development permit, derived through use of the SAGs or through
technical assistance by FWS, are hereby deemed to be violations
of the County Code and may be enforced utilizing the
administrative enforcement procedures set forth in Chapter 8,
Monroe County Code of Ordinances. Further, Section 118-11
shall be utilized to require environmental restoration standards.
4. Permit issuance for previously tolled Rate of Growth Ordinance
(ROGO) allocations, Non -Residential Rate of Growth Ordinance
(NROGO) allocations or building_ permits/Floodplain
Development Permits. Building_ permits and allocations have been
tolled under authority of Monroe County Resolutions 420-2005,
166-2006, 185-2007 & 219-2008 and 282-2011 as a result of the
injunction prohibiting FEMA from issuing flood insurance
Page 13 of 16
policies under the National Flood Insurance Program which was
imposed in the case of Florida Key Deer et. al.,v. Fuzate et. al.,
90-10037-CIV-Moore. In order for those persons whose
allocations or whose building permits were tolled to be eligble
for Federal flood insurance and meet their obligations under the
Federal Endangered Species Act, the following is required:
a. Owners with allocations who do not need coordination
with FWS after they are processed through the Permit
Referral Process:
1. Have 180 days from the date of e€-reiei-ef
fide--e€ a County issued written notice to
pick up their building_ permits-, or iske e�
4-greater
2. Have 300 days from the date of a countv issued
written notice, if there is a need to redesign an
onsite wastewater treatment system, to receive
a permit from the Department of Health(DOH)
and pick up their building_ permits.
Owners with buildinil permits who do not need
coordination with FWS after th2y are processed
through the Permit Referral Process:
1. Have 180 days from the date of of mgdifiea of
fife-date-ef a County issued written notice, to
recommence development and receive a passed
inspection., :or
2. Have 300 days from the date of a County
issued written notice, if there is a need to
redesign an onsite wastewater treatment system
to receive a permit from the DOH,
recommence development and receive a passed
inspection.
c. Permit applications processed through the Permit
Referral Process that result in a "may affect
determination" for the proposed development through
the application of the Species Assessment Guides
which require the permittee to coordinate with FWS
shall have a total of 360 days from the date of a
County issued written notice to conclude the required
coordination with FWS and pick up the building
permit, and receive a Notice to Proceed from Monroe
Page 14 of 16
County. This timeframe may be extended by the
Planning Director if the applicant can affirmatively
demonstrate that he has timely and actively sought
coordination.
d. Properties for which a Permit has been issued and
an hold for which development has not commenced
will be required to be processed through the Permit
Referral Process. Few -Permit reviews that result in a
"may affect determination" for the proposed
development through the application of the Species
Assessment Guides which require the permittee to
coordinate with FWS shall have a total of 360 days
from the date of a County issued written notice to
conclude the required coordination with FWS,
commence development and receive a passed
inspection from Monroe County. This timeframe may
be extended by the Planning Director if the applicant
can affirmatively demonstrate that he has timely and
actively sought coordination.
Section 4. Severability.
If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be
adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
impair, invalidate, or nullify the remainder of this Ordinance, but the effect thereof shall be
confined to the section, paragraph, subdivision, clause, sentence or provision immediately involved
in the controversy in which such judgment or decree shall be rendered.
Section 5. Conflicting Provisions.
In the case of direct conflict between any provision of this ordinance and a portion or provision of
any appropriate federal, state or county law, rule, code or regulation, the more restrictive shall
apply.
Section 6. Filing, Transmittal, and Effective Date.
This ordinance shall be filed in the Office of the Secretary of State of the State of Florida, and
transmitted to the State Land Planning Agency, but shall not become effective until a notice is
issued by the State Land Planning Agency or Administrative Commission approving the ordinance
pursuant to Chapter 380, Florida Statutes, and after any appeal period has expired and the
injunction has been lifted in the case of Florida Key Deer et. al.,v. Fugate et. al., 90-10037-CIV-
Moore.
Section 7. Codification
The provisions of this ordinance shall be included and incorporated into the Code of Ordinances of
the County of Monroe, Florida, as an addition or amendment thereto and shall be appropriately
numbered to conform tothe uniform numbering system of the Code.
Page 15 of 16
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at
a regular meeting held on the day of , 2012.
Mayor David Rice
Mayor Pro Tern Kim Wigington
Commissioner Heather Carruthers
Commissioner George Neugent
Commissioner Sylvia Murphy
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA
I:l
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
DEPUTY CLERK
Mayor David Rice
M A COUNTY7AOT�TORNEY
AP
Date:
Page 16 of 16
C
ORDINANCE NO. -2012
2
AN ORDINANCE BY THE MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS AMENDING CHAPTER
122 FLOODPLAIN REGULATIONS, CREATING
SECTION 122-8 PROVIDING FOR INCLUSION OF
UNITED STATES FEDERAL EMERGENCY
MANAGEMENT AGENCY (FEMA) AND UNITED
STATES FISH AND WILDLIFE SERVICE (FWS)
REQUIREMENTS IN PERMIT REFERRAL PROCESS
IMPLEMENTATION AND DETERMINATIONS;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
REPEAL OF CONFLICTING PROVISIONS; PROVIDING
FOR TRANSMITTAL TO THE STATE LAND PLANNING
AGENCY AND THE SECRETARY OF STATE;
PROVIDING FOR CODIFICATION; PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the National Flood Insurance Program (NFIP) is a Federal program enabling
property owners in participating communities to purchase flood insurance in exchange for the
community's adoption of floodplain management regulations to reduce future flood damages; and
WHEREAS, in 1990 the National Wildlife Federation, Florida Wildlife Federation, and the
Defenders of Wildlife filed suit against the Federal Emergency Management Agency (FEMA)
claiming FEMA was not consulting with the U.S. Fish and Wildlife Service (FWS or Service) as
required by the Endangered Species Act in their administration of the National Flood Insurance
Program (NFIP) in Monroe County, Florida; and
WHEREAS, in 1997 the Service completed a Biological Opinion (BO) for the effects of the
NFIP on Federally listed (threatened or endangered) species in the Florida Keys; and
WHEREAS, the 1997 BO found the NFIP jeopardized nine species in the Keys; and
WHEREAS, in 2003 the Service re -initiated consultation and amended the 1997 BO and
concluded that the effect of the NFIP would result in jeopardy on eight of 10 species evaluated in the
BO; and
WHEREAS, in a second amended complaint in 2003 the plaintiffs filed suit against FEMA and
the Service pursuant to the Endangered Species Act and the Administrative Procedures Act; and
WHEREAS, on March 29, 2005 the United States District Court, Southern District of Florida
(District Court) granted summary judgment in favor of the Plaintiffs which found that the Service
and FEMA violated the Endangered Species Act and the Administrative Procedures Act; and
WHEREAS, on September 9, 2005, the District Court entered an order enjoining FEMA from
issuing flood insurance under the NFIP on any new residential or commercial developments in
suitable habitats of federally listed (threatened or endangered) species in the Keys; and
Page 1 of 16
WHEREAS, the District Court also ordered the Service to submit a new BO by August 9, 2006.
The Service issued a new BO on August 8, 2006; and
WHEREAS, on April 1, 2008, the United States Court of Appeals for the Eleventh Circuit
affirmed the District Court's rulings of March 29, 2005 and September 9, 2005; and
WHEREAS, On February 26, 2009, the District Court ordered the Service to submit a new BO
by March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this deadline;
and
WHEREAS, on April 30, 2010, the Service published the revised BO for FEMA's administration
of the NFIP in Monroe County; and
WHEREAS, the BO contains "Reasonable and Prudent Alternatives" (RPA's) that 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 (referenced in RPA
paragraph 1) within 120 days of acceptance of this BO by the Court, and;
WHEREAS, on January 11, 2011, the District Court approved a Settlement Agreement between
the Plaintiffs and the Federal Defendants in which the Federal Defendants agreed to notify the
Court and the parties when Monroe County and the other "participating communities" in the Florida
Keys have: 1) revised their Flood Damage Prevention Ordinance(s); and 2) implemented procedures
to reference and use the updated real estate list and Species Focus Area Maps (referenced in
reasonable and prudent alternative ("RPA") paragraph 1) in compliance with paragraphs 2, 3, 4, and
5 of the RPA; and
WHEREAS, on December 2, 2011, FEMA notified Monroe County that if the County did not
implement the RPA's by January 11, 2012, then Monroe County would have been placed on
probation on May 10, 2012.In response to the County's requested time extension, FEMA requested
and the Court granted an extension to June 30, 2012 for the ordinance revisions and permit referral
process implementation; and
WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
advised the Board that adoption of the RPA's; ordinance language; and originally drafted Species
Assessment Guides (SAGs) suggested by the Federal agencies would have resulted in increased
exposure to the County for liability for inverse condemnation or takings claims; and
WHEREAS, FEMA and the Service revised the SAGs to include provisions that substantially
reduce the County's potential exposure for liability for inverse condemnation or takings claims; and
WHEREAS, FEMA provided comments on the County's DRAFT Ordinance, transmitted by the
County to FEMA on various dates; and
WHEREAS, because the Florida Constitution prohibits the County from incorporating future
federal statutes and regulations into its existing ordinances, the County is unable to adopt the
"subsequent revisions" to the Species Focus Area Maps (SFAMs) or Species Assessment Guides
Page 2 of 16
(SAGs) into this ordinance as desired by FEMA, until the subsequent revisions are published and
adopted by the then sitting Board of County Commissioners pursuant to the process set forth in
Florida law; see, e.g., Abbott Laboratories v. Mylan Pharmaceuticals, 15 So.3d 642 (Fla. I" DCA
2009); and
WHEREAS, the County has revised said ordinance; and
WHEREAS, the Florida Legislature adopted Chapter 2012-205 Laws of Florida, effective July 1,
2012, which states:
"For any development permit application filed with the county after July 1, 2012, a county may not
require as a condition of processing or issuing a development permit that an applicant obtain a
permit or approval from any state or federal agency unless the agency has issued a final agency
action that denies the federal or state permit before the county action on the local development
permit. Issuance of a development permit by a county does not in any way create any rights on the
part of the applicant to obtain a permit from a state or federal agency and does not create any
liability on the part of the county for issuance of the permit if the applicant fails to obtain requisite
approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that
result in a violation of state or federal law. A county may attach such a disclaimer to the issuance of
a development permit and may include a permit condition that all other applicable state or federal
permits be obtained before commencement of the development. This section does not prohibit a
county from providing information to an applicant regarding what other state or federal permits
may apply. "; and
WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
proposed an ordinance with alternative language to meet the RPAS, which is consistent with Federal
law, addresses Chapter 2012-205, Laws of Florida, and adequately protects the County taxpayers
against accepting that additional liability; and
WHEREAS, the September 9, 2005 District Court injunction will only be lifted by the Court if
the FWS Biological Opinion and Reasonable and Prudent Alternatives, which requires property
owners within the species focus areas and buffer areas to go through the Permit Referral Process, are
implemented by each of the participating communities; and
WHEREAS, any property owner has an obligation to comply with the Federal Endangered
Species Act; and
WHEREAS, the County has an obligation to comply with the Federal Endangered Species Act;
and
' For the purposes of Chapter 2012-205 Laws of Florida, the definition of Development
Permit is: `Developmentpermit" includes any buildingpermit, zoningpermit,
subdivision approval, rezoning, certification, special exception, variance, or any other
official action of local government having the effect ofpermitting the development of
land.
Page 3 of 16
WHEREAS, subject to resolutions 420-2005; 166-2006; 185-2007; 219-2008 and 282-2011,
property owners are able to "toll" their building permits and ROGO allocations because they were
not eligible for flood insurance as a result of the September 9, 2005 District Court injunction; and
WHEREAS, the only way the Court will terminate the 2005 District Court injunction is if
participating communities comply with the BO RPA's; and
WHEREAS, this Ordinance is being adopted to provide owners with tolled building permits
and/or ROGO allocations a way to develop in a manner consistent with the Endangered Species Act
and that will be eligible for national flood insurance; and
WHEREAS, the Monroe County Planning Commission during a regular meeting held on April
25, 2012, reviewed, discussed and approved the Sr. Director of Planning and Environmental
Resources' recommendation to the Planning Commission for the revisions to Chapter 122 of the
Monroe County Land Development Code;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1. Section 122-2 of the Monroe County Land Development Code shall be amended as
follows: (additions are underlined; deletions are stfieken dffeuo)
Sec.122-2. General provisions.
(a) Applicability. Except as provided for the elevated portion of a nonconforming residential
structure by section 122-4(a) (10), no structure or manufactured home hereafter shall be located,
extended, converted or structurally altered, and no development shall occur, without full compliance
with the terms of this chapter in addition to other applicable regulations, including, but not limited
to, 44 CFR 60.3(a)(2) of this.
(b) Adeption of maps Basis for Establishing Special Flood Hazard Maps, Species Focus Area Maps
(SFAMs) with Species Focus Area Buffers and Federally Protected Species Area Real Estate (RE)
List,• and Species Assessment Guides (SAGS).
1_The areas of special flood hazard identified by the Federal Emergency Management Agency
(FEMA) in its Geteber- 17, 1989 Flood T e C'tudY a fid Wave Height tAa4ysis for- Adep--ee
February 18, 2005 Maps with the most oe-~*
map,;- byFEMA, with accompanying supporting data, and any revisions thereof,
are adopted by reference and declared to be a part of this chapter, and shall be kept on file, available
to the public, in the offices of the county Building Department. Letter of Map Amendments, Letter
of Map Revisions, Letter of Map Revision Based on Fill, and Conditional Letter of Map Revisions
approved by FEMA are acceptable for implementation of this regulation.
2 Species Focus Area Maps (SFAMs) with Species Focus Area Buffers and Species Real Estate
(RE) List FEMA and FWS have provided the Species Focus Area Maps (SFAMs) mailed to
Monroe County and dated April 30 2011 and a listing of real estate numbers of parcels (RE list)
emailed to Monroe County and dated November 18, 2011, that are within the SFAMs and that have
Page 4 of 16
been identified by FWS. The SFAMs and the RE List that are within the SFAMs identified by the
FWS in accordance with the Biological Opinion, dated April 30, 2010, as amended December 14,
2010, are hereby declared to be a part of this ordinance. The SFAMs and RE list are on file at the
Monroe County Clerk's office and the Monroe County Growth Management Division Office.
3. Species Assessment Guides (SAGS). FEMA and FWS have provided the Species Assessment
Guides (SAGs) mailed to Monroe County and dated May 20, 2012. These SAGs are declared to be a
part of this ordinance. The SAGs are on file at the Monroe County Clerk's office and the Monroe
County Growth Management Division Office.
(c) Rules for interpreting flood hazard issues. The boundaries of the flood hazard areas shown on
the official flood insurance rate maps may be determined by scaling distances. Required
interpretations of those maps for precise locations of such boundaries shall be made by the
floodplain administrator, in consultation with the building official. In interpreting other provisions of
this chapter, the building official shall be guided by the current edition of FEMA's 44 CFR, and
FEMA's interpretive letters, policy statements and technical bulletins as adopted by resolution from
time to time by the Board of County Commissioners . Additionally, the building official shall also
obtain, review and reasonably use any base flood elevation and floodway data available from a
federal, state or other source, as criteria for requiring that new construction, substantial
improvements, and other developments meet the criteria required in the appropriate flood zone.
Section 2. Sec. 122-3 of the Monroe County Land Development Code shall be amended as
follows:
Sec.122-3. — Permit requirements.
(a) The following words, terms and phrases, when used in this chapter, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Adjacent to contiguous native habitat means an area of native habitat sharing a boundary at one or
more points of intersection with other native habitat. For purposes of this land development code,
an intervening road, right-of-way or easement shall not destroy the adjacency of the habitat.
However, U.S. 1, canals and open water shall constitute a break in adjacency.
Alteration means any change or modification in construction type, materials, or occupancy.
Base flood means the flood having a one percent chance of being equaled or exceeded in any given
year.
Basement means any area of the building having its floor subgrade (below ground level) on all
sides.
Development means any manmade change to improved or unimproved real estate, including, but
not limited to, buildings or other structures, clearing, mining, dredging, filling, grading, paving,
excavation or drilling operations or storage of equipment e€ or materials.
Page 5 of 16
Elevated building means a nonbasement building that has its lowest elevated floor raised above
ground level by foundation walls, shear walls, posts, piers, pilings, or columns.
Enclosure means that portion of an elevated building below the lowest elevated floor that is either
partially or fully shut in by rigid walls and used solely for limited storage, parking or entryways.
Enclosures shall not be constructed, equipped or used for habitational or other purposes.
Existing construction means structures for which the start of construction commenced before
January 1, 1975. Existing construction is also known as pre -FIRM structures.
Existing manufactured home park means a manufactured home park or subdivision for which the
construction of facilities for servicing the lots on which the manufactured homes are to be affixed
(including, at a minimum, the installation of utilities, the construction of the streets, and either final
site grading or the pouring of concrete pads is completed before January 1, 1975, and in which, at
the time of application, there are no site built residences or the park or subdivision is limited to
manufactured home by this chapter.
Finishing materials means anything beyond basic wall construction pursuant to the most recent
FEMA Technical Bulletin, which is normally associated with habitable space. Finishing materials
include, but are not limited to, ceiling mold, trim, baseboards, decorative finish work, wainscoting,
and textured woods.
Historic Structure means any structure that is:
(a) Listed individually in the National Register of Historic Places (a listing maintained by the
Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the
requirements for individual listing on the National Register;
(b) Certified or preliminarily determined by the Secretary of the Interior as contributing to the
historical significance of a registered historic district or a district preliminarily determined by the
Secretary to qualify as a registered historic district;
(c) Individually listed on state inventory of historic places in states with historic preservation
programs which have been approved by the Secretary of the Interior; or
(d) Individually listed on a County inventory of historic places in communities with historic
preservation programs that have been certified either:
(1) By an approved state program as determined by the Secretary of the Interior, or
(2) Directly by the Secretary of the Interior in states without approved programs.
Illegal Structure or Use means a structure or use that is not a legal structure or legal use as defined
in this chapter.
Legal Structure means a structure that was permitted by the floodplain regulation in effect at the
time construction commenced on the structure in its current configuration and received a permit or
final inspection or certificate of occupancy for the structure in its current configuration.
Legal Use means a use that was permitted by the floodplain regulations at the time the use
commenced on the property.
Page 6 of 16
Limited storage means that which is incidental and accessory to the principal use of the structure.
For example, if the structure is a residence, storage should be limited to items such as lawn and
garden equipment, tires, and other low damage items which will not suffer flood damage or can be
conveniently moved to the elevated part of the building. Flood insurance coverage for enclosures
below the Base Flood Elevation (BFE) is very limited.
Lowest Floor means the lowest floor of the lowest enclosed area (including basement). An
unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or
storage in an area other than a basement area is not considered a building's lowest floor; provided,
that such enclosure is not built so as to render the structure in violation of the applicable non -
elevation design requirements of this chapter.
Manufactured home means a structure, transportable in one or more sections, which is built on a
permanent chassis and designed to be used with or without a permanent foundation when connected
to the required utilities. The term also includes park trailer, travel trailers, and similar transportable
structures placed on a site for 180 consecutive days or longer and intended to be improved property.
Market value means the county property appraiser's value of the structure plus 20 percent. A
uniform appraisal report for determination of market value submitted by the applicant may be used
if the county building official considers such appraisal consistent with local construction costs.
Where appraisal is not accepted because it appears to be inconsistent with local construction costs
an applicant may request review by an independent third party appraiser duly authorized by the
county. The cost of independent review shall be borne by the applicant. The reviewing appraiser
shall determine if the appraisal value reasonably reflects an appropriate value of the structure. The
independent appraiser's determination shall be in writing. Professionals preparing appraisal shall be
required to possess certifications as state certified residential appraisers for appraising one to four
family residential properties and state certified general appraisers for all other properties including
commercial and multi -residential
New construction means those structures for which the start of construction commenced on or after
January 1, 1975. New construction is also knows as post -FIRM structures. These r-oplations
adopted by the eeuaty jaaeffy 1, 1974 afe based en the original fnaps published by the Fed
geveFfiffiefit June is, 10-7-3.
Nonconforming structure means a below base flood elevation structure or a portion thereof such as
an enclosure, materials with no openings, flood resistant materials), which was lawfully existing or
permitted, and is not fully compliant with the terms of this chapter. A nonconforming structure shall
remain subject to the terms of this chapter.
Notice to proceed means written authorization by the County Growth Management Division to the
permittee authorizing permitted development to begin.
Page 7of16
Pure manufactured home park means a manufactured home park that at the time of application has
no site -built residences or a park or subdivision which is limited to manufactured homes only by
this chapter.
Recreational vehicle means a vehicle that is:
(1) Built on a single chassis;
(2) Four hundred square feet or less when measured at the largest horizontal projection;
(3) Designed to be self-propelled or permanently towable by a light duty truck; and
(4) Designed primarily not for use as a permanent dwelling but as temporary living quarters
for recreational, camping, travel or seasonal use.
Start of construction means (for other than new construction or substantial improvements under the
Coastal Barrier Resources Act) includes substantial improvements, and means the date the building
permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation,
addition, placement or other improvement was within 180 days of the permit date. For substantial
improvements the actual start of construction means the first alteration of any wall, ceiling, floor, or
other structural part of a building whether or not the alteration affects the external dimensions of the
building. The actual start means either the first placement of permanent construction of a structure
on a site, such as the pouring of slab or footings, the installation of piles, the construction of
columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a
foundation. Permanent construction does not include land preparation, such as clearing, grading and
filling; nor does it include the installation of streets and/or walkways; nor does it include excavation
for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include
the installation on the property of accessory buildings, such as garages or sheds not occupied as
dwelling units or not part of the main structure.
Substantial damage means damage of any origin sustained by a structure whereby the cost of
restoring the structure to its before damaged condition would equal or exceed 50 percent of the
market value of the structure before the damage occurred. All structures that are determined to be
substantially damaged are automatically considered to be substantial improvements, regardless of the
actual repair work performed. If the cost necessary to fully repair the structure to its before damage
condition is equal to or greater than 50% of the structure's market value before damages, then the
structure must be elevated (or flood proofed if it is non-residential) to or above the Base Flood
Elevation (BFE), and meet other applicable NFIP requirements. Items that should net be eounte
may be excluded from tewaM the cost to repair include plans, specifications, survey costs, permit
fees, and other items which are separate from or- ineidee the repair. Items that may also be
excluded sheuld net be eaunted also includes demolition or emergency repairs (costs to temporarily
stabilize a building so that it's safe to enter to evaluate and identify required repairs) and
improvements to items outside the building, such as the driveway, septic systems, wells, fencing,
landscaping and detached structures.
Page 8 of 16
or- h-e-RIOM effi-eef was
> >
rrrs.
--
. . - - t - -: -- MW
Substantial improvement means any reconstruction, rehabilitation, addition, or other improvement of
a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before
the "start of construction" of the improvement. This term includes structures which have incurred
"substantial damage, "regardless of the actual repair work performed. The term does not, however,
include either:
1. Any project for improvement of a structure to correct existing violations of state or local health,
sanitary, or safety code specifications which have been identified by the local building official
and which are the minimum necessary to assure safe living conditions;, or
2. The cost of repairs required to remedy health, safety, and sanitary code deficiencies can be
deducted from the overall cost of an improvement, but only if:
a. an appropriate regulatory official such as a building official, fire marshal, or health
officer was informed about and knows the extent of the code related deficiencies, and
b. the deficiency was in existence prior to the damage event or improvement and will not be
triggered solely y the fact that the structure is being improved or repaired.
In addition, for any repair required to meet _health, sanitary, and safety codes, only the
minimum necessary to assure safe living conditions should be deducted, including those
improvements required by Chapter 11, 2012 Florida Accessibility Code. Costs of repairs that
are in excess of the minimum necessary for continued occupancy or use will be counted
toward the cost of the overall improvement; or
-.3_Any alterations of a "historic structure," provided that the alteration will not preclude the
structure's continued designation as a "historic structure."
Floodplain management requirements for new construction apply to substantial improvements.
Supplemental Information for Substantial Improvement
The basic types of improvements the could be made to structures include but are not limited to are
rehabilitations or reconstructions that do not increase square footage, and lateral or vertical
additions that do increase square footage.
Rehabilitation or reconstruction would be a partial or complete "gutting" and replacement of
internal workings and may or may not include structural changes. If this action is substantial, i.e.,
Page 9 of 16
over 50 percent of the structure's market value, it is considered new construction, and the entire
building must be elevated to or above the Base Flood Elevation (BFE) (or floodproofed if the
building is non-residential).
For a lateral addition, if the substantial improvement is to add a room or rooms outside the footprint
of the existing building, only the addition is required to be elevated to or above the BFE, i.e.; the
existing building does not have to be elevated. If the proposed lateral addition also includes
rehabilitation or remodeling of the existing building, then the whole project as a combination of
work must be considered. Vertical additions would require that the entire structure be elevated to or
above the BFE. Even though the improvement itself is entirely above the BFE, it is dependent on
the walls and foundation of the existing building for structural support.
(b) Except for work specifically exempted under chapter 6, the building official shall require
building permits/Flood-plain Development Permits for all proposed construction or other
improvements within areas of special flood hazard. In addition to the standard requirements for a
building permit, an application for a building permit for construction or improvements within areas
of special flood hazard shall contain the information and certifications set forth in a form provided
by the Building Official.
(c) All building foundations shall rest directly on natural rock, on concrete piling driven to rock or
on friction piling (concrete or wood) and shall be anchored to such rock support by holes, 16 inches
in minimum diameter, augured into such rock a minimum depth of three feet and reinforced by a
minimum of four #5 vertical rods extending up into the piers above a minimum of 18 inches and
tied to the vertical steel of the pier. Wooden pilings shall be locked into 16-inch auger foundations
by at least a #5 rebar extending through the piling and three to five inches beyond.
(d) The permit holder shall provide a floor elevation after the lowest floor is completed or, in
instances where the structure is subject to the regulations applicable to coastal high -hazard areas,
after placement of the lowest horizontal structural members of the lowest floor. Floodproofing
certification for nonresidential structures in A -Zones shall be provided prior to a certificate of
occupancy or prior to final inspection.
(e) Within 21 calendar days of establishment of the lowest floor elevation, or upon placement of
the lowest horizontal structural members of the lowest floor, whichever is applicable, it shall be the
duty of the permit holder to submit to the building official a certification of the elevation of the
lowest floor within A zones or the lowest portion of the lowest horizontal structural members of the
lowest floor within V zones, whichever is applicable, as built in relation to mean sea level. Such
certification shall be prepared by or under the direct supervision of a registered land surveyor or
professional engineer and certified by the same. When floodproofing is used for a building within A
zones, the certification shall be prepared by or under the direct supervision of a professional
engineer or architect and certified by same. Any work done within the 21-day period and prior to
submission of the certification shall be at the permit holder's risk. The building official shall review
the floor elevation survey data submitted. Deficiencies detected by such review shall be corrected
by the permit holder immediately and prior to further progressive work being permitted to proceed.
Failure to submit the survey or failure to make the corrections required hereby shall be causes to
issue a stop -work order for the project.
(f) The degree of flood protection required in this chapter is reasonable for regulatory purposes
and is based on scientific and engineering considerations. Larger floods can and will occur on rare
Page 10 of 16
occasions. Flood heights may be increased by manmade or natural causes. This chapter does not
imply that land outside the areas of special flood hazard or uses permitted within such areas will be
free from flooding or flood damages. This chapter shall not create liability on the part of the
county or any officer or employee thereof for any flood damages that result from reliance on this
chapter or any administrative decision lawfully made thereunder.
Section 3. The Monroe County Land Development Code is amended by adding Section 122-8
as follows:
Sec. 122-8. Inclusion of United States Federal Emergency Management Agency (FEMA) and
United States Fish and Wildlife Service (FWS) Required Permit Referral Process (PRP) in
Final Permit Determinations for Development
(a) Purpose and intent.
will
assure, consistent with the Ir Amendment to the U.S. Constitution, state and County
regulations, proper record retention, coordination, and notification of FEMA and FWS
regarding Kermit applications filed with or issued by Monroe County, inclusive of
FEMA/FWS requirements agreed to by the applicant.
?j Lands to which this Section apply. See Section 122-2 (b) 2.
(c) Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on the
FWS SFAMs may be determined by scaling distances. Required interpretations of those
maps for precise locations of such boundaries shall be made by the County Planning
Director or his/her designee, in consultation with the building official.
(dd) Administration of Development Approval in Species Focus Areas.
1. SFAM Review Required. For parcels or lots shown within the
SFAMs in which an application for development permit has been made,
if the SFAM indicates the parcel or lot contains only unsuitable habitat
for any of the following_ species: Key Largo Cotton Mouse, Key Largo
woodrat, Key tree -cactus, Lower Keys marsh rabbit, Eastern indigo
snake, Key deer, Schaus swallowtail butterfly, silver rice rate, and Stock
Island tree snail, and the parcel or lot is not listed on the RE list, the
Planning Director or his/her designee shall provide for a notation in the
development application permit files that indicates:
a. The name of the official that reviewed the development
application for FWS requirements;
b. The date of the review;
c. The date of the SFAM and RE list used to conduct the
review.
Once the review has established that a parcel or lot contains
unsuitable habitat, action may be taken on the permit application for
development by Monroe County staff.
Page 11 of 16
2. FWS Technical Assistance Permit Requirements. For
parcels or lots shown within the SFAMs in which an application for a
permit for development has been made including 1) expanding the
footprint of a structure; and/or 2) expanding clearing in habitat (including
native vegetation removal); and/or 3) placement of fencing into key deer
habitat if the SFAM indicates the parcel or lot contains suitable habitat
for any of the following species: Key Largo Cotton Mouse, Key Largo
wood rat, Key tree -cactus, Lower Keys marsh rabbit, Eastern indigo
snake Key deer, Schaus swallowtail butterfly, silver rice rat, and/or
Stock Island tree snail, and the parcel or lot is listed on the RE list, the
Planning Director or his/her designee shall use the SAGS to determine
whether a floodplain development permit application requires:
a. incorporation of FWS SAG requirements as conditions
into the Monroe County permit and the Co]q= may issue the
permit, pursuant to all applicable codes; or
b. if, according to the SAGs, the proposed development
needs technical assistance by the Service, the County shall issue
the permit in accordance with Chapter 2012-205, Laws of Florida,
indicating a Notice to Proceed must be obtained prior to any
construction, removal of vegetation, or commencement of
development, with a condition that:
i. the applicant seek and obtain technical assistance from
the Service; and
ii. the applicant obtain, prior to the issuance of the Notice
to Proceed, all applicable state or federal permits or
rVpovals pursuant to Section 122-2 (a); and
iii. In accordance with the Florida Building Code and
Monroe County Section 6-103 (b), the permit shall
expire after 180 dated
iv. If the permit expires, the applicant shall be required to
reapply for the permit.
c. For a floodplain development permit application that
requires the Services' technical assistance, Monroe County shall
provide the application to the Service weekly. Based on the
Services technical assistance, the applicant shall submit the FWS
written requirements to the County. If the applicant agrees to the
FWS requirements, in writing, Monroe County then issue a
NOTICE TO PROCEED that includes the technical assistance
requirements, provided by the federal agency to avoid possible
impacts on federally listed threatened or endangered) species, as
conditions in the Monroe County permit.
d. For a development permit application that requires
mitigation and/or compensation for adverse effects to native
Page 12 of 16
habitat
restoration and/orRurchase of native habitat.
e. The CojgLty shall maintain an--gp2li—c-a—n-t---acre:-pta—nce
form., of the vice�re u�iremen�,tsin the permit file.
f. For purDoses of this Chapter the Notice to Proceed shall
be -written authorization. from the Monroe Cgqn-tL—Growth
ed
devel2gmgnjactivities b is ,
Habitat Conservation Plan, and where that Habitat Conservation
Plan. has Mired at the time of develo ment ermit a licaticru,,
the County shall apply this Permit Referral Process,_unless
h. if the p.ro erty owner does
technical assi
devel issue the
notice to vroceed and shall rescind tg-2reviously issuqd
devel2pm permit.
3. Provision for Flood Hazard Reduction and Avoiding irnpacts
on
Enfor onditions
established on the flood Taira deygk))me ermit and/or notice to
�-wehl 2ment R
Le Uirean quiremegits
included as conditions on the, Mogroe County dpmlo jLm—ent
soles
Ag
anv develoDment constructed not in accordance with, the FWS
reouirement,., included as conditions on the M.Onr ire ,County
development 12emtit, derixed thrLou SA use of the SA Gs or throu&h
teclu-tical assist ance,.by FWS a reb ( deemed to be violations,re he���
of th
administrative enfbrcement vrocedures set, forth in Cha ater 8
Page 13 of 16
Monroe County Code of Ordinances. Further, Section 118-11
shall be utilized to require environmental restoration standards.
4. Permit issuance for previously tolled Rate of Growth Ordinance
(ROGO) allocations, Non -Residential Rate of Growth Ordinance
(NROGO) allocations or building permits/Floodplain
Development Permits. Buildinppermits and allocations have been
tolled under authority of Monroe County Resolutions 420-2005,
166-2006, 185-2007 & 219-2008 and 282-2011 as a result of the
injunction prohibiting FEMA from issuing flood insurance
policies under the National Flood Insurance Program which was
imposed in the case of Florida Key Deer et. al.,v. Fugate et. al.,
90-10037-CIV-Moore. In order for those persons whose
allocations or whose building_ permits were tolled to be eligible
for Federal flood insurance and meet their obligations under the
Federal Endangered Species Act, the followingis 's required:
a. Owners with allocations who do not need coordination
with FWS after they are processed through the Permit
Referral Process:
1. Have 180 days from the date of efma"ea ef
de -date -of a County issued written notice to
pick up their building_ permits; or
i —greater
2. Have 300 days from the date of a county issued
written notice, if there is a need to redesign
onsite wastewater treatment system, to receive
a permit from the Department of Health(DOH)
and pick up their building` permits.
b. Owners with building permits who do not need
coordination with FWS after they are processed
through the Permit Referral Process:
1. Have 180 days from the date of of e f
dw-date-ef a County issued written notice, to
recommence development and receive a passed
inspection., :or
2. Have 300 days from the date of a Coun
issued written notice, if there is a need to
redesign an onsite wastewater treatment system
to receive a permit from the DOH,
recommence development and receive a passed
inspection.
Page 14 of 16
c. Permit applications processed through the Permit
Referral Process that result in a "may affect
determination" for the proposed development through
the application of the Species Assessment Guides
which require the permittee to coordinate with FWS
shall have a total of 360 days from the date of a
County issued written notice to conclude the required
coordination with FWS and pick up the building
permit and receive a Notice to Proceed from Monroe
County. This timeframe may be extended by the
Planning Director if the applicant can affirmatively
demonstrate that he has timely_ and actively sought
coordination.
d. Properties for which a Permit has been issued and
oar -Meld for which development has not commenced
will be required to be processed through the Permit
Referral Process. Fim-Permit reviews that result in a
"may affect determination" for the proposed
development through the application of the Species
Assessment Guides which require the permittee to
coordinate with FWS shall have a total of 360 days
from the date of a County issued written notice to
conclude the required coordination with FWS,
commence development and receive a passed
inspection from Monroe County. This timeframe may
be extended by the Planning. Director if the applicant
can affirmatively demonstrate that he has timely and
actively sought coordination.
Section 4. Severability.
If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be
adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
impair, invalidate, or nullify the remainder of this Ordinance, but the effect thereof shall be
confined to the section, paragraph, subdivision, clause, sentence or provision immediately involved
in the controversy in which such judgment or decree shall be rendered.
Section 5. Conflicting Provisions.
In the case of direct conflict between any provision of this ordinance and a portion or provision of
any appropriate federal, state or county law, rule, code or regulation, the more restrictive shall
apply.
Section 6. )ding, Transmittal, and Effective Date.
This ordinance shall be filed in the Office of the Secretary of State of the State of Florida, and
transmitted to the State Land Planning Agency, but shall not become effective until a notice is
Page 15 of 16
issued by the State Land Planning Agency or Administrative Commission approving the ordinance
pursuant to Chapter 380, Florida Statutes, and after any appeal period has expired and the
injunction has been lifted in the case of Florida Key Deer et. al..v. Fugate et. al., 90-10037-CIV-
Moore.
Section 7. Codification
The provisions of this ordinance shall be included and incorporated into the Code of Ordinances of
the County of Monroe, Florida, as an addition or amendment thereto and shall be appropriately
numbered to conform to the uniform numbering system of the Code.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at
a regular meeting held on the day of , 2012.
Mayor David Rice
Mayor Pro Tern Kim Wigington
Commissioner Heather Carruthers
Commissioner George Neugent
Commissioner Sylvia Murphy
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA
Im
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
001
Mayor David Rice
Page 16 of 16
Key Deer Assessment Guide
May 20, 2012
The U.S. Fish and Wildlife Service's (Service) FEMA Biological Opinion (BO) dated April 30,
2010, and modified on December 14, 2010, identified 8,205 at -risk parcels intersecting 6,746
acres of habitats that may occasionally be used by the endangered Key deer (Odocoileus
virginianus clavium) in Monroe County, Florida. The BO also identified an additional 3,510
acres of at -risk lands outside Monroe County's parcel layer not subject to the Rate of Growth
Ordinance (ROGO) program.
The at -risk properties were determined by overlaying the County's property parcel layer onto the
County's 2009 land cover boundary maps (Monroe County 2009). The County's land cover
boundary maps included 13 land cover types. Developed land, undeveloped land, impervious
surface, and exotic are considered non-native land cover types. Hammock, pineland, scrub
mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, and beach berm are
considered native land cover types. The water classification is also considered a native cover
type. The minimum mapping unit for land cover polygons was 0.35 acre for hammock and 0.5
acre for all other cover types.
The County's boundary map land cover types containing suitable habitat for the Key deer
included all 13 land cover types. We also noted that potential habitat is present only in
unincorporated Monroe County (Lower Keys only).
Species Profile: The Key deer's historical range was thought to extend from Key Vaca to Key
West (Klimstra et al. 1978), although the current range is restricted to 20 to 26 islands within and
adjacent to the boundaries of the National Key Deer Refuge (NKDR) and the Great White Heron
National Wildlife Refuge. The largest concentration (about 75 percent of the overall population)
is found on Big Pine Key (Lopez et al., 2004a). The principal factor influencing the distribution
and movement of Key deer is the location and availability of freshwater. Key deer swim easily
between keys and use all islands in their range during the wet season, but suitable water is
available on only 13 of the 26 islands during the dry season (Folk 1991). Key deer use all habitat
types including pine rocklands, hardwood hammocks, buttonwood salt marshes, mangrove
wetlands, freshwater wetlands, and disturbed/developed areas (Lopez 2001). The deer use
uplands more than wetlands (Lopez et al. 2004b). Key deer use these habitats for foraging,
cover, shelter, fawning, and bedding. Pine rocklands hold freshwater year round and are
especially important to Key deer survival. About 34 percent of the range is pine rocklands and
hardwood hammocks (Lopez et al. 2004c), and over 85 percent of fawning occurs in these two
habitats (Hardin 1974). Five of 26 islands occupied by Key deer have significant pine rocklands.
Key deer also use residential and commercial areas extensively where they feed on ornamental
plants and grasses and can seek refuge from biting insects.
The greatest number of at -risk parcels (4,925 parcels or 60 percent) are on Big Pine and No
Name Keys. The Service issued a Section 10(a)(1)(B) Incidental Take Permit (ITP) to Monroe
County, Florida Department of Transportation, and Florida Department of Community Affairs in
June 2006 for adverse effects from development on Big Pine and No Name Keys. The ITP
authorizes take of 4 Key deer per year and 168 acres of Key deer habitat. The take will be
Key Deer Species Assessment Guide
incidental to land clearing for development and recreational improvements. The Service issued
the ITP to the applicants based upon their development of a Habitat Conservation Plan (HCP)
that sets guidelines for development activities on Big Pine and No Name Keys to occur
progressively over the permit period (20 years). The HCP provides avoidance, minimization,
and mitigation measures to offset impacts to covered species, including the Key deer. Mitigation
includes the protection of three mitigation units for each development unit of suitable habitat
within the plan area.
Threats: The principle threat to Key deer is native habitat loss and fragmentation due to
development (Klimstra et al., 1974). Fencing associated with development may cause direct Key
deer habitat loss by preventing access to areas used for breeding, feeding, and sheltering. Native
habitat that is fenced is no longer available for use by the Key deer and the fencing may block
access to other areas. Residential and commercial development over the past 20 years has
increased the number of vehicles and vehicular traffic in the Keys. This additional traffic has
increased the likelihood of Key deer/vehicle collisions
Assessment Guide: In order to provide assistance in assessing threats to the Key deer from a
given project, the Service has developed the following guidance and recommendations that, if
implemented, will minimize adverse effects to the Key deer. If the use of this guide results in a
determination of "no effect" for a particular project, the Service supports this determination. If
the use of this guide results in a determination of "not likely to adversely affect" (NLAA), the
Service concurs with this determination and no additional correspondence is necessary. If the
use of this guide results in a "may affect" determination, then additional coordination with the
Service is necessary prior to permit issuance. For projects that result in a "may affect"
determination, if, after reviewing the specific project and assessing its potential effects to
federally listed species, the Service determines that the project will result in take, the Service will
notify FEMA and the acreage of impacts will be subtracted from the take limits provided in the
BO. This guide is subject to revision as necessary.
A. Parcel is not in the species focus area and/or on the Real Estate (RE) parcel list.... no effect
Parcel is in the species focus area or on the RE parcel list.................................go to B
B. Parcel is on Big Pine Key or No Name Key .................................. may affect (refer to HCP)
Parcel is not on Big Pine Key or No Name Key...........................................................go to C
C. Parcel includes one of referenced permanent freshwater sources................................go to D
Notas above......................................................................................go to E
D. The applicant's proposed action does not restrict access to the referenced permanent
freshwater............. go to E
Not as above................................................................................. affect may
a
E. Parcel is mapped as containing only non-native habitat (developed land, undeveloped land,
impervious surfaces, or exotic).................................................................go to H
May 20, 2012 2
Key Deer
Species Assessment Guide
Parcel is mapped as containing native habitat (hammock, pineland, scrub mangrove,
freshwater wetland, salt marsh, buttonwood, mangrove, or beach berm)................go to F
F. The proposed action will not remove or modify native habitat ................................... go to H
The proposed action will remove or modify native habitat. A vegetation survey is required
to document the native plant species and size present on the property and a general
description of the surrounding properties within 500 feet is also required. Once complete ...
......................................................................................................................................go to G
G. The property is less than 1 acre and/or is not adjacent to contiguous native habitat greater
than 1 acre AND the applicant has proposed either on -site or off -site habitat compensation*
commensurate with the amount of native habitat lost . ................................. go to H
The property contains and/or is adjacent to contiguous native habitat greater than 1 acre in
size AND/OR the applicant is not proposing habitat compensation* or the proposed habitat
compensation* does not meet minimum compensation requirements............ may affect
H. The proposed action does not include fencing or includes fencing that complies with the
attached key -deer friendly fencing guidelines ................................................ NLAA
The proposed action includes fencing that is not compliant with the attached key -deer
friendly fencing guidelines. Habitat fragmented by non -compliant fencing will be
considered a deduction from the not -to -exceed habitat acreage losses referenced in the
BO.............................................................................................. may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation through
protection or restoration of habitat, and/or monetary contributions to accomplish the
aforementioned activities, according to the participating community's land development
regulations. The Service has reviewed the following participating communities' Codes of
Ordinances governing habitat compensation and found them to meet minimum recommended
habitat compensation: Monroe County, Part II, Chapter 18, Sections 118-2 and 118-8; City of
Marathon, Article 2, Chapter 106; Village of Islamorada, Part II, Chapter 30, Article VII,
Division 4, Section 30-1616; and Key West, Part II, Subpart B, Chapter 110, Article V, Section
110-223 and Section 110-225, and Article VI, Division 2, Section 110-287 and Division 3,
Section 324 and 327. The Cities of Key Colony Beach and Layton were determined to not have
ordinances that meet the minimum recommended habitat compensation. If the participating
community proposes to modify the habitat compensation requirements of their ordinance,
additional review by the Service will be necessary.
If habitat compensation is being provided in excess of the minimum recommended, the Service
may consider the additional compensation as a credit to the not to exceed habitat acreage losses
referenced in the BO. To be considered for credit, the compensation must be like for like habitat
May 20, 2012 3
Key Deer
Species Assessment Guide
compensation and credit will be granted at half value. For example, if 4 acres of additional
compensation are provided, the credit granted would be 2 acres. This partial credit is considered
appropriate as existing vegetation currently provides benefit and the credit vegetation may not
provide the same habitat benefit until later in time.
Monitoring and Reporting Effects
For the Service to monitor cumulative effects and to track incidental take exempted for the Key
deer, it is important for FEMA and the NFIP participants to monitor the number of permits and
provide information to the Service regarding the number of permits issued. In order to meet the
reporting requirements in the BO, we request that FEMA and/or the NFIP participants send to
the Service an annual database summary consisting of: project date, permit number, project
acreage, native impact acreage, amount of acres and/or number of trees/plants replaced as habitat
compensation, and project location in latitude and longitude in decimal degrees.
Literature Cited
Folk, M.L. 1991. Habitat of the Key deer. Ph.D. Dissertation. Southern Illinois Univ.,
Carbondale, Illinois.
Hardin, J.W. 1974. Behavior, socio-biology, and reproductive life history of the Florida Key
deer, Odocoileus virginianus clavium. Ph.D. Dissertation. Southern Illinois University;
Carbondale, Illinois.
Klimstra, W.D., J.W. Hardin, and N.J. Sihey. 1978. Population ecology of Key deer. Pages 313-
321. In: P.H. Oehser and J. S. Lea (eds.) Research Reports, 1969. National Geographic
Society; Washington, D.C.
Klimstra, W.D., J.W. Hardin, N.J. SiIvy, B.N. Jacobson, and V.A. Terpening. 1974. Key deer
investigations final report: December 1967 - June 1973. U.S. DOI, Fish and Wildlife
Service, National Key Deer Refuge; Big Pine Key, Florida.
Lopez, R.R. 2001. Population ecology of Florida Key deer. Ph.D. Dissertation. Texas A&M
University, College Station, Texas.
Lopez, RR, N.1. Silvy, B.L. Pierce. P.A. Frank, M.T. Wilson, and K.M. Burke. 2004a.
Population density of the endangered Florida Key deer. Journal of Wildlife Management
68(3):570-575.
Lopez, R R., N. 1. Silvy, B. L. Pierce, P. A. Frank, M. T. Wilson, and K. M. Burke. 2004b.
Population density of the endangered Florida Key deer. Journal of Wildlife Management.
68(3):570-575.
May 20, 2012 4
Key Deer
Species Assessment Guide
Lopez, R.R, N.J. Silvy, RN. Wilkens, P.A. Frank, M.1. Peterson, and M.N. Peterson. 2004c.
Habitat -use patterns of Florida Key deer: implications of urban development. Journal of
Wildlife Management 68(4):900-908.
Monroe County. 2009. Geospatial Land Cover Dataset of the Florida Keys. Photo Science,
Inc.St. Petersburg, Florida
May 20, 2012
Key Deer
Species Assessment Guide
KEY DEER FENCING GUIDELINES
May 2012
The Key deer is a federally -listed endangered species endemic to the Lower Florida Keys. Loss
of habitat is the major threat to the future of the Key deer. Nearly half of the islands in the range
of the deer are currently inhabited by people, and eight have large subdivisions and commercial
areas. Habitat degradation and fragmentation have reduced the Key deer's distribution and
affected behavior. Habitat fragmentation from fencing and development restricts deer
movements, creating bottlenecks that interfere with their ability to reach permanent water and
feeding areas and often forcing them to cross roads in areas of heavy traffic where they are
susceptible to roadkill. Vehicular strikes are the greatest known source of deer deaths, and
typically account for about 70 percent of all known deaths.
Fencing of private property throughout the range of the Key deer is currently regulated by the
Monroe County Comprehensive Plan and Land Development Regulation (114-20), with more
stringent rules in effect for Big Pine and No Name Keys (114-20(3)). Specific deer -friendly
design standards are incorporated in the code and include fence setbacks from roadways and
maximum fencing allowances under various zoning and habitat conditions. As fencing of private
lands throughout the range of the Key deer proceeds, comprehensive fencing guidelines are
needed that recognize the needs of the private citizens and the cumulative impacts of fencing on
the Key deer herd.
To this end, we are applying the Monroe County Comprehensive Plan and Land Development
Regulation below, in its entirety, to Big Pine and No Name Keys. For other islands with parcels
that fall within the Key deer focus area but outside of Big Pine and No Name Keys, we are only
applying items c. through f. of Sec. 114-20(3) (below). Only a minor segment of the Key deer
population (about 10%) occurs outside of Big Pine and No Name Keys, and there are no prior
records of negative fencing effects on Key deer on other islands where habitat occurs in large,
native patches and is less likely to be fragmented by fencing.
Monroe County Big Pine and No Name Keys Fencing Regulations 114-20(3)
Sec. 114-20(3). Big Pine and No Name Key.
The purpose of this section is to recognize and provide for the particular habitat needs of the
Florida Key Deer (Odocoileus virginianus clavium) on Big Pine Key and No Name Key so that
deer movement throughout Big Pine Key and No Name Key is not hindered while allowing for
reasonable use of minimal fencing for the purposes of safety and protection of property. In
addition to all other standards set forth in this section, all fences located on Big Pine Key and No
Name Key shall meet the standards of this subsection as listed below:
In the improved subdivision (IS) land use district, fences shall be set back as follows:
May 20, 2012 6
Key Deer
Species Assessment Guide
1. On canal lots, fences shall be set back at least 15 feet from the edge of abutting
street rights -of -way; and built to the edge of all other property lines or as approved
through a U.S. Fish and Wildlife Service coordination letter; and
2. On all other lots, fences shall be set back at least 15 feet from the edge of abutting
street rights -of -way, at least five feet from side property lines and at least ten feet
from the rear property line, or as approved through a U.S. Fish and Wildlife
Service coordination letter.
b. In all other land use districts, fences may enclose up to a maximum of and not to exceed
the net buildable area of the parcel only.
C. Enclosure of the freshwater wetlands by fences is prohibited.
d. All fences shall be designed and located such that Key Deer access to native habitat,
including pinelands, hammocks, beach berms, salt marshes, buttonwoods and mangroves
is maintained wherever possible.
e. All fences shall be designed and located such that Key Deer corridors, as identified by the
U.S. Fish and Wildlife Service, shall be maintained.
f. Fences shall not be permitted without a principal use except where the enclosed area
consists of disturbed lands or disturbed land with exotics.
May 20, 2012
7
OPTION TWO
Section 1 tl ( )2. L:
MEMORANDUM
MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT
We strive to be caring, professional and fair
DATE: June 20, 2012
TO: BOARD OF COUNTY COMMISSIONERS
THROUGH: ROMAN GASTESI; COUNTY ADMINISTRATOR
FROM: CHRISTINE HURLEY, AICP; GROWTH MANAGEMENT DIVISION DIRECTOR
Subject: AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS AMENDING CHAPTER 122 FLOODPLAIN
REGULATIONS, CREATING SECTION 122-8 PROVIDING FOR INCLUSION
OF UNITED STATES FEDERAL EMERGENCY MANAGEMENT AGENCY
(FEMA) AND UNITED STATES FISH AND WILDLIFE SERVICE (FWS)
REQUIREMENTS IN PERMIT REFERRAL PROCESS IMPLEMENTATION
AND DETERMINATIONS; PROVIDING FOR SEVERABILITY; PROVIDING
FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR
TRANSMITTAL TO THE STATE LAND PLANNING AGENCY AND THE
SECRETARY OF STATE; PROVIDING FOR CODIFICATION; PROVIDING
FOR AN EFFECTIVE DATE.
Meeting: June 20, 2012 (Continued from May 16, 2012)
1
2 I REQUEST
3
4 The Planning & Environmental Resources Department is proposing amendments to the text
5 of the Monroe County Floodplain Ordinance by amending § 122-2 and§ 122-3 and adding
6 § 122-8 of the Monroe County Code (MCC) in order to revise the regulations pertaining to
7 the review of applications for floodplain development permits to address the April 2010 U.S.
8 Fish & Wildlife Services Biological Opinion and the Reasonable & Prudent Alternatives
9 (RPA's) related to the Federal Emergency Management Agency's (FEMA) administration of
10 the National Flood Insurance Program in Monroe County. Specifically, the proposed
11 amendments provide for a Permit Referral Process for review of development permits that
12 may affect Federally listed species.
13
14
15
16
Page 1 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 II RELEVANT PRIOR COUNTY ACTIONS AND BACKGROUND INFORMATION:
2
3 In 1997 the Service completed a Biological Opinion (BO) for the effects of the NFIP on
4 Federally protected species in the Florida Keys. The 1997 BO found the NFIP jeopardized
5 nine species in the Keys. In 2003 the Service re -initiated consultation and amended the 1997
6 BO and concluded that the effect of the NFIP would result in jeopardy on eight of 10 species
7 evaluated in the BO. Then, a second amended complaint in 2003 was filed by the plaintiffs
8 against FEMA and the Service pursuant to the Endangered Species Act and the
9 Administrative Procedures Act. The plaintiffs won a Summary Judgment and on March 29,
10 2005 the United States District Court, Southern District of Florida (Court) issued an Order
11 ruling the Service and FEMA violated the Endangered Species Act and the Administrative
12 Procedures Act.
13
14 On September 9, 2005, the Court granted the plaintiffs' motion for an injunction against
15 FEMA issuing flood insurance on any new residential or commercial developments in
16 suitable habitats of federally listed species in the Keys. The Court also ordered the Service to
17 submit a new BO by August 9, 2006. The Service issued a new BO on August 8, 2006. On
18 April 1, 2008, FEMA and the Service filed an appeal with the United States Court of Appeals
19 for the Eleventh Circuit arguing that section 7(a)(2) of the Act did not apply to FEMA's
20 provision of flood insurance and that FEMA had fully complied with the Court's March 29,
21 2005, ruling. On February 26, 2009, the Court ordered the Service to submit a new BO by
22 March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this
23 deadline. On April 1, 2009, the United States Court of Appeals for the Eleventh Circuit
24 affirmed the judgment of the District Court. On April 30, 2010, the Service published the
25 revised BO for FEMA's administration of the NFIP in Monroe County.
26
27 The BO contains Reasonable and Prudent Alternatives (RDA's) that require Monroe County
28 and other participating communities in the Florida Keys to revise their Flood Damage
29 Prevention Ordinance(s) to reference and use an updated real estate list (referenced in RPA
30 paragraph 1) within 120 days of acceptance of this BO by the Court. On December 3, 2010
31 the Court filed a Settlement Agreement between the Plaintiffs and the Federal Defendants in
3-2 which the Federal Defendants agreed to notify the Court and the parties when Monroe
33 County and the other "participating communities" in the Florida Keys have: 1) revised their
34 Flood Damage Prevention Ordinance(s); and 2) implemented procedures to reference and use
35 the updated real estate list and Species Focus Area Maps (referenced in reasonable and
36 prudent alternative ("RPA") paragraph 1) in compliance with paragraphs 2, 3, 4, and 5 of the
37 RPA.
38
39 On November 12, 2010 the Board of County Commissioners held a public workshop to
40 discuss the RPA's and directed the County Attorney to intervene in Court and directed the
41 County Administrator to task the lobbyists with this issue.
42
43 On February 16, 2011 the BOCC directed the County Attorney to file an appeal in the matter
44 of Florida Key Deer, National Wildlife Federation, et. Al. v. FEMA and USFWS.
45
Page 2 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 On March 16, 2011, the BOCC authorized the County Attorney to file a motion for a Stay
2 and to obtain the services of Hogan Lovells to assist the County in the appeal process.
3
4 On December 2, 2011, FEMA notified Monroe County that if the County decides not to
5 implement the RPA's then Monroe County will be placed on probation.
6
7 On February 16, 2012 the FWS provided proposed revisions to the Species Assessment
8 Guides. The proposed revisions included clarification that applications that provided habitat
9 compensation in accordance with Monroe County Land Development Code Chapters 118-2
10 and 118-8 would not impact the acreage limits in Table 18 of the BO. The proposed
11 revisions to the SAG's included language that "pre -determines" that development of parcels
12 located in canal subdivisions and substantially developed subdivisions would result in a "no
13 affect" determination and would not be required to be assessed through the Permit Referral
14 Process.
15
16 In March, 2012 the Florida Legislature adopted Chapter 2012-205 Laws of Florida, effective
17 July 1, 2012, which states:
18
19 "For any development permit application filed with the county after July 1, 2012, a
20 county may not require as a condition of processing or issuing a development permit that
21 an applicant obtain a permit or approval from any state or federal agency unless the
22 agency has issued a final agency action that denies the federal or state permit before the
23 county action on the local development permit. Issuance of a development permit by a
24 county does not in any way create any rights on the part of the applicant to obtain a
25 permit from a state or federal agency and does not create any liability on the part of the
26 county for issuance of the permit if the applicant fails to obtain requisite approvals or
27 fulfill the obligations imposed by a state or federal agency or undertakes actions that
28 result in a violation of state or federal law. A county may attach such a disclaimer to the
29 issuance of a development permit and may include a permit condition that all other
30 applicable state or federal permits be obtained before commencement of the
31 development. This section does not prohibit a county from providing information to an
32 applicant regarding what other state or federal permits may apply. "
33
34 The County Attorney, outside counsel, and the Growth Management Director have proposed
35 an ordinance with alternative language to meet the RPAs, which is consistent with Federal
36 law, addresses Chapter 2012-205, Laws of Florida, and adequately protects the County
37 taxpayers against accepting that additional liability.
38
39 III REVIEW
40
41 The Growth Management Division, the County Attorney and the County's outside Counsel
42 have been working closely with FEMA and the USFWS following the BOCC meeting of
43 March 16, 2011 to reach agreement on the implementation of the RPA's and the language for
44 the required Ordinance.
45
Page 3 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 FEMA provided a draft of items for adoption to Monroe County on June 15, 2011 and
2 provided further recommendations via e-mail on October 3, 2011. These Ordinance
3 recommendations were developed by FEMA to meet the requirements of the RPA's and
4 would require the County to make permit determinations based on the Species Assessment
5 Guides (SAGS), and in the event the impact limits of Table 18 were exceeded, ultimately
6 deny a building permit. The FWS provided draft SAG's that require Monroe County to
7 review each floodplain development permit application to determine if the parcel was on the
8 list of RE #s that are within the species focus areas or buffers (Attachment C), and to confirm
9 this by reviewing the Species Focus Area Maps provided by FEMA (Attachment D). If the
10 parcel is on the list, then Monroe County staff evaluates the application in accordance with
11 the SAGs and makes the permit determination. In the event that the proposed development
12 results in a "may affect" determination, then the applicant is required to consult directly with
13 the USFWS, otherwise, Monroe County is authorized by the RPA's to issue the building
14 permit. As a result of 2012-205 Laws of Florida, the process has been modified in the event
15 of a "may affect" determination, Monroe County will issue the building permit with a
16 condition that the permittee consult with the Service and receive approval from them prior to
17 the County issuing a Notice to Proceed.
18
19 On February 16, 2012 the USFWS provided draft revisions to the Species Assessment Guide
20 (SAG) for the Lower Keys marsh rabbit that would allow the County to pre -determine that
21 the development of certain parcels within canal subdivisions and substantially developed
22 subdivisions would "Not Likely Adversely Affect" (NLAA) the lower Keys marsh rabbit. In
23 addition, the USFWS stated that a similar revision would be made to the SAG's for the Key
24 Largo cotton mouse, the Key Largo wood rat and the silver rice rat. These provisions
25 substantially reduce the County's potential exposure for liability for inverse condemnation or
26 takings claims.
27
28 The FWS correspondence (and revised SAG's) also included clarification of the habitat
29 compensation criteria. In short, the revised SAG's acknowledge that habitat compensation
30 provided to meet Monroe County Land Development Code requirements (Chapter 118-6 and
31 118-8) also meets the requirements of the FWS. Further, the revised SAG's state that the
32 Service considers the compensation as like -for -like replacement of habitat and the loss is not
33 a deduction from the not -to -exceed habitat acreage losses referenced in the BO (Table 18).
34
35 On May 20, 2012, FWS provided revised versions of the Species Assessment Guides
36 (Attachment E). These revisions include clarification on development of parcels that contain
37 and/or are adjacent to contiguous hammock greater than 1 acre in size. Development of these
38 parcels results in a "may affect" determination and further coordination with the Service will
39 be necessary. Impacts to native habitat for the affected species will be subtracted from the
40 Take authorized in the BO.
41
42 The FWS provided GIS analysis of private, vacant lands occurring within suitable habitat of
43 1 acre or more by species to determine the worst case scenario for impacts to the covered
44 species (Attachment F). This information is critical to the determination as to whether
45 Monroe County may eventually have to deny building permits based on the mandated
46 provisions of the BO, RPA's and SAG's.
Page 4 of 20
2
3
4
CH. 122-10 Floodplain Regulations
Staff Report
In this analysis, FWS excluded publicly owned lands and areas of habitat less than one acre.
This analysis provided the following information:
U.S. Fish and Wildlife Service Summary of Vacant, Privately Owned Parcels
containing or adjacent to contiguous habitat of 1 acre or more
Species
Take Issued -
Acres of Habitat
TOTAL
# Parcels in
suitable habitat
Acres of Suitable
Habitat
Cotton Mouse
217.8
809
256
Eastern Indigo
Snake
772.5
2288
2921
Key Deer
290.6
953
1823
Marsh Rabbit
83.6
859
1151
Schaus Swallowtail
217.2
809
257
Silver Rice Rat
172.3
1098
1997
Silver Rice Rat CH
36.5
98
432
Tree Cactus
249.5
1186
789
Tree Snail
249.5
1186
789
Woodrat
217.8
809
256
5
6 The FWS also analyzed the potential loss of suitable habitat based on Monroe County Land
7 Development Codes related to land clearing. Specifically, FWS calculated the potential loss
8 of suitable habitat based on 40% clearing of native habitat on parcels in Tier 2, 3 and 3A.
9 For impacts on parcels in Tier I, FWS incorporated the ROGO limits for Tier I allocations.
10 Using these assumptions, FWS calculated the following impacts over the 13 year period
11 (2010 - 2013) of the BO. Therefore, the following data does not account for the actual
12 adoption date of the proposed Ordinance.
13
TAKE (Table EA-16, BiOp pg
234)
MAX Tier1
develop
ment*
40%
Tier
2
40%
Tier
3
0
40%
SUM
Difference
(Take -
Sum)
Cotton Mouse
217.8
2.8
0.0
6.0
18.0
26.8
191.0
Eastern Indigo Snake
772.5
29.4
1.2
44.4
18.8
93.8
678.7
Key Deer
290.6
16.1
1.2
4.4
0.4
22.1
268.5
Marsh Rabbit
83.6
11.8
0.8
9.6
0.0
22.2
61.4
Schaus Swallowtail
217.2
2.8
0.0
6.0
18.0
26.8
190.4
Silver Rice Rat
172.3
16.5
1.2
j 12.0
0.8
30.5
141.8
Silver Rice Rat CH
36.5
34.7
0.0
1 0.0
0.0
34.7
1.8
Tree Cactus
249.5
14.7
0.0
7.2
18.0
39.9
209.6
Tree Snail
249.5
14.7
0.0
7.2
18.0
39.9
209.6
Woodrat
217.8
2.8
0.0
6.0
18.0
26.8
191.0
Page 5 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 In addition to the FWS analysis outlined above, Monroe County Planning and Environmental
2 Resources staff analyzed the potential habitat impacts associated with development based on
3 the number of parcels in suitable habitat (as provided by FWS) compared to proposed
4 Monroe County Land Development Code revisions that have been transmitted and are
5 expected to be adopted in September 2012. Specifically, we analyzed the potential impacts
6 that would result from every parcel in suitable habitat with the assumption that each permit
7 would result in the loss of 7,500 square feet of native habitat — the maximum clearing limit
8 for native upland habitat allowed the proposed Code revisions. This analysis yielded the
9 following:
10
Summary of Vacant, Privately Owned Parcels in suitable habitat that contain or are
contiguous to native habitat of 1 acre or greater in size.
Species
Take
Issued -
Acres of
Habitat
TOTAL
# Parcels
in suitable
habitat
Acres
of
Suitable
Habitat
Max Potential
Impact***
Cotton Mouse
217.8
809
256
139.29
Eastern Indigo Snake
772.5
2288
2921
393.94
Key Deer
290.6
953
1823
164.08
Marsh Rabbit
83.6
859
1151
147.90
Schaus Swallowtail
217.2
809
257
139.29
Silver Rice Rat
172.3
1098
1997
189.05
Silver Rice Rat CH
36.5
98
432
16.87
Tree Cactus
249.5
1186
789
204.20
Tree Snail
249.5
1186
789
204.20
Woodrat
217.8
809
256
139.29
*** Maximum potential impact assumes each permit results in the clearing of 7500
square feet of native habitat
11
12 As the table above shows, under proposed land development codes, the potential for
13 exceeding the allowable take for each species is quite low with the use of the revised SAG's.
14 Only impacts to Lower Keys Marsh Rabbit habitat and silver rice rat habitat have the
15 potential for exceeding the take limits under the scenario used for analysis, however it should
16 be pointed out that the majority of marsh rabbit and rice rat habitat consists of wetland
17 communities that have a 100% open space requirement under current County codes and
18 therefore the impacts reflected in the table likely overestimate the actual potential impacts.
19 In addition, the above analyses include parcel and acreage data for all Tier categories and the
20 majority of marsh rabbit habitat and silver rice rat habitat is in Tier I.
21
22
23
Page 6 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 An analysis of private, vacant parcels excluding Tier I parcels indicates that the probability
2 of exceeding the issued take is very low, as detailed in the following Table:
FWS Summary Analysis of privately owned, vacant parcels within
SFAMs that contain or are contiguous to native habitat of 1 acre or more
in size(excluding Tier I parcels)
Species
Take Issued -
Acres of
Habitat
TOTAL NON -Tier 1
# Parcels
Acres
Cotton Mouse
217.8
460
129
Eastern Indigo Snake
772.5
862
238
Key Deer
290.6
76
16
Marsh Rabbit
83.6
118
26
Schaus Swallowtail
217.2
460
130
Silver Rice Rat
172.3
170
36
Silver Rice Rat CH
36.5
1
0
Tree Cactus
249.5
491
133
Tree Snail
249.5
491
133
Woodrat
217.8
460
129
Combined Habitat
n/a
862
238
4
5
6 Due to the Florida Legislature adopted Chapter 2012-205 Laws of Florida, Monroe County
7 will be precluded from requiring building permit applicants to consult with the USFWS prior
8 to issuance of a building permit. Instead, if an applicant for a Monroe County building
9 permit meets all applicable County codes but proposes development activities that result in a
10 "May Affect" determination under Permit Review Process, the County will issue the building
11 permit with a condition that the applicant consult with the USFWS prior construction.
12 Further, the County will not issue a Notice to Proceed for the project until such time as the
13 applicant receives approval from the USFWS.
14
15 Staff notified property owners whose property was located within a Species Focus Area or
16 Species Focus Area buffer of the scheduled Public Hearing. Upon input regarding the
17 recommended fencing guidelines for Key Deer outside of Big Pine and No Name Keys, Staff
18 requested FWS to revise the guidelines to remove the setback restrictions and the "net
19 buildable area" limit originally provided in the SAG guidelines. FWS revised the SAG's
20 accordingly and provided a revised version to the County on June 18, 2012. Based on public
21 input resulting from the public notice, staff has refined the language in the Ordinance to more
22 accurately describe when the Permit Referral Process is applicable for permits or allocations
23 that have been tolled by property owners. Depending on individual circumstance, a property
24 owner may have tolled his permit or allocation under a variety of scenarios. Therefore, Staff
25 has revised the Ordinance to better detail these differing categories. These changes are
26 highlighted in the text below.
27
Page 7 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 Based on the above, staff is recopmmending the following amendments to Section 122
2 Floodplain Management:
4 Section 1. Section 122-2 of the Monroe County Land Development Code shall be
5 amended as follows: (additions are underlined; deletions are stfieken dwetl&
6
7 Sec.122-2. General provisions.
8
9 (a) Applicability. Except as provided for the elevated portion of a nonconforming residential
10 structure by section 122-4(a) (10), no structure or manufactured home hereafter shall be
11 located, extended, converted or structurally altered and no development shall occur, without
12 full compliance with the terms of this chapter in addition to other applicable regulations)
13 including but not limited to, 44 CFR 60.3(a)(2) of diis ehaptef-
14
15 (b) Adeption of maps Basis for Establishing Special Flood Hazard Maps; Species Focus Area
16 Maps (SFAMs) with Species Focus Area Buffers and Federally Protected Species Area Real
17 Estate (RE) List; and Species Assessment Guides (SAGs).
18 1_The areas of special flood hazard identified by the Federal Emergency Management
19 Agency (FEMA) in its Getebef 17, 1989 Fjoed jasufanee Study md Wave Height Analysis
20 February 18, 2005 Maps
21 t t�, ffieia reeve by FEMA—,with with accompanying supporting data,
�v�v�c-vsm v�rc-vccp., w�,Y-., ..,.. � -�
22 and any revisions thereof, are adopted by reference and declared to be a part of this chapter,
23 and shall be kept on file, available to the public, in the offices of the county Building
24 Department. Letter of Map Amendments, Letter of Map Revisions, Letter of Map Revision
25 Based on Fill, and Conditional Letter of Map Revisions approved by FEMA are acceptable
26 for implementation of this regulation.
27 2 Species Focus Area Maps (SFAMs) with Species Focus Area Buffers and Species
28 Real Estate (RE) List FEMA and FWS have provided the Species Focus Area Maps
29 (SFAMs) mailed to Monroe County and dated April 30, 2011, and a listing of real estate
30 numbers of parcels (RE list) emailed to Monroe County and dated November 18, 2011, that
31 are within the SFAMs and that have been identified by FWS. The SFAMs and the RE List
32 that are within the SFAMs identified by the FWS in accordance with the Biological Opinion,
33 dated April 30 2010 as amended December 14 2010, are hereby declared to be a part of this
34 ordinance The SFAMs and RE list are on file at the Monroe County Clerk's office and the
35 Monroe County Growth Management Division Office.
36 3 Species Assessment Guides (SAGS). FEMA and FWS have provided the Species
37 Assessment Guides (SAGS) mailed to Monroe County and dated May 20, 2012. These SAGs
38 are declared to be a part of this ordinance. The SAGs are on file at the Monroe County
39 Clerk's office and the Monroe County Growth Management Division Office.
40 (c) Rules for interpreting flood hazard issues. The boundaries of the flood hazard areas
41 shown on the official flood insurance rate maps may be determined by scaling distances.
42 Required interpretations of those maps for precise locations of such boundaries shall be made
Page 8 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 by the floodplain administrator, in consultation with the building official. In interpreting other
2 provisions of this chapter, the building official shall be guided by the current edition of
3 FEMA's 44 CFR, and FEMA's interpretive letters, policy statements and technical bulletins
4 as adopted by resolution from time to time by the Board of County Commissioners .
5 Additionally, the building official shall also obtain, review and reasonably use any base flood
6 elevation and floodway data available from a federal, state or other source, as criteria for
7 requiring that new construction, substantial improvements, and other developments meet the
8 criteria required in the appropriate flood zone.
9
10 Section 2. Sec. 122-3 of the Monroe County Land Development Code shall be amended
11 as follows:
12
13 Sec.122-3. — Permit requirements.
14
15 (a) The following words, terms and phrases, when used in this chapter, shall have the
16 meanings ascribed to them in this section, except where the context clearly indicates a
17 different meaning:
18
19 Adjacent to contiguous native habitat means an area of native habitat sharing a boundary at
20 one or more points of intersection with other native habitat. For purposes of this land
21 development code, an intervening road, right-of-way or easement shall not destroy the
22 adjacency of the habitat However, U.S. 1, canals and open water shall constitute a break in
23 • adjacency.
24
25 Alteration means any change or modification in construction type, materials, or occupancy.
26
27 Base flood means the flood having a one percent chance of being equaled or exceeded in any
28 given year.
29
30 Basement means any area of the building having its floor subgrade (below ground level) on all
31 sides.
32
33 Development means any manmade change to improved or unimproved real estate, including,
34 but not limited to, buildings or other structures, clearing, mining, dredging, filling, grading,
35 paving, excavation or drilling operations or storage of equipment of or materials.
36
37 Elevated building means a nonbasement building that has its lowest elevated floor raised
38 above ground level by foundation walls, shear walls, posts, piers, pilings, or columns.
39
40 Enclosure means that portion of an elevated building below the lowest elevated floor that is
41 either partially or fully shut in by rigid walls and used solely for limited storage, parking or
42 entryways. Enclosures shall not be constructed, equipped or used for habitational or other
43 purposes.
44
45
46
Page 9 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 januafy 1,
2
3 by the Federal gevemment ;me 15, 1973.
4
5
6 the rava t 6 F F 1 •.; g the lots „hig the , f etwea he o e to l
a
7
8 _
9 >
10 and in h h+� ti l thffo e Site Wilt FeSWO a the pafk
, �
Or-
11
12
13 Finishing materials means anything beyond basic wall construction pursuant to the most
14 recent FEMA Technical Bulletin, which is normally associated with habitable space.
15 Finishing materials include, but are not limited to, ceiling mold, trim, baseboards, decorative
16 finish work, wainscoting, and textured woods.
17
18 Historic Structure means any structure that is:
19 (a) Listed individually in the National Register of Historic Places (a listing maintained by the
20 Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting
21 the requirements for individual listing on the National Register;
22 (b) Certified or preliminarily determined by the Secretary of the Interior
23 as contributing to the historical significance of a registered historic district or a district
24 preliminarily determined by the Secretary to qualify as a registered historic district;
25 (c) Individually listed on state inventory of historic places in states
26 with historic preservation programs which have been approved by the Secretary of the
27 Interior; or
28 (d) Individually listed on a County inventory of historic places in communities with historic
29 preservation programs that have been certified either:
30 (1) By an approved state program as determined by the Secretary of the Interior, or
31 (2) Directly by the Secretary of the Interior in states without approved programs.
32
33 Illegal Structure or Use means a structure or use that is not a legal structure or legal use as
34 defined in this chapter.
35
36 Legal Structure means a structure that was permitted by the floodplain regulation in effect at
37 the time construction commenced on the structure in its current configuration and received a
38 permit or final inspection or certificate of occupancy for the structure in its current
39 configuration.
40
41 Legal Use means a use that was permitted by the floodplain regulations at the time the use
42 commenced on the property.
43
44 Limited storage means that which is incidental and accessory to the principal use of the
45 structure. For example, if the structure is a residence, storage should be limited to items such
46 as lawn and garden equipment, tires, and other low damage items which will not suffer flood
Page 10 of 20
CH. 122®l Floodplain Regulations
Staff Report
1. damage or can be conveniently moved to the elevated part of the building, Flood insurance
2 coverage for enclosures below the Base Flood Elevation (BFE)is very limited,,
3
4 Lowest Floor means the lowest floor of the lowest enclosed area (including basem.ent). An
5 unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access
6 or storage in an area other than a basement area is not considered a building's lowest floor;
7 provid 4, that such enclosure is not built so as to render the structure in violation of the
8 applicable non-elevation design requirements of this chapter.
9
10 Manufactured home means a structure, transportable in one or more sections, which. is It
1.1 on a permanent chassis and designed to be used with or without a permanent foundation when.
12 connected to the required utilities. The term also includes park trailer, travel trailers, and
1.3 similar transportable structures placed on a site for 180 consecutive days or longer, and
14 intended to be improved property.
15
16 A 'ark et value means the county property appraiser"s value of the structure plus 20 percent. A
17 unif6mi appraisal.report for determination of market value submitted by the applicant may be
1.8 used if the county building official considers such appraisal consistent with local construction
19 costs. Where appraisal is not accepted because it appears to be inconsistent with local
20 construction costs an applicant may request review by an independent third party appraiser
21 duly authorized by the ty® The cost of independent review shall be bonne by the applicant.
22 The reviewing appraiser shall determine if the appraisal value reasonably reflects an
23 appropriate value of the structure. The independent appraiser's determination shall be in
24 writing. Professionals preparing appraisal all be required to possess certifications as state
25 certified residential appraisers for appraising one to four family residential properties and
26 state certified general appraisers for all other properties including commercial and multi-
2 7 residential
28
29 New construction means those structures for which the start of construction commenced on or
30 after the eff6ctive date of the floodpl,ain management regulation adopted. by the communityL
31 that is 1111MIJIM. New construction is also known, as post-FIRM structures. These
32 regulations adopted by the county are based on the original maps published
33 by the Federal government,"N. MM
34
35 Nonconf6rming structure means a below base flood elevation structure or a portion. thereof
36 such as an. enclosure, materials with no openins,-flood resistant materials), which was
37 lawfully existing or permitted, and is not fully compliant with the terms of this chapter. A
38 non confortning structure shall remain.subject to the te rms of this chapter.
39
40 --u-64Uf9O- M.M.-W- a 113
41 &e4-44vefi
42 tefm
43 Aapter-.
44
45 Notice to Droceed'ineans written authorization bv the Countv- Growth. Man ement Division.
MAR499M I I-IJIVIS
46 to the vermittee authorizina vermitted devLlopment to begin.
Page 11 of 20
CH. 122-10 Floodplain Regulations
Staff Report
2 Pure manufactured home park means a manufactured home park that at the time of
3 application has no site -built residences or a park or subdivision which is limited to
4 manufactured homes only by this chapter.
5
6 Recreational vehicle means a vehicle that is:
7
8 (1) Built on a single chassis;
9
10 (2) Four hundred square feet or less when measured at the largest horizontal projection;
11
12 (3) Designed to be self-propelled or permanently towable by a light duty truck; and
13
14 (4) Designed primarily not for use as a permanent dwelling but as temporary living
15 quarters for recreational, camping, travel or seasonal use.
16
17 Start of construction means (for other than new construction or substantial improvements
18 under the Coastal Barrier Resources Act) includes substantial improvements, and means the
19 date the building permit was issued, provided the actual start of construction, repair,
20 reconstruction, rehabilitation, addition, placement or other improvement was within 180 days
21 of the permit date. For substantial improvements the actual start of construction means the first
22 alteration of any wall, ceiling, floor, or other structural part of a building whether or not the
23 alteration affects the external dimensions of the building. The actual start means either the first
24 placement of permanent construction of a structure on a site, such as the pouring of slab or
25 footings, the installation of piles, the construction of columns, or any work beyond the stage of
26 excavation; or the placement of a manufactured home on a foundation. Permanent construction
27 does not include land preparation, such as clearing, grading and filling, nor does it include the
28 installation of streets and/or walkways, nor does it include excavation for a basement, footings,
29 piers, or foundations or the erection of temporary forms, nor does it include the installation on
30 the property of accessory buildings, such as garages or sheds not occupied as dwelling units or
31 not part of the main structure.
32
33 Substantial damage means damage of any origin sustained by a structure whereby the cost of
34 restoring the structure to its before damaged condition would equal or exceed 50 percent of the
35 market value of the structure before the damage occurred. All structures that are determined to
36 be substantially damaged are automatically considered to be substantial improvements,
37 regardless of the actual repair work performed. If the cost necessary to fully repair the structure
38 to its before damage condition is equal to or greater than 50% of the structure's market value
39 before damages, then the structure must be elevated (or flood proofed if it is non-residential) to
40 or above the Base Flood Elevation (BFE), and meet other applicable NFIP requirements. Items
41 that may be excluded from tewafd the cost to repair include plans,
42 specifications, survey costs, permit fees, and other items which are separate from
43 to the repair. Items that may also be excluded includes demolition
44 or emergency repairs (costs to temporarily stabilize a building so that iti s safe to enter to
45 evaluate and identify required repairs) and improvements to items outside the building, such as
46 the driveway, septic systems, wells, fencing, landscaping and detached structures.
Page 12 of 20
CH. 122-10 Floodplain Regulations
Staff Report
2
>
4
5
>
6
7
8
9 tr-iggefed
sah4y by the Aet that the stmetwe
is being
improved
of r-epai
10
efAy the
11
>
12
13
,
t,,
fer-
er-e
will
be lAe
14 are
in ex S ef ess ff
eentinuederae"aaray
15
16
17 Substantial improvement means any reconstruction, rehabilitation, addition, or other
18 improvement of a structure, the cost of which equals or exceeds 50 percent of the market value
19 of the structure before the "start of construction" of the improvement. This term includes
20 structures which have incurred "substantial damage, "regardless of the actual repair work
21 performed. The term does not, however, include either:
22
23 1. Any project for improvement of a structure to correct existing violations of state or local
24 health, sanitary, or safety code specifications which have been identified by the local
25 building official and which are the minimum necessary to assure safe living conditionsi or
26 2. The cost of repairs required to remedy health safety, and sanitary code deficiencies can be
27 deducted from the overall cost of an improvement, but only if:
28 a. an appropriate regulatory official such as a building official, fire marshal, or health
29 officer was informed about and knows the extent of the code related deficiencies,
30 and
31 b. the deficiency was in existence prior to the damage event or improvement and will
32 not be triggered solely by the fact that the structure is being improved or repaired.
33
34 In addition for any repair required to meet health, sanitary, and safety codes, only the
35 minimum necessary to assure safe living conditions should be deducted, including
36 those improvements required by Chester 11 2012 Florida Accessibility Code. Costs of
37 r_epairs that are in excess of the minimum necessary for continued occupancy or use
38 will be counted toward the cost of the overall improvement; or
39 -2.3. Any alterations of a "historic structure," provided that the alteration will not preclude
40 the structure's continued designation as a "historic structure."
41 Floodplain management requirements for new construction apply to substantial improvements.
42 Supplemental Information for Substantial Improvement
43 The basic types of improvements the could be made to structures include but are not limited to
Page 13 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 afe rehabilitations or reconstructions that do not increase square footage, and lateral or vertical
2 additions that do increase square footage.
3 Rehabilitation or reconstruction would be a partial or complete "gutting" and replacement of
4 internal workings and may or may not include structural changes. If this action is substantial,
5 i.e., over 50 percent of the structure's market value, it is considered new construction, and the
6 entire building must be elevated to or above the Base Flood Elevation (BFE) (or floodproofed
7 if the building is non-residential).
8 For a lateral addition, if the substantial improvement is to add a room or rooms outside the
9 footprint of the existing building, only the addition is required to be elevated to or above the
10 BFE, i.e.; the existing building does not have to be elevated. If the proposed lateral addition
11 also includes rehabilitation or remodeling of the existing building, then the whole proiect as a
12 combination of work must be considered. Vertical additions would require that the entire
13 structure be elevated to or above the BFE. Even though the improvement itself is entirely
14 above the BFE, it is dependent on the walls and foundation of the existing building for
15 structural support.
16 (b) Except for work specifically exempted under chapter 6, the building official shall
17 require building permits/Floodplaln Development Permits for all proposed construction or
18 other improvements within areas of special flood hazard. In addition to the standard
19 requirements for a building permit, an application for a building permit for construction or
20 improvements within areas of special flood hazard shall contain the information and
21 certifications set forth in a form provided by the Building Official.
22 (c) All building foundations shall rest directly on natural rock, on concrete piling
23 driven to rock or on friction piling (concrete or wood) and shall be anchored to such rock
24 support by holes, 16 inches in minimum diameter, augured into such rock a minimum depth of
25 three feet and reinforced by a minimum of four #5 vertical rods extending up into the piers
26 above a minimum of 18 inches and tied to the vertical steel of the pier. Wooden pilings shall
27 be locked into 16-inch auger foundations by at least a #5 rebar extending through the piling
28 and three to five inches beyond.
29 (d) The permit holder shall provide a floor elevation after the lowest floor is completed or,
30 in instances where the structure is subject to the regulations applicable to coastal high -hazard
31 areas, after placement of the lowest horizontal structural members of the lowest floor.
32 Floodproofing certification for nonresidential structures in A -Zones shall be provided prior to a
33 certificate of occupancy or prior to final inspection.
34 (e) Within 21 calendar days of establishment of the lowest floor elevation, or upon placement
35 of the lowest horizontal structural members of the lowest floor, whichever is applicable, it shall
36 be the duty of the permit holder to submit to the building official a certification of the elevation
37 of the lowest floor within A zones or the lowest portion of the lowest horizontal structural
38 members of the lowest floor within V zones, whichever is applicable, as built in relation to
39 mean sea level. Such certification shall be prepared by or under the direct supervision of a
40 registered land surveyor or professional engineer and certified by the same. When
41 floodproofing is used for a building within A zones, the certification shall be prepared by or
42 under the direct supervision of a professional engineer or architect and certified by same. Any
Page 14 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 work done within the 21-day period and prior to submission of the certification shall be at the
2 permit holder's risk. The building official shall review the floor elevation survey data
3 submitted. Deficiencies detected by such review shall be corrected by the permit holder
4 immediately and prior to further progressive work being permitted to proceed. Failure to
5 submit the survey or failure to make the corrections required hereby shall be causes to issue a
6 stop -work order for the project.
7 (f) The degree of flood protection required in this chapter is reasonable for regulatory
8 purposes and is based on scientific and engineering considerations. Larger floods can and will
9 occur on rare occasions. Flood heights may be increased by manmade or natural causes. This
10 chapter does not imply that land outside the areas of special flood hazard or uses permitted
11 within such areas will be free from flooding or flood damages. This chapter shall not create
12 liability on the part of the county or any officer or employee thereof for any flood damages that
13 result from reliance on this chapter or any administrative decision lawfully made thereunder.
14 Section 3. The Monroe County Land Development Code is amended by adding Section
15 122-8 as follows:
16 Sec. 122-8. Inclusion of United States Federal Emergency Management Agency (FEMA
17 and United States Fish and Wildlife Service (FWS) Required Permit Referral Process
18 (PRP) in Final Permit Determinations for Development
19 (a) Purpose and intent. It is the purpose of Section 122-8 to implement regulations that
20 will assure consistent with the 10t' Amendment to the U.S. Constitution, state and
21 County regulations proper record retention coordination and notification of FEMA
22 and FWS regarding permit applications filed with or issued by Monroe County,
23 inclusive of FEMA/FWS requirements agreed to by the applicant.
24 b) Lands to which this Section apply. See Section 122-2 (b) 2
25 (c) Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on the
26 FWS SFAMs may be determined by scaling distances. Required interpretations of
27 those maps for precise locations of such boundaries shall be made by the County
28 Planning Director or his/her designee, in consultation with the building official.
29 (d) Administration of Development Approval in Species Focus Areas.
30
31 1. SFAM Review Required. For parcels or lots shown within the SFAMs in
32 which an application for development permit has been made, if the SFAM indicates
33 the parcel or lot contains only unsuitable habitat for any of the following species:
34 Key Largo Cotton Mouse Key Largo woodrat, Key tree -cactus, Lower Keys marsh
35 rabbit Eastern indigo snake Key deer, Schaus swallowtail butterfly, silver rice rate,
36 and Stock Island tree snail, and the parcel or lot is not listed on the RE list, the
37 Planning Director or his/her designee shall provide for a notation in the
38 development application 12ermit files that indicates:
39 a. The name of the official that reviewed the development
40 application for FWS requirements;
Page 15 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1
2
b. The date of the review;
3
4
c. The date of the SFAM and RE list used to conduct the review.
5
6
Once the review has established that a parcel or lot contains unsuitable
7
habitat action maybe taken on the permit application for development by Monroe
8
County staff.
9
10
2 FWS Technical Assistance Permit Requirements. For parcels or lots
11
shown within the SFAMs in which an application for a permit for development has
12
been made including 1) expanding the footprint of a structure; and/or 2) Mandin
13
clearing in habitat (including native vegetation removal), and/or 3) placement of
14
fencing into key deer habitat if the SFAM indicates the parcel or lot contains
15
suitable habitat for any of the following species: Key Largo Cotton Mouse, Key
16
Largo wood rat Key tree -cactus Lower Keys marsh rabbit, Eastern indigo snake,
17
Key deer, Schaus swallowtail butterfly, silver rice rat and/or Stock Island tree
18
snail and the parcel or lot is listed on the RE list the Planning Director or his/her
19
designee shall use the SAGS to determine whether a floodplain development permit
20
application requires:
21
22
a incorporation of FWS SAG requirements as conditions into the
23
Monroe County permit and the County may issue the permit, pursuant to all
24
ai)Rlicable codes; or
25
26
b if, according to the SAGs the proposed development needs
27
technical assistance by the Service the County shall issue the permit in
28
accordance with Chapter 2012-205 Laws of Florida, indicating a Notice to
29
Proceed must be obtained prior to any construction removal of vegetation,
30
or commencement of development, with a condition that:
31
1. the applicant seek and obtain technical assistance from the
32
Service; and
33
2. the applicant obtain prior to the issuance of the Notice to
34
Proceed all applicable state or federal permits or approvals
35
pursuant to Section 122-2 (a); and
36
3. In accordance with the Florida Building Code and Monroe
37
County Section 6-103 (b) the permit shall expire after 180 days;
38
and
39
4. If the permit expires the applicant shall be required to reapply
40
for the permit.
41
42
c For a floodplain develop-mentpernut application that requires the
43
Services' technical assistance Monroe County shall provide the application
44
to the Service weekly. Based on the Services technical assistance, the
45
applicant shall submit the FWS written requirements to the County. If the
46
applicant agrees to the FWS requirements in writing, Monroe County may
Page 16 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1
then issue a NOTICE TO PROCEED that includes the technical assistance
2
requirements provided by the federal agency to avoid possible impacts on
3
federally listed (threatened or endangered species, as conditions in the
4
Monroe Countypermit.
5
6
d For a development permit application that requires mitigation
7
and/or compensation for adverse effects to native habitat, monetary
8
compensation generated will be applied to restoration and/or purchase of
9
native habitat.
10
11
e The County shall maintain an applicant acceptance form, of the
12
Service requirements, in the permit file.
13
14
f For purposes of this Chapter the Notice to Proceed shall be written
15
authorization from the Monroe County Growth Management Division to the
16
permittee that the permitted development activities may begin.
17
18
g. If the parcel is within an area previously covered by a Habitat
19
Conservation Planand where that Habitat Conservation Plan has expired at
20
the time of development permit application the County shall apply this
21
Permit Referral Process.
22
23
h If the property owner does not agree to the FWS technical
24
assistance requirements to be included in the development permit as
25
conditions the County shall not issue the notice to proceed and shall rescind
26
the previously issued development permit.
27
28
3 Provision for Flood Hazard Reduction and Avoiding
29
impacts on federally listed (threatened or endangered) species Enforcement. All
30
proposed development shall meet the conditions established on the floodplain
31
development permit and/or notice to proceed which includes FWS technical
32
assistance requirements included as conditions on the Monroe County development
33
permits to avoid possible impacts on federally -listed species (threatened or
34
endangered) Violation of this Chapter, including any development constructed not
35
in accordance with the FWS requirements included as conditions on the Monroe
36
County development permit derived through use of the SAGs or through technical
37
assistance by FWS are hereby deemed to be violations of the County Code and
38
may be enforced utilizing the administrative enforcement procedures set forth in
39
Chapter 8 Monroe County Code of Ordinances. Further, Section 118-11 shall be
40
utilized to require environmental restoration standards.
41
42 4 Permit issuance for previously tolled Rate of Growth Ordinance (ROGO)
43 allocations or building permits Building permits and allocations have been tolled
44 under authority of Monroe County Resolutions 420-2005, 166-2006, 185-2007 &
45 219-2008 and 282-2011 as a result of the injunction prohibiting FEMA from
46 issuing flood insurance policies under the National Flood Insurance Program which
Page 17 of 20
CH. 122-10 FloodpWn Regulations
Staff Report
1. was imDosed in the case of Florida. KU peer et, al.,v. Fy ate et. al., 90-1003,7-
Z
2 CIV-Moo�re. In order for those Dersons whose allocations or whose build in
3 were tolled eet their obligations
4 under the Federal Endangered Species Act. the followin is EMU1 ed-
5
6
7 a. Owners with allocations who do not need coordination with FWS after they
8 are processed IT
throup-h the Permit Referral Process:
9 a. Have 180 days from the date II NINON
1.0 m a Count v issued written notice to
11 pick a their buildim IMMENIUM
1.2
13 b. Have 300 days from the to of a c2mpnLjamN writt notice if th e
1.4 is a need to redesim an onsite,wastewater tree systern to receive
15 a Dermit from the DeRgqMent of Healffi DOH and .A up their
16 buildine vermits.
17
18 b. Owners widt building,Rgq�jj l..who do not need coordination with FWS after
19 they are processed through the Permit Referral Process:
20 ave 180 d ys from the date
21 MUQgW9QWWUa—Count--- issued written notice, to
y
22 recornmence develo ment and receive a passed ectiond
23 ME"
24
25 b. Have 300 days from the to of a Comitv issued written.noti.(ge ifthere
26 is a need to red.esim an onsite wastewater,treatment system to remve
27anent and receive a
28 Dassed insDection.
29
30 c. Pe it applic g6jons processed tLou the Penmt, Referral Process that result
31. in. a "mgy affect determinatioif for the proposed develo ment throu the
p ......gh
32 aDDlication of the Species Assessment Guides which reguire the pennittee to
33 coordinate with FWS shall have a total of 360 dgygE from the d:,,a, te of a County
34 issued wriften notice to conclude the reqUiE .1 2ordjnalion widl FWS and
35 _�,o ie!ude coordination mrith FWS and teceive a
.........................................................................................................................................-
36 Notice to Proceed ffimn Monroe Comty. This timeframe may be extended b
...............on
roe
the 'ate that he
38 has timely and actively sought coordination.
39
40 d. Proverties for which a Permit has been. issued and ftj±�� EMU
41 ill be reguired to be vLoc W— jessedd through the
rmit reviews
42 Permit Referral rinit reviews that result in
43 determination" for the proposed development through_jtghe a_Mlication of the
44 SDecies, Assessment Guides which
require the 2ennittee to ordinate with
45 FWS shall have a total. of-1�60da�sftoni-tliqla 1"�e-of a COU'rLty isst,I,ed written
46 notice to conclude the r eaug-111 coordination witil , FW& cornmence
- ...........
Page 18 of 20
CH. 122-10 Floodplain Regulations
Staff Report
1 development and receive a passed inspection from Monroe County. This
2 timeframe may be extended by the Planning Director if the Wlicant can
3 affirmatively demonstrate that he has timely and actively sought coordination.
4
5 Section 4. Severability.
6 If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be
7 adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
8 impair, invalidate, or nullify the remainder of this Ordinance, but the effect thereof shall be
9 confined to the section, paragraph, subdivision, clause, sentence or provision immediately
10 involved in the controversy in which such judgment or decree shall be rendered.
11 Section 5. Conflicting Provisions.
12 In the case of direct conflict between any provision of this ordinance and a portion or provision
13 of any appropriate federal, state or county law, rule, code or regulation, the more restrictive
14 shall apply.
15 Section 6. Filing, Transmittal: and Effective Date.
16 This ordinance shall be filed in the Office of the Secretary of State of the State of Florida, and
17 transmitted to the State Land Planning Agency, but shall not become effective until a notice is
18 issued by the State Land Planning Agency or Administrative Commission approving the
19 ordinance pursuant to Chapter 380, Florida Statutes, and after any appeal period has expired
20 and the injunction has been lifted in the case of Florida Key Deer et. al-v. Fugate et. al., 90-
21 10037-CIV-Moore.
22 Section 7. Codification
23 The provisions of this ordinance shall be included and incorporated into the Code of
24 Ordinances of the County of Monroe, Florida, as an addition or amendment thereto and shall
25 be appropriately numbered to conform to the uniform numbering system of the Code.
26
27
28 IV RECOMMENDATION
29
30 Staff has found that the proposed text amendment would be consistent with the provisions of
31 §102-158(d)(5)(b): 1. Changed projections (e.g., regarding public service needs) from those
32 on which the text or boundary was based; 2. Changed assumptions (e.g., regarding
33 demographic trends); 3. Data errors, including errors in mapping, vegetative types and
34 natural features described in volume I of the plan; 4. New issues; 5. Recognition of a need for
35 additional detail or comprehensiveness; or 6. Data updates.
36
37 Specifically, staff has found that the proposed text amendments are necessary due to new
38 issues associated with FEMAs administration of the NFIP.
39
Page 19 of 20
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6
7
8
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CH. 122-10 Floodplain Regulations
Staff Report
Staff recommends that the Board of County Commissioners amend the Monroe County Code
as stated in the text of this staff report.
Attachments:
A. U.S. Fish and Wildlife Service Biological Opinion
B. January 11, 2011 Settlement Agreement with Amended Reasonable and Prudent
Alternatives (RPA's)
C. Species Focus Area Parcel List
D. Species Focus Area Maps
E. Species Assessment Guides
F. USFWS GIS Analysis of Potential impacts in Unincorporated Monroe County
Page 20 of 20
Original Version (June 8, 2012) 1 Revised Version (June 19, 2012)
Existing construction means structures for which
the start of construction commenced before the
effective date of the floodplain management
regulations adopted by the community January 1,
1974. Existing construction is also known as pre -
FIRM structures. These regulations adopted by the
county January 1, 1974 are based on the original
maps published by the Federal government June
15, 1973.
Existing manufactured home park means a
manufactured home park or subdivision for which
the construction of facilities for servicing the lots
on which the manufactured homes are to be
affixed (including, at a minimum, the installation of
utilities, the construction of the streets, and either
final site grading or the pouring of concrete pads is
completed before the effective date of the
floodplain management regulations adopted by
the community January 1, 1975, and in which, at
the time of application, there are no site built
residences or the park or subdivision is limited to
manufactured home by this chapter.
Sec 122-8(d) 4 Permit issuance for previously
tolled Rate of Growth Ordinance (ROGO)
allocations or building permits
a. Owners who do not need coordination
with FWS after they are processed through
Permit Referral Process have 180 days
from the date of rendition of the Court's
order lifting the injunction, or from the
date of a County issued written notice, to
pick up their building permits, whichever is
greater.
Adiacent to contiguous native habitat means an
area of native habitat sharing a boundary at one or
more points of intersection with other native
habitat For purposes of this land development
code an intervening road, right-of-way or
easement shall not destroy the adjacency of the
habitat However U.S. 1 canals and open water
shall constitute a break in adjacency
Sec 122-8(d) 4 Permit issuance for previously
tolled Rate of Growth Ordinance (ROGO)
allocations or building permits
a. Owners with allocations who do not need
coordination with FWS after they are processed
through the Permit Referral Process:
1. Have 180 days from the date of rendition
of the Court's order lifting the injunction, or from
the date of a County issued written notice to pick
up their building permits; or
2. Have 300 days from the date of a county
issued written notice, if there is a need to redesign
an onsite wastewater treatment system, to receive
a permit from the Department of Health(DOH) and
b. Owners who do not need coordination
with FWS after they are processed through the
Permit Referral Process and who need to re -design
their on -site wastewater treatment system and
receive a permit from Department of Health (DOH)
have 300 days from the date of rendition of the
Court's order lifting the injunction, or from the
date of a County issued written notice, to pick up
their building permit, whichever is greater.
C. Flood Plain Development Permit
applications processed through the Permit Referral
Process that result in a "may affect determination"
for the proposed development through the
application of the Species Assessment Guides
which require the permittee to coordinate with
FWS shall have 360 days to conclude the required
coordination with FWS and pick up the building
permit from Monroe County. This timeframe may
be extended by the Planning Director if the
applicant can affirmatively demonstrate that he
has timely and actively sought coordination.
pick up their building permits.
b. Owners with building permits who do not
need coordination with FWS after they are
processed through the Permit Referral Process:
1. Have 180 days from the date of of
rendition of the Court's order lifting the injunction,
or from the date of a County issued written notice,
to recommence development and receive a passed
inspection., whichever is greater ;or
2. Have 300 days from the date of a County
issued written notice, if there is a need to redesign
an onsite wastewater treatment system to receive
a permit from the DOH, recommence
development and receive a passed inspection.
C. Permit applications processed through the
Permit Referral Process that result in a "may affect
determination" for the proposed development
through the application of the Species Assessment
Guides which require the permittee to coordinate
with FWS shall have a total of 360 days from the
date of a County issued written notice to conclude
the required coordination with FWS and receive a
Notice to Proceed from Monroe County. This
timeframe may be extended by the Planning
Director if the applicant can affirmatively
demonstrate that he has timely and actively
sought coordination.
d. Properties for which a Permit has been
issuedand put on hold for which development has
not commenced will be required to be processed
through the Permit Referral Process. For Permit
reviews that result in a "may affect determination"
for the proposed development through the
application of the Species Assessment Guides
which require the permittee to coordinate with
FWS shall have a total of 360 days from the date of
a County issued written notice to conclude the
required coordination with FWS, commence
development and receive a passed inspection from
Monroe County. This timeframe may be extended
by the Planning Director if the applicant can
affirmatively demonstrate that he has timely and
actively sought coordination.