Item Q6BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 16, 2012 Division: Growth Management
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 creating Section 122-10, providing inclusion
of Federal Emergency Management Agency (FEMA) and the United States Fish and Wildlife Service (USFWS)
April 30, 2010 Biological Opinion for the Department of Homeland Security's FEMA administration of the
National Flood Insurance Program (NFIP), as amended December 14, 2010 in final 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-XX 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. "
HB 503 is awaiting signature by the Governor, but as of the date of this summary the Bill had not been signed.
Therefore Growth Management staff has prepared two (2) draft Ordinances, one to amend Chapter 122 in
accordance with the RPA's with the restrictions of HB 503 and an alternative Ordinance to amend Chapter 122
without HB 503.
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.
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Staff requests this item be continued to the June 20, 2012 BOCC
Meeting.
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 OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
MEMORANDUM
MONROE COUNTY GROWTH MANAGEMENT DIVISION
We strive to be caring, professional and fair
To: Roman Gastesi, County Administrator
From: Christine Hurley, AICP
Division Director
Date: , April 27, 2012
RE: USFWS Biological Opinion
Section 7 of the Endangered Species Act (ESA) requires Federal agencies to "consult"
with USFWS to determine whether there would be negative effects of their activities on
federally protected species and their habitat, prior to taking action within an area that may
impact species or their habitat.
In 1990, the National Wildlife Federation, Florida Wildlife Federation, and the Defenders
of Wildlife (plaintiffs) filed suit against FEMA in the United States District Court,
Southern District of Florida (Court) and later added the USFWS, claiming that FEMA
had not consulted with USFWS while implementing the National Flood Insurance
Program (NFIP), by providing Federal flood insurance to home owners that constructed
homes within areas that may impact federally protected species and their habitat. During
this time period, the USFWS issued Biological Opinions for the effects of the NFIP on
federally protected species in the Keys in 1997 with an amendment in 2003 and another
BO in August 2006.
In 2005, the Court granted plaintiffs' motion for summary judgment and entered an
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.
On April 1, 2008, the IIth Circuit Court of Appeals affirmed the order granting the
injunction.
A list of real estate numbers was developed of properties within geographic areas of
suitable habitat, and those properties were stopped from obtaining flood insurance if they
constructed homes or commercial businesses. The plaintiffs agreed to eliminate some
properties from the list, if requested by the property owners and it appeared the habitat
was not significant, enabling some owners to obtain flood insurance after review of the
sites and the habitat.
Actions taken by County after FEMA Injunction
The Monroe County Commission adopted ve resolutions (Resolution 420-2005;
166-006, 185-2007; and 219-2008 and 22-2011—) 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 11 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 pen -nits.
Property owners may be eligible for Senate Bill 3601 Senate Bill 1752 or HB 7207
permit extensions. However under HB 7207, if previous extensions total )jars
, the
permit ex irtior date _cannot be extended. (these extensions are not applicable to
allocations).
Actions taken by USFWS and FEMA after FEMA injunction
The Court ordered the USFWS to submit a new BO. USFWS submitted the BO on April
30, 2010. The new BO found jeopardy (based on habitat loss and indirect effects from
development expected to occur over a 13-year period of implementation of the NFIP for:
Key Largo cotton mouse, Key Largo woodrat, Key tree -cactus, and Lower Keys marsh
rabbit. Development within the habitat areas would also result in incidental take for:
eastern indigo snake, Key deer, Schaus swallowtail butterfly, Stock Island tree snail, and
silver rice rat (species and habitat) in Monroe County.
As required by the ESA, the BO provides Reasonable and Prudent Alternatives (RPA) for
the four jeopardy species and Reasonable and Prudent Measures (RPM) for the five non -
jeopardy species. The Court directed the USFWS and FEMA that the RPA and RPM in
the new BO be less voluntary and do more to protect against habitat loss and
fragmentation and otherwise account for cumulative effects of the permitted projects
(homes/businesses). Based on input from the Plaintiff and interested parties, the RDA's
were subsequently revised and the revised RPA's became final with the execution of the
Settlement Agreement on January 6, 2011.
The amended RPA and RPM (beginning on page 164 of the BO) include actions the
County must take to ensure that FEMA's 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. A general summary of
how the process should work, is as follows:
I. Usingnew-County aerial photographyand geospatialland cover mapping (habitat
a s , 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 Bated and will maintain a list of real estate numbers for the
properties that occur within listed species habitat based upon the Species Focus
Area Maps.
3. FWS will —provided the maps to FEMA for distribution to the participating
communities in Monroe County. FEMA provided the S ecies Focus Area Mags
to Monroe County on November 10, 2011,
4. FEMA require_ participating communities in the County to revise their
Flood Damage Prevention Ordinances within 12 months of acceptance of the BO
by the Court (January 6, 2012) to:
A. Use "the list" of real estate numbers and Species Focus Area Maps to evaluate
where development may affect species habitat.
a. If an area to be developed is not on the list and not within the
boundaries of the Species Focus Area Maps, no consultation with
FWS is needed.
b. If area to be developed is on "the list" and/ or within the boundaries of
the Species Focus Area Maps, whether the property is in an area not
subject to NFIP or not:
The USFWS will ;A,edr. vAth.. County and paAieipmia.
GOW,&nUflities to d-evelep keyshelp GOUR4Y Staff ._
coveredRed
Species Assessment Guides (SAG' s). The SAG's provide
guidance and recommendations that if iMlernented wilol
minimize adverse affects to the species. If the use of
these keys- result in a determination
VAgicular project, the Service supports this determination. If
the use of this key results in a determination of "not
adversely
determination and no additional correMondence_
If the use of this key results in a "may affect" determination,
then no permit can be issued and additional coordination
mitigation
If these measures are established with
the land owner and become part of the development permit
then no further USFWS review will be required.
c. For properties that require further USFWS review, the County will
forward `weekly" the applications for new development (occurring in
the Species Focus Areas where the development expands the footprint
of a structure that requires clearing of or placement of fencing into
vegetation) to USFWS. The USFWS will then determine:
1. If development is NOT LIIKELY TO ADVERSELY
AFFECT -- this finding and an specific ro'ect
modifications required shall_ be incorporated into the
County -permit AND ENFORCED or the County will
request that FEMA deny individual flood insurance for
the development being permitted. FEMA will provide
a yearly report to USFWS of permits receiving this
determination.
2. If development MAY ADVERSELY AFFECT
individually or cumulatively — this finding may
necessitate changes in the permit conditions. The
finding_ and conditions shall be incorporated into the
County permit AND ENFORCED or the County will
request that FEMA deny individual flood insurance for
the development being permitted. Any -take, of
habitat for these sites must not exceed the levels
identified within the April 2010 BO. FEMA will also
provide a yearly report to USFWS of these types of
permits that will include the amount of incidental take
exempted under the incidental take provision in the BO.
As permits are issued in areas where habitat exists for
the nine species evaluated in the BO, and where a
property would participate in the NFIP, the amount of
the habitat that is cleared or impacted resulting from
development (the direct FEMA Action Impact in the
table below) shall not exceed the following acreages
(only acreage that is cleared or impacted is counted
toward standard — entire site acreage is not counted). If
total acreage for a given species is exceeded, re -
initiation of formal consultation is required for that
species.
If a permit is issued for property that occurs in a
Species Focus Area, but is not subject to the NFIP, or
any other Federal program (e.g., Army Corps of
Engineers Federal permit, Federal grant, etc.) the
acreage impacted will be deducted from the Cumulative
Impact Acreage in the table below. An example of a
cumulative impact project is utility or school
construction. The USFWS will work with the County
and municipalities to identify and track these impacts.
Species
FEMA Action
Cumulative
Im act Acres
Im act acres
Eastern Indigo
1789
645
Snake
Key deer
291
81
Key Largo
218
35
Cotton Mouse
Key largo
218
35
woodrat
Key tree cactus
587
70
Lower Keys
84
37
marsh rabbit
Schaus
372
43
swallowtail
Silver rice rat
172
75
Critical Habitat --
37
40
silver rice rat
Stock Island tree
587
70
snail
B. FEMA will request that each participating community which proposes a
change to the Rate of Growth Ordinance or the Tier classifications provide
notice of the proposed change to FEMA and the USFWS. In the event that
current Habitat Conservation Plans (HCP) designated in the Keys under
section 10 of the ESA expire, all properties addressed by these HCPs that fall
within the Species Focus Areas will be referred to the Service for review per
the guidelines in this RPA.
C. FEMA will coordinate with the County and the USFWS in development of a
brochure, website and materials for addressing predation by domestic and
feral cats in areas within the Species Focus Areas and their buffer zones to
give to permuittees. 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 g2ecies that cannot be corrected or offset FEMA
will initiate procedures for Drobation or suspension of community ehgibil
for flood insurance.
E. FEITjLA will conduct trainin
implementation of the Permit Referral Process. FENIA conducted an initial
training session in Key Largo, Florida on March 6, 2012v
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.
I I I OFI UAM IM Ij Mai= jal III
pit
- - . MN
I I i
there would be no impact on Table 18.
rM
RINI M.4 7731 P.M. M.
- M"W I Ii a
Sec. 101-1. - Definitions
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:
Development means the carrying out of any building activity, the making of any material
change in the use or appearance of any structure on land or water, or the subdividing of land into
two or more parcels.
1) Except as provided in subsection (3) of this definition, for the purposes of this
chapter, the following activities or uses shall be taken to involve "development":
a. A reconstruction, alteration of the size, or material change in the extemal
appearance of a structure on land or water;
b. A change in the intensity of use of land, such as an increase in the number of
dwelling units in a structure or on land or a material increase in the number of
businesses, manufacturing establishments, offices or dwelling units in a
structure or on land;
c. Alteration of a shore or bank of a seacoast, lake, pond or canal, including any
work or activity which is likely to have a material physical effect on existing
coastal conditions or natural shore and inlet processes;
d. Commencement of drilling (except to obtain soil samples), mining or
excavation on a parcel of land;
e. Demolition of a structure;
f. Clearing of land, including clearing or removal of vegetation and, including
significant disturbance of vegetation or substrate (soil) manipulation,
including the trimming of mangroves to the extent allowed by law; and
g. Deposit of refuse, solid or liquid waste, or fill on a parcel of land.
2) The term "development" includes all other activity customarily associated with it.
When appropriate to the context, "development" refers to the act of developing or to
the result of development. Reference to any specific operation is not intended to
mean that the operation or activity, when part of other operations or activities, is not
development. Reference to particular operations is not intended to limit the generality
of this definition.
3) For the purpose of this chapter, the following operations or uses shall not be taken to
involve "development":
a. Work involving the maintenance, renewal, improvement or alteration of any
structure, if the work affects only the color or decoration of the exterior of the
structure or interior alterations that do not change the use for which the structure
was constructed;
b. Work involving the maintenance of existing landscaped areas and existing
rights -of --way such as yards and other nonnatural planting areas;
c. A change in use of land or structure from a use within a specified category of
use to another use in the same category unless the change involves a change
from a use permitted as of right to one permitted as a minor or major conditional
use or from a minor to a major conditional use;
d. A change in the ownership or form of ownership of any parcel or structure;
e. The creation or termination of rights of access, riparian rights, easements,
covenants concerning development of land, or other rights in land unless
otherwise specifically required by law; or
f. The clearing of survey cuts or other paths of less than four feet in width and the
mowing of vacant lots in improved subdivisions and areas that have been
continuously maintained in a mowed state prior to the effective date of the plan,
the trimming of trees and shrubs and gardening in areas of developed parcels
that are not required open space and the maintenance of public rights -of -way
and private accessways existing on the effective date of the ordinance from
which this chapter is derived or approved private rights -of -way.
4) The term "development" also means the tourist housing use or vacation rental use of
a dwelling unit, or a change to such a use (i.e., conversion of existing dwelling units
to vacation rental use). Vacation rental use of a dwelling unit requires building
permits, inspections and a certificate of occupancy.
9 ■' 1
00Floodplain Regulations
Staff Report without HB 503
t,
MEMORANDUM
MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT
We strive to be caring, professional and fair
DATE:
TO:
THROUGH:
FROM:
May 1, 2012
ROMAN GASTESi; COUNTY ADMINISTRATOR
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 122-10
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 SEVERABILTTY;
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: 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 adding § 122-10 of the Monroe County Code
6 (MCC) in order to revise the regulations pertaining to the review of applications for
7 Foodplain development permits to address the April 2010 U.S. Fish & Wildlife Services
8 Biological Opinion and the Reasonable & Prudent Alternatives (RDA's) related to the
9 Federal Emergency Management Agency's (FEMA) administration of the National Flood
10 Insurance Program in Monroe County.
11
12 II RELEVANT PRIOR COUNTY ACTIONS AND BACKGROUND INFORMATION:
13
14 In 1997 the Service completed a Biological Opinion (BO) for the effects of the NFIP on
15 Federally protected species in the Florida Keys. The 1997 BO found the NFIP jeopardized
16 nine species in the Keys and then in 2003 the Service re -initiated consultation and amended
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1 the 1997 BO and concluded that the effect of the NFIP would result in jeopardy on eight of
2 10 species evaluated in the BO. Then, a second amended complaint in 2003 was filed by the
3 plaintiffs against FEMA and the Service pursuant to the Endangered Species Act and the
4 Administrative Procedures Act. The plaintiffs won a Summary Judgment and on March 29,
5 2005 the United States District Court, Southern District of Florida (Court) issued an Order
6 ruling the Service and FEMA violated the Endangered Species Act and the Administrative
7 Procedures Act.
8
9 On September 9, 2005, the Court granted the plaintiffs' motion for an injunction against
10 FEMA issuing flood insurance on any new residential or commercial developments in
11 suitable habitats of federally listed species in the Keys. The Court also ordered the Service to
12 submit a new BO by August 9, 2006. The Service issued a new BO on August 8, 2006. On
13 April 1, 2008, FEMA and the Service filed an appeal with the United States Court of Appeals
14 for the Eleventh Circuit arguing that section 7(a)(2) of the Act did not apply to FEMA's
15 provision of flood insurance and that FEMA had fully complied with the Court's March 29,
16 2005, ruling. On February 26, 2009, the Court ordered the Service to submit a new BO by
17 March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this
18 deadline. On April 1, 2009, the United States Court of Appeals for the Eleventh Circuit
19 affirmed the judgment of the District Court. On April 30, 2010, the Service published the
20 revised BO for FEMA's administration of the NFIP in Monroe County.
21
22 The BO contains Reasonable and Prudent Alternatives (RDA's) that require Monroe County
23 and other participating communities in the Florida Keys to revise their Flood Damage
24 Prevention Ordinance(s) to reference and use an updated real estate list (referenced in RPA
25 paragraph 1) within 120 days of acceptance of this BO by the Court. Then, on December 3,
26 2010 the Court filed a Settlement Agreement between the Plaintiffs and the Federal
27 Defendants in which the Federal Defendants agreed to notify the Court and the parties when
28 Monroe County and the other "participating communities" in the Florida Keys have: 1)
29 revised their Flood Damage Prevention Ordinance(s); and 2) implemented procedures to
30 reference and use the updated real estate list and Species Focus Area Maps (referenced in
31 reasonable and prudent alternative ("RPA") paragraph 1) in compliance with paragraphs 2, 3,
32 4, and 5 of the RPA.
33
34 On November 12, 2010 the Board of County Commissioners held a public workshop to
35 discuss the RPA's and directed the County Attorney to intervene in Court and directed the
36 County Administrator to task the lobbyists with this issue.
37
38 On February 16, 2011 the BOCC directed the County Attorney to file an appeal in the matter
39 of Florida Key Deer, National Wildlife Federation, et. Al. v. FEMA and USFWS.
40
41 On March 16, 2011, the BOCC authorized the County Attorney to file a motion for a Stay
42 and to obtain the services of Hogan Lovells to assist the County in the appeal process.
43
44 On December 2, 2011, FEMA notified Monroe County that if the County decides not to
45 implement the RPA's then Monroe County will be placed on probation.
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2 On February 16, 2012 the FWS provided proposed revisions to the Species Assessment
3 Guides. The proposed revisions included clarification that applications that provided habitat
4 compensation in accordance with Monroe County Land Development Code Chapters 118-2
5 and 118-8 would not impact the acreage limits in Table 18 of the BO. The proposed
6 revisions to the SAG's included language that "pre -determines" that development of parcels
7 located in canal subdivisions and substantially developed subdivisions would result in a "no
8 affect" determination and would not be required to be assessed through the Permit Referral
9 Process.
10
11
12
13
14
15
16
17
18
19
20
The Growth Management Division, the County Attorney and the County's outside Counsel
have been working closely with FEMA and the USFWS following the BOCC meeting of
March 16, 2011 to reach agreement on the implementation of the RPA's and the language for
the required Ordinances.
FEMA provided a draft of items for adoption to Monroe County on June 15, 2011 and
provided further recommendations via e-mail on October 3, 2011 (Appendix 1). These
Ordinance recommendations were developed by FEMA to meet the requirements of the
21 RPA's and would require the County to make permit determinations based on the Species
22 Assessment Guides (SAGs), and in the event the impact limits of Table 18 were exceeded,
23 ultimately deny a building permit. The FWS provided draft SAG's that would require
24 Monroe County to review each floodplain development permit application to determine if the
25 parcel was on the list of RE #s that are within the species focus areas or buffers, and to
26 confirm this by reviewing the Species Focus Area Maps provided by FEMA. If the parcel is
27 on the list, then Monroe County staff evaluates the application in accordance with the SAGS
28 and make the permit determination. In the event that the proposed development results in a
29 "may affect" determination, then the applicant is required to consult directly with the
30 USFWS, otherwise, Monroe County is authorized by the RPA's to issue the building permit.
31
32 The Growth Management Division asserted that the responsibility of determining the
33 potential effects of proposed development on the covered species lay with the USFWS and
34 not with Monroe County and prepared a draft Ordinance that would route building permit
35 applications that proposed impacts to parcels within the Species Focus Area Maps directly to
36 the USFWS. This draft Ordinance was provided to FEMA and FWS for their review relative
37 to compliance with the Settlement Agreement and RPAs. On February 16, 2012 the FWS
38 circulated updated guidance on the implementation of the RPA's (Appendix II). This
39 guidance clarified in writing that only development that resulted in a "May Affect"
40 determination would impact Table 18. Furthermore, the guidance included revisions to the
41 SAG's that would allow staff to pre -determine that the development of Tier III parcels that
42 were within canal subdivisions or substantially developed subdivisions would Not Likely
43 Adversely Affect (NLAA) any of the covered species. Further, after additional coordination
44 with the FWS and FEMA, it was determined that these "pre -determined parcels" would not
45 be required to be evaluated through the permit review process. These revisions to the SAGs
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1 include provisions that substantially reduce the County's potential exposure for liability for
2 inverse condemnation or takings claims.
3
4 Based on the guidance contained in the FWS letter and the revised SAG's, Growth
5 Management Division staff recommends the following addition to Section 122 Floodplain
6 Management:
7
8 Section 1. The Monroe County Land Development Code shall be amended as follows:
9
10 Sec. 122-2. General provisions.
11
12 * *
13 (b) Basis for Establishing Special Flood Hazard maps; Species Focus Area Maps
14 (SFAMs) and Real Estate (RE) List; and Species Assessment Guides (SAGS).
15 1. Special Flood Hazard Maps. The areas of special flood hazard identified by the Federal
16 Emergency Management Agency (FEMA) in its October 17, 1989 Flood Insurance Study and
17 Wave Height Analysis for Monroe County, Florida, Unincorporated Areas, as amended February
18 18, 2005, with accompanying supporting data, are adopted by reference and declared to be a part
19 of this chapter, and shall be kept on file, available to the public, in the offices of the county
20 Building Department. Letters of Map Amendment, Letters of Map Revision, Letters of Map
21 Revision Based on Fill, and Conditional Letters of Map Revision approved by FEMA are
22 acceptable for implementation of this regulation.
23 2. Species Focus Area Maps (SFAMs) and Real Estate (RE) List. FEMA and FWS have
24 provided the Species Focus Area Maps (SFAMs) mailed to Monroe County and dated April 30,
25 2011, and a listing of real estate numbers of parcels (RE list) emailed to Monroe County and
26 dated November 18, 2011, that are within the SFAMs and that have been identified by FWS.
27 The SFAMs and the RE List that are within the SFAMs identified by the FWS in accordance
28 with the Biological Opinion, dated April 30, 2010, as amended December 14, 2010, are hereby
29 declared to be a part of this ordinance. The SFAMs and RE list are on file at the Monroe County
30 Clerk's office and the Monroe County Growth Management Division Office.
31
32 3. Species Assessment Guides (SAGs). FEMA and FWS have provided the Species
33 Assessment Guides (SAGS) mailed to Monroe County and dated VC, 2012 are declared to be a
34 part of this ordinance. The SAGS are on file at the Monroe County Clerk's office and the
35 Monroe County Growth Management Division Office.
36
37 Section 2. A new Section 122-10 of the Monroe County Land Development Code shall
38 be created as follows:
39
40 Sec. 122-10.Inclusion of United States Federal Emergency Management Agency
41 (FEMA) and United States Fish and Wildlife Service (FWS) Permit Referral Process (PRP)
42 Requirements in Final Permit Determinations
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2 (a) Purpose and intent. It is the purpose of Section 122-10 to implement regulations
3 that will assure, consistent with the l0a' Amendment to the U.S. Constitution, state and County
4 regulations, proper record retention, coordination, and notification of FEMA and FWS regarding
5 permit applications filed with or issued by Monroe County, inclusive of FEMA/FWS
6 requirements agreed to by the applicant.
7
8 (b) Lands to which this Section apply. See Section 122-2 (2) and (3)
9
10 (c) Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on
11 the FEMA SFAMs may be determined by scaling distances. Required interpretations of those
12 maps for precise locations of such boundaries shall be made by the County Planning Director or
13 his/her designee, in consultation with the building official.
14
15 (d) Administration of Development Approval in Species Focus Areas.
16 a. SFA Review Required. For parcels or lots shown within the SFAMs in which an
17 application for development permit has been made, if the SFAM indicates the parcel or lot
18 contains only unsuitable habitat for any of the following species: Key Largo Cotton Mouse, Key
19 Largo wood rat, Key tree -cactus, Lower Keys marsh rabbit, Eastern indigo snake, Key deer,
20 Schaus swallowtail butterfly, silver rice rate, and Stock Island tree snail, and the parcel or lot is
21 not listed on the RE list, the Planning Director or his/her designee shall provide for a notation in
22 the development application permit files that indicates:
23 i. The name of the official that made the determination;
24
25 ii. The date of the determination;
26
27 iii. The date of the SFAM and RE list used to make the determination.
28
29 Once the determination has been made that a parcel or lot contains unsuitable habitat,
30 action may be taken on the permit application by Monroe County staff.
31
32 b. FWS Permit Conditions. For parcels or lots shown within the SFAMs in which
33 an application for development permit that 1) expands the footprint of a structure; or 2) expands
34 associated clearing of; or 3) includes placement of fencing into native habitat has been made, if
35 the SFAM indicates the parcel or lot contains suitable habitat for any of the following species:
36 Key Largo Cotton Mouse, Key Largo wood rat, Key tree -cactus, Lower Keys marsh rabbit,
37 Eastern indigo snake, Key deer, Schaus swallowtail butterfly, silver rice rat, and/or Stock Island
38 tree snail, and the parcel or lot is listed on the RE list, the Planning Director or his/her designee
39 shall use the SAGs to determine whether a floodplain development permit application requires:
40
41 i. incorporation of FWS conditions into the Monroe County permit; or
42
43 ii. needs technical assistance by the service.
44
Page 5 of 8
Floodplain Regulations
Staff Report without HB 503
1 For a floodplain development permit application that requires the Services' technical
2 assistance, Monroe County shall provide the application to the service weekly. Based on the
3 Services technical assistance, Monroe County shall condition the floodplain development permit
4 to incorporate the Service recommendations to avoid possible impacts on federally -protected
5 endangered species. The County shall maintain an Acceptance Form of the Service
6 recommendations in the permit file.
7
8 iii. If the parcel is within an area previously covered by a Habitat Conservation
9 Plan, and where that Habitat Conservation Plan has expired at the time of development
10 permit application, the County shall apply this Permit Referral Process.
11
12
13
14 iii. Based on the requirements contained in the FWS letter, the County shall
15 require the owner of the property to sign a form acknowledging agreement to the FWS
16 conditions and the County shall maintain the acknowledgement form in the permit file.
17
18 iv. The County shall, based on the acknowledgement form from the property
19 owner, incorporate the FWS letter conditions into any final Monroe County development
20 permit.
21
22 V. If the property owner does not agree to the FWS conditions, the County
23 shall not accept the application for development permit.
24
25 c. Provision for Flood Hazard Reduction and Avoiding impacts on federally listed species
26 Enforcement. All proposed development shall meet the conditions established on the floodplain
27 development permit based on the Service recommendations to avoid possible impacts on
28 federally -protected endangered species. Violation of thisChapter, including any development
29 constructed not in accordance with the FWS conditions derived through use of the SAGS or
30 through technical assistance by FWS, are hereby deemed to be violations of the County Code
31 and may be enforced as follows:
32
33 i. The County may utilize the administrative enforcement procedures set
34 forth in Chapter 8, Monroe County Code of Ordinances;
35
36 ii. The County's Growth Management Director may make a formal
37 complaint to the U.S. FWS Office of Law Enforcement;
38
39 iii. The County may file an action in a court of competent jurisdiction seeking
40 damages as well as injunctive and/or equitable relief;
41
42 iv. The County Floodplain Administrator may notify FEMA that the property
43 is in violation of this ordinance and should be considered for treatment under § 1316 of
44 the National Flood Insurance Act; and/or
45
Page 6 of 8
Floodplain Regulations
Staff Report without HB 503
1 V. Knowing violations of this section may be prosecuted in the same manner
2 as misdemeanors are prosecuted in the name of the State in a court having jurisdiction of
3 misdemeanors by the prosecuting attorney thereof and upon conviction shall be punished
4 by a fine not to exceed $500 and/or imprisonment in the county jail not to exceed 60
5 days. Each day a violation exists shall constitute a separate offense.
6
7 d. Permit issuance for previously tolled Rate of Growth Ordinance (ROGO) allocations or
8 building permits. Building permits and allocations have been tolled under authority of Monroe
9 County Resolutions 420-2005, 166-2006, 185-2007 & 219-2008 and 282-2011 as a result of the
10 injunction against FEMA for the issuance of flood insurance policies under the National Flood
11 Insurance Program in the case of Florida Key Deer et. al.,v. Fugate et. al., 90-10037-CN-
12 Moore. For those allocations or building permits that were tolled:
13
14
15 i. Owners who do not need coordination with FWS after they are processed through the
16 FEMA and FWS Permit Referral Process have 180 days from the date of the judge's
17 order to lift the injunction, and from the _date of a County issued written notice, to
18 pick up their building permits, whichever is greater.
19 ii. Owners who do not need coordination with FWS after they are processed through the
20 FEMA and FWS Permit Referral Process and who need to re -design their on -site
21 wastewater treatment system and receive a permit from Department of Health (DOH)
22 have 300 days from the date of the judge's order to lift the injunction, and from the
23 date of a County issued written notice, to pick up their building permit, whichever is
24 greater.
25 iii. Flood Plain Development Permit applications processed through the FEMA and FWS
26 Permit Referral Process that result in a "may affect determination" for the proposed
27 development through the application of the Species Assessment Guides which require
28 the permittee to consult with FWS shall have 360 days to conclude the required
29 coordination with FWS and pick up the building permit from Monroe County. This
30 timeframe may be extended by the Planning Director if the applicant can
31 affirmatively demonstrate that he has timely and actively sought coordination.
32
33 Section 3. Severability.
34 If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance
35 shall be adjudged by any court of competent jurisdiction to be invalid, such judgment
36 shall not affect, impair, invalidate, or nullify the remainder of this Ordinance, but the
37 effect thereof shall be confined to the section, paragraph, subdivision, clause, sentence or
38 provision immediately involved in the controversy in which such judgment or decree
39 shall be rendered.
40 Section 4. Conflicting Provisions.
Page 7 of 8
Floodplain Regulations
Staff Report without HB 503
1 In the case of direct conflict between any provision of this ordinance and a portion or
2 provision of any appropriate federal, state or county law, rule, code or regulation, the
3 more restrictive shall apply.
4 Section 5. Filing, Transmittal, and Effective Date.
5 This ordinance shall be filed in the Office of the Secretary of State of the State of Florida,
6 and transmitted to the State Land Planning Agency, but shall not become effective until a
7 notice is issued by the State Land Planning Agency or Administrative Commission
8 approving the ordinance pursuant to Chapter 380, Florida Statutes, and after any appeal
9 period has expired.
10 Section 6. Codification
11 The provisions of this ordinance shall be included and incorporated into the Code of
12 Ordinances of the County of Monroe, Florida, as an addition or amendment thereto and shall
13 be appropriately numbered to conform to the uniform numbering system of the Code.
14
15
16
17 IV RECOMMENDATION
18
19 Staff has found that the proposed text amendment would be consistent with the provisions of
20 §102-158(d)(5)(b): 1. Changed projections (e.g., regarding public service needs) from those
21 on which the text or boundary was based; 2. Changed assumptions (e.g., regarding
22 demographic trends); 3. Data errors, including errors in mapping, vegetative types and
23 natural features described in volume I of the plan; 4. New issues; 5. Recognition of a need for
24 additional detail or comprehensiveness; or 6. Data updates.
25
26 Specifically, staff has found that the proposed text amendments are necessary due to new
27 issues associated with FEMAs administration of the NFIP.
28
29 Staff recommends that the Board of County Commissioners amend the Monroe County Code
30 as stated in the text of this staff report.
31
Page 8of8
2 ORDINANCE NO, -2012
3
4 AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS AMENDING CHAPTER 122 FLOODPLAIN
6 REGULATIONS, CREATING SECTION 122-10 PROVIDING FOR
7 INCLUSION OF UNITED STATES FEDERAL EMERGENCY
8 MANAGEMENT AGENCY (FEMA) AND UNITED STATES FISH AND
9 WILDLIFE SERVICE (FWS) REQUIREMENTS IN PERMIT REFERRAL
10 PROCESS IMPLEMENTATION AND DETERMINATIONS; PROVIDING
11 FOR SEVERABILTTY; PROVIDING FOR REPEAL OF CONFLICTING
12 PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE STATE LAND
13 PLANNING AGENCY AND THE SECRETARY OF STATE; PROVIDING
14 FOR CODIFICATION; PROVIDING FOR AN EFFECTIVE DATE.
15
16
17 WITHOUT ADDRESSINGSTATE 1,
18
19 WHEREAS, the National Flood Insurance Program (NFIP) is a Federal program enabling
20 property owners in participating communities to purchase flood insurance in exchange for the
21 community's adoption of floodplain management regulations to reduce future flood damages; and
22
23 WHEREAS, in 1990 the National Wildlife Federation, Florida Wildlife Federation, and the
24 Defenders of Wildlife filed suit against the Federal Emergency Management Agency (FEMA) claiming
25 FEMA was not consulting with the U.S. Fish and Wildlife Service (Service) as required by the
26 Endangered Species Act in their administration of the National Flood Insurance Program (NFIP) in
27 Monroe County, Florida; and
28
29 WHEREAS, in 1997 the Service completed a Biological Opinion (BO) for the effects of the
30 NFIP on Federally protected species in the Florida Keys; and
31
32 WHEREAS, the 1997 BO found the NFIP jeopardized nine species in the Keys; and
33
34 WHEREAS, in 2003 the Service re -initiated consultation and amended the 1997 BO and
35 concluded that the effect of the NFIP would result in jeopardy on eight of 10 species evaluated in the
36 BO; and
37
38 WHEREAS, in a second amended complaint in 2003 the plaintiffs filed suit against FEMA and
39 the Service pursuant to the Endangered Species Act and the Administrative Procedures Act; and
40
41 WHEREAS, on March 29, 2005 the United States District Court, Southern District of Florida
42 (District Court) granted summary judgment in favor of the Plaintiffs which found that the Service and
43 FEMA violated the Endangered Species Act and the Administrative Procedures Act; and
44
45 WHEREAS, on September 9, 2005, the District Court entered an order enjoining FEMA from
46 issuing flood insurance under the NFIP on any new residential or commercial developments in suitable
47 habitats of federally listed species in the Keys; and
48
Pagel of 7
49 WHEREAS, the District Court also ordered the Service to submit a new BO by August 9, 2006.
50 The Service issued a new BO on August 8, 2006; and
51
52 WHEREAS, on April 1, 2008, the United States Court of Appeals for the Eleventh Circuit
53 affam.ed the District Court's rulings of March 29, 2005 and September 9, 2005;; and
54
55 WHEREAS, On February 26, 2009, the District Court ordered the Service to submit a new BO
56 by March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this deadline; and
57
58 WHEREAS, on April 30, 2010, the Service published the revised BO for FEMA's
59 administration of the NFIP in Monroe County; and
60
61 WHEREAS, the BO contains "Reasonable and Prudent Alternatives" (RDA's) that require
62 Monroe County and other participating communities in the Florida Keys to revise their Flood Damage
63 Prevention Ordinance(s) to reference and use the updated real estate list (referenced in RPA paragraph
64 1) within 120 days of acceptance of this BO by the Court, and;
65
66 WHEREAS, on January 11, 2011, the District Court approved a Settlement Agreement between
67 the Plaintiffs and the Federal Defendants in which the Federal Defendants agreed to notify the Court
68 and the parties when Monroe County and the other "participating communities" in the Florida Keys
69 have: 1) revised their Flood Damage Prevention Ordinance(s); and 2) implemented procedures to
7o reference and use the updated real estate list and Species Focus Area Maps (referenced in reasonable and
71 prudent alternative ("RPA') paragraph 1) in compliance with paragraphs 2, 3, 4, and 5 of the RPA; and
72
73 WHEREAS, on December 2, 2011, FEMA notified Monroe County that if the County did not
74 implement the RPA's by January 11, 2012, then Monroe County would have been placed on probation
75 on May 10, 2012.1n response to the County's requested time extension, FEMA requested and the Court
76 granted an extension to June 30, 2012 for the ordinance revisions and permit referral process
77 implementation; and
78
79 WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
8o advised the Board that adoption of the RPA's; ordinance language; and originally drafted Species
81 Assessment Guides (SAGS) suggested by the Federal agencies would have resulted in increased
82 exposure to the County for liability for inverse condemnation or takings claims; and
83
84 WHEREAS, FEMA and the Service revised the SAGS to include provisions that substantially
85 reduce the County's potential exposure for liability for inverse condemnation or takings claims; and
86
87 WHEREAS, On March 19, 2012, FEMA provided comments (attached as Exhibit XX) on the
88 County's DRAFT Ordinance, transmitted by the County to FEMA; and
89
90 WHEREAS, because the Florida Constitution prohibits the County from incorporating future
91 federal statutes and regulations into its existing ordinances, the County is unable to adopt the
92 "subsequent revisions" to the Species Focus Area Maps (SFAMs) or Species Assessment Guides
93 (SAGs) into this ordinance as desired by FEMA, until the subsequent revisions are published and
94 adopted by the then sitting Board of County Commissioners pursuant to the process set forth in Florida
95 law; see, e.g., Abbott Laboratories v. Mylan Pharmaceuticals, 15 So. 3d 642 (Fla. 1' DCA 2009); and
96
Page 2 of 7
97 WHEREAS, the County has revised said ordinance; and
98 WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
99 proposed an ordinance with alternative language to meet the RPAS, which is consistent with Federal
l0o law, and adequately protects the County taxpayers against accepting that additional liability;
101
102 WHEREAS, the September 9, 2005 District Court injunction will only be lifted by the Court if
103 the FWS Biological Opinion and Reasonable and Prudent Alternatives, which requires property owners
104 within the species focus areas and buffer areas to go through the Permit Referral Process, are
105 implemented by each of the participating communities;
106
107 WHEREAS, any property owner has an obligation to comply with the Federal Endangered
108 Species Act;
109
110 WHEREAS, the County has an obligation to comply with the Federal Endangered Species Act;
111
112 WHEREAS, subject to resolutions 420-2005; 166-2006; 185-2007; 219-2008 and 282-2011,
113 property owners are able to "toll" their building permits and ROGO allocations because they were not
114 eligible for flood insurance as a result of the September 9, 2005 District Court injunction;
115
116 WHEREAS, the only way the Court will terminate the 2005 District Court injunction is if
117 participating communities comply with the BO RPA's;
118
119 WHEREAS, this Ordinance is being adopted to provide owners with tolled building permits
12o and/or ROGO allocations a way to develop in a manner consistent with the Endangered Species Act and
121 that will be eligible for national flood insurance;
122
123 WHEREAS, the Monroe County Planning Commission during a regular meeting held on April
124 xx, 2012, reviewed, discussed and approved the Sr. Director of Planning and Environmental Resources'
125 recommendation to the Planning Commission for the revisions to Chapter 122 of the Monroe County
126 Land Development Code;
127
128
129 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
130 COMMISSIONERS OF MONROE COUNTY, FLORIDA:
131 Section 1. The Monroe County Land Development Code shall be amended as follows:
132
133 Sec. 122-2. General provisions.
134 *
135 (b) Basis for Establishing Special Flood Hazard maps; Species Focus Area Maps (SFAMs) and
136 Real Estate (RE) List; and Species Assessment Guides (SAGS).
137 1. Special Flood Hazard Maps. The areas of special flood hazard identified by the Federal
138 Emergency Management Agency (FEMA) in its October 17, 1989 Flood Insurance Study and Wave
139 Height Analysis for Monroe County, Florida, Unincorporated Areas, as amended February 18, 2005,
140 with the most current official maps approved by FEMA, with accompanying supporting data, and any
141 revisions thereof, are adopted by reference and declared to be a part of this chapter, and shall be kept on
142 file, available to the public, in the offices of the county Building Department. Letters of Map
Page 3 of 7
143 Amendment, Letters of Map Revision, Letters of Map Revision Based on Fill, and Conditional Letters
144 of Map Revision approved by FEMA are acceptable for implementation of this regulation.
145 2. Species Focus Area Maps (SFAMs) and Real Estate (RE) List. FEMA and FWS have
146 provided the Species Focus Area Maps (SFAMs) mailed to Monroe County and dated April 30, 2011,
147 and a listing of real estate numbers of parcels (RE list) emailed to Monroe County and dated November
148 18, 2011, that are within the SFAMs and that have been identified by FWS. The SFAMs and the RE
149 List that are within the SFAMs identified by the FWS in accordance with the Biological Opinion, dated
15o April 30, 2010, as amended December 14, 2010, are hereby declared to be a part of this ordinance. The
151 SFAMs and RE list are on file at the Monroe County Clerk's office and the Monroe County Growth
152 Management Division Office.
153 3. Species Assessment Guides (SAGS). FEMA and FWS have provided the Species Assessment
154 Guides (SAGS) mailed to Monroe County and dated XX, 2012 are declared to be a part of this
155 ordinance. The SAGs are on file at the Monroe County Clerk's office and the Monroe County Growth
156 Management Division Office.
157
158 Section 2. The Monroe County Land Development Code is amended by adding Section 122-10
159 as follows:Sec. 122-10.Inclusion of United States Federal Emergency Management Agency (FEMA)
160 and United States Fish and Wildlife Service (FWS) Permit Referral Process (PRP) Requirements in
161 Final Permit Determinations
162
163 (a) Purpose and intent. It is the purpose of Section 122-10 to implement regulations that will
164 assure, consistent with the 10a' Amendment to the U.S. Constitution, state and County regulations,
165 proper record retention, coordination, and notification of FEMA and FWS regarding permit applications
166 filed with or issued by Monroe County, inclusive of FEMA/FWS requirements agreed to by the
167 applicant.
168
169 (b) Lands to which this Section apply. See Section 122-2 (2) and (3)
170 (c) Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on the
171 FEMA SFAMs may be determined by scaling distances. Required interpretations of those maps for
172 precise locations of such boundaries shall be made by the County Planning Director or his/her designee,
173 in consultation with the building official.
174
175 (d) Administration of Development Approval in Species Focus Areas.
176
177 a. SFA Review Required. For parcels or lots shown within the SFAMs in which an
178 application for development permit has been made, if the SFAM indicates the parcel or lot contains only
179 unsuitable habitat for any of the following species: Key Largo Cotton Mouse, Key Largo woodrat, Key
18o tree -cactus, Lower Keys marsh rabbit, Eastern indigo snake, Key deer, Schaus swallowtail butterfly,
181 silver rice rate, and Stock Island tree snail, and the parcel or lot is not listed on the RE list, the Planning
182 Director or his/her designee shall provide for a notation in the development application permit files that
183 indicates:
184 i. The name of the official that made the determination;
185
186 ii. The date of the determination;
187
188 iii. The date of the SFAM and RE list used to make the determination.
189
Page 4 of 7
190 Once the determination has been made that a parcel or lot contains unsuitable habitat, action may
191 be taken on the permit application by Monroe County staff.
192 b. FWS Permit Conditions. For parcels or lots shown within the SFAMs in which an
193 application for a permit for development as defined in Section 122-3 and 59.1, Code of Federal
194 Regulations (CFR) has been made, if the SFAM indicates the parcel or lot contains suitable habitat for
195 any of the following species: Key Largo Cotton Mouse, Key Largo woodrat, Key tree -cactus, Lower
196 Keys marsh rabbit, Eastern indigo snake, Key deer, Schaus swallowtail butterfly, silver rice rat, and/or
197 Stock Island tree snail, and the parcel or lot is listed on the RE list, the Planning Director or his/her
198 designee shall use the SAGS to determine whether a floodplain development permit application requires:
199
200 i. incorporation of FWS conditions into the Monroe County permit; or
201
202 ii. needs technical assistance by the service.
203
204 For a floodplain development permit application that requires the Services' technical assistance,
205 Monroe County shall provide the application to the service weekly. Based on the Services technical
206 assistance, Monroe County shall condition the floodplain development permit to incorporate the Service
207 recommendations to avoid possible impacts on federally -protected endangered species. The County
208 shall maintain an Acceptance Form of the Service recommendations in the permit file.
209
210 iii. If the parcel is within an area previously covered by a Habitat Conservation Plan, and where
211 that Habitat Conservation Plan has expired at the time of development permit application, the County
212 shall apply this Permit Referral Process.
213
214
215
216 iv. Based on the requirements contained in the FWS letter, the County shall require the
217 owner of the property to sign a form acknowledging agreement to the FWS conditions and the County
218 shall maintain the acknowledgement form in the permit file.
219
220 V. The County shall, based on the acknowledgement form from the property owner,
221 incorporate the FWS letter conditions into any final Monroe County development permit.
222
223 vi. If the property owner does not agree to the FWS conditions, the County shall not accept
224 the application for development permit.
225
226 c. Provision for Flood Hazard Reduction and Avoiding impacts on federally listed species
227 Enforcement. All proposed development shall meet the conditions established on the floodplain
228 development permit based on the Service recommendations to avoid possible impacts on federally-
229 protected endangered species. Violation of thisChapter, including any development constructed not in
23o accordance with the FWS conditions derived through use of the SAGS or through technical assistance by
231 FWS, are hereby deemed to be violations of the County Code and may be enforced as follows:
232
233 i. The County may utilize the administrative enforcement procedures set forth in Chapter 8,
234 Monroe County Code of Ordinances;
235
236 ii. The County's Growth Management Director may make a formal complaint to the U.S.
237 FWS Office of Law Enforcement;
Page 5 of 7
238
239 iii. The County may file an action in a court of competent jurisdiction seeking damages as
240 well as injunctive and/or equitable relief;
241
242 iv. The County Floodplain Administrator may notify FEMA that the property is in violation
243 of this ordinance and should be considered for treatment under § 1316 of the National Flood Insurance
244 Act; and/or
245
246 V. Knowing violations of this section may be prosecuted in the same manner as
247 misdemeanors are prosecuted in the name of the State in a court having jurisdiction of misdemeanors by
248 the prosecuting attorney thereof and upon conviction shall be punished by a fine not to exceed $500
249 and/or imprisonment in the county jail not to exceed 60 days. Each day a violation exists shall
250 constitute a separate offense.
251
252 d. Permit issuance for previously tolled Rate of Growth Ordinance (ROGO) allocations or building
253 permits. Building permits and allocations have been tolled under authority of Monroe County
254 Resolutions 420-2005, 166-2006, 185-2007 & 219-2008 and 282-2011 as a result of the injunction
255 against FEMA for the issuance of flood insurance policies under the National Flood Insurance Program
256 in the case of Florida Key Deer et. al.,v. Fugate et. al., 90-10037-CN-Moore. In order for those
257 persons whose allocations or whose building permits were tolled to be eligible for Federal flood
258 insurance and meet their obligations under the Federal Endangered Species Act, the following is
259 required:
260
261
262 i. Owners who do not need coordination with FWS after they are processed through the FEMA
263 and FWS Permit Referral Process have 180 days from the date of the judge's order to lift the
264 injunction, and from the date of a County issued written notice to pick up their building
265 permits, whichever is greater.
266 ii. Owners who do not need coordination with FWS after they are processed through the FEMA
267 and FWS Permit Referral Process and who need to re-desiga their on -site wastewater
268 treatment system and receive a permit from Department of Health {DOH} have 300 days
269 from the date of the judge's order to lift the injunction, and from the date of a County issued
270 written notice, to pick up their building permit, whichever is greater.
271 iii. Flood Plain Development Permit applications processed through the FEMA and FWSPermit
272 Referral Process that result in a "may affect determination" for the proposed development
273 through the application of the Species Assessment Guides which recuire the permittee to
274 consult with FWS shall have 360 days to conclude the required coordination with FWS d
275 pick up the building permit o Monroe County. This timeframe may be extended by the
276 Planning Director if the applicant can affirmatively demonstrate that he has timely and
277 actively sought coordination.
278
279
280
281 Section 3. Severability.
282 If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged
283 by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate, or
284 nullify the remainder of this Ordinance, but the effect thereof shall be confined to the section, paragraph,
Page 6 of 7
285 subdivision, clause, sentence or provision immediately involved in the controversy in which such
286 judgment or decree shall be rendered.
287
288 Section 4. Conflicting Provisions.
289 In the case of direct conflict between any provision of this ordinance and a portion or provision of any
290 appropriate federal, state or county law, rule, code or regulation, the more restrictive shall apply.
291 Section 5. Filing, Transmittal, and Effective Date.
292 This ordinance shall be filed in the Office of the Secretary of State of the State of Florida, and
293 transmitted to the State Land Planning Agency, but shall not become effective until a notice is issued by
294 the State Land Planning Agency or Administrative Commission approving the ordinance pursuant to
295 Chapter 380, Florida Statutes, and after any appeal period has expired.
296 Section 6. Codification
297 The provisions of this ordinance shall be included and incorporated into the Code of Ordinances of the
298 County of Monroe, Florida, as an addition or amendment thereto and shall be appropriately numbered to
299 conform to the uniform numbering system of the Code.
300
301
302
303 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida
304 at a regular meeting held on the )DC ' day of XXXX, 2012.
305
306
307 Mayor David Rice
308 Mayor Pro Tern Kim Wigington
309 Commissioner Heather Carruthers
310 Commissioner George Neugent
311 Commissioner Sylvia Murphy
312
313 BOARD OF COUNTY COMMISSIONERS OF MONROE
314 COUNTY, FLORIDA
315
316 BY
317 Mayor David Rice
318
319 (SEAL)
320 ATTEST: DANNY L. KOLHAGE, CLERK
321
322
323
324 DEPUTY CLERK
Page 7 of 7
�q�:�-w am-91�IN I
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Floodplain Regulations
Staff Report WITH HB 503
MEMORANDUM
MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT
We strive to be caring, professional and fair
DATE:
TO:
THROUGH:
FROM:
May 1, 2012
BOARD OF COUNTY COMNIISSIONERS
ROMAN GASTESI; COUNTY ADMINISTRATOR
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 122-10
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: 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 adding § 122-10 of the Monroe County Code
6 (MCC) in order to revise the regulations pertaining to the review of applications for
7 floodplain development permits to address the April 2010 U.S. Fish & Wildlife Services
8 Biological Opinion and the Reasonable & Prudent Alternatives (RDA's) related to the
9 Federal Emergency Management Agency's (FEMA) administration of the National Flood
10 Insurance Program in Monroe County.
11
12 II RELEVANT PRIOR COUNTY ACTIONS AND BACKGROUND INFORMATION:
13
Page 1 of 9
Floodplain Regulations
Staff Report WITH HB 503
1 In 1997 the Service completed a Biological Opinion (BO) for the effects of the NFIP on
2 Federally protected species in the Florida Keys. The 1997 BO found the NFIP jeopardized
3 nine species in the Keys and then in 2003 the Service re -initiated consultation and amended
4 the 1997 BO and concluded that the effect of the NFIP would result in jeopardy on eight of
5 10 species evaluated in the BO. Then, a second amended complaint in 2003 was filed by the
6 plaintiffs against FEMA and the Service pursuant to the Endangered Species Act and the
7 Administrative Procedures Act. The plaintiffs won a Summary Judgment and on March 29,
8 2005 the United States District Court, Southern District of Florida (Court) issued an Order
9 ruling the Service and FEMA violated the Endangered Species Act and the Administrative
10 Procedures Act.
11
12 On September 9, 2005, the Court granted the plaintiffs' motion for an injunction against
13 FEMA issuing flood insurance on any new residential or commercial developments in
14 suitable habitats of federally listed species in the Keys. The Court also ordered the Service to
15 submit a new BO by August 9, 2006. The Service issued a new BO on August 8, 2006. On
16 April 1, 2008, FEMA and the Service filed an appeal with the United States Court of Appeals
17 for the Eleventh Circuit arguing that section 7(a)(2) of the Act did not apply to FEMA's
18 provision of flood insurance and that FEMA had fully complied with the Court's March 29,
19 2005, ruling. On February 26, 2009, the Court ordered the Service to submit a new BO by
20 March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this
21 deadline. On April 1, 2009, the United States Court of Appeals for the Eleventh Circuit
22 affirmed the judgment of the District Court. On April 30, 2010, the Service published the
23 revised BO for FEMA's administration of the NFIP in Monroe County.
24
25 The BO contains Reasonable and Prudent Alternatives (RDA's) that require Monroe County
26 and other participating communities in the Florida Keys to revise their Flood Damage
27 Prevention Ordinance(s) to reference and use an updated real estate list (referenced in RPA
28 paragraph 1) within 120 days of acceptance of this BO by the Court. Then, on December 3,
29 2010 the Court filed a Settlement Agreement between the Plaintiffs and the Federal
30 Defendants in which the Federal Defendants agreed to notify the Court and the parties when
31 Monroe County and the other `participating communities" in the Florida Keys have: 1)
32 revised their Flood Damage Prevention Ordinance(s); and 2) implemented procedures to
33 reference and use the updated real estate list and Species Focus Area Maps (referenced in
34 reasonable and prudent alternative ("RPA") paragraph 1) in compliance with paragraphs 2, 3,
35 4, and 5 of the RPA.
36
37 On November 12, 2010 the Board of County Commissioners held a public workshop to
38 discuss the RPA's and directed the County Attorney to intervene in Court and directed the
39 County Administrator to task the lobbyists with this issue.
40
41 On February 16, 2011 the BOCC directed the County Attorney to file an appeal in the matter
42 of Florida Key Deer, National Wildlife Federation, et. Al. v. FEMA and USFWS.
43
44 On March 16, 2011, the BOCC authorized the County Attorney to file a motion for a Stay
45 and to obtain the services of Hogan Lovells to assist the County in the appeal process.
46
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On December 2, 2011, FEMA notified Monroe County that if the County decides not to
implement the RDA's then Monroe County will be placed on probation.
On February 16, 2012 the FWS provided proposed revisions to the Species Assessment
Guides. The proposed revisions included clarification 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. 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.
In March, 2012 the Florida Legislature adopted Chapter 2012-XX 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
countyfor issuance of the permit if the applicant fails to obtain requisite approvals or
fulfall 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 countyfrom providing information to an
applicant regarding what other state or federal permits may apply. "
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-XX, Laws of Florida, and adequately protects the County
taxpayers against accepting that additional liability;
III REVIEW
The Growth Management Division, the County Attorney and the County's outside Counsel
have been working closely with FEMA and the USFWS following the BOCC meeting of
March 16, 2011 to reach agreement on the implementation of the RPA's and the language for
the required Ordinances.
FEMA provided a draft of items for adoption to Monroe County on June 15, 2011 and
provided further recommendations via e-mail on October 3, 2011 (Appendix I). These
Ordinance recommendations were developed by FEMA to meet the requirements of the
RPA's and would require the County to make permit determinations based on the Species
Page 3 of 9
Floodplain Regulations
Staff Report WITH HB 503
1 Assessment Guides (SAGS), and in the event the impact limits of Table 18 were exceeded,
2 ultimately deny a building permit. The FWS provided draft SAG's that would require
3 Monroe County to review each floodplain development permit application to determine if the
4 parcel was on the list of RE #s that are within the species focus areas or buffers, and to
5 confirm this by reviewing the Species Focus Area Maps provided by FEMA. If the parcel is
6 on the list, then Monroe County staff evaluates the application in accordance with the SAGs
7 and make the permit determination. In the event that the proposed development results in a
8 "may affect" determination, then the applicant is required to consult directly with the
9 USFWS, otherwise, Monroe County is authorized by the RPA's to issue the building permit.
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On February 16, 2012 the USFWS provided draft revisions to the Species Assessment Guide
(SAG) for the Lower Keys marsh rabbit that would allow the County to pre -determine that
the development of certain parcels within canal subdivisions and substantially developed
subdivisions would "Not Likely Adversely Affect" (NLAA) the lower Keys marsh rabbit
(Appendix II). In addition, the USFWS stated that a similar revision would be made to the
SAG's for the Key Largo cotton mouse, the Key Largo wood rat and the silver rice rat.
These provisions substantially reduce the County's potential exposure for liability for inverse
condemnation or takings claims.
The FWS correspondence (and revised SAG's) also included clarification of the habitat
compensation criteria. In short, the revised SAG's acknowledge that habitat compensation
provided to meet Monroe County Land Development Code requirements (Chapter 118-6 and
118-8) also meets the requirements of the FWS. Further, the revised SAG's state that the
Service considers the compensation as like -for -like replacement of habitat and the loss is not
a deduction from the not -to -exceed habitat acreage losses referenced in the BO (Table 18).
Due to the Florida Legislature adopted Chapter 2012-XX 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.
Therefore, staff recommends the following addition to Section 122 Floodplain Management:
Section 1. The Monroe County Land Development Code shall be amended as follows:
Sec. 122-2. General provisions.
(b) Basis for Establishing Special Flood Hazard maps; Species Focus Area Maps
(SFAMs) and Real Estate (RE) List; and Species Assessment Guides (SAGs).
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Floodplain Regulations
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1 1. Special Flood Hazard Maps. The areas of special flood hazard identified by the Federal
2 Emergency Management Agency (FEMA) in its October 17, 1989 Flood Insurance Study and
3 Wave Height Analysis for Monroe County, Florida, Unincorporated Areas, as amended February
4 18, 2005, with accompanying supporting data, are adopted by reference and declared to be a part
5 of this chapter, and shall be kept on file, available to the public, in the offices of the county
6 Building Department. Letters of Map Amendment, Letters of Map Revision, Letters of Map
7 Revision Based on Fill, and Conditional Letters of Map Revision approved by FEMA are
8 acceptable for implementation of this regulation.
9 2. Species Focus Area Maps (SFAMs) and Real Estate (RE) List. FEMA and FWS have
10 provided the Species Focus Area Maps (SFAMs) mailed to Monroe County and dated April 30,
11 2011, and a listing of real estate numbers of parcels (RE list) emailed to Monroe County and
12 dated November 18, 2011, that are within the SFAMs and that have been identified by FWS.
13 The SFAMs and the RE List that are within the SFAMs identified by the FWS in accordance
14 with the Biological Opinion, dated April 30, 2010, as amended December 14, 2010, are hereby
15 declared to be a part of this ordinance. The SFAMs and RE list are on file at the Monroe County
16 Clerk's office and the Monroe County Growth Management Division Office.
17 3. Species Assessment Guides (SAGS). FEMA and FWS have provided the Species
18 Assessment Guides (SAGs) mailed to Monroe County and dated XX, 2012 are declared to be a
19 part of this ordinance. The SAGs are on file at the Monroe County Clerk's office and the
20 Monroe County Growth Management Division Office.
21 Section 2. The Monroe County Land Development Code is amended by adding Section
22 122-10 as follows:
23
24 Sec. 122-10.Inclusion of United States Federal Emergency Management Agency
25 (FEMA) and United States Fish and Wildlife Service (FWS) Permit Referral Process (PRP)
26 Requirements in Final Permit Determinations
27
28 (a) Purpose and intent. It is the purpose of Section 122-10 to implement regulations
29 that will assure, consistent with the 10 h Amendment to the U.S. Constitution, state and County
30 regulations, proper record retention, coordination, and notification of FEMA and FWS regarding
31 permit applications filed with or issued by Monroe County, inclusive of FEMA/FWS
32 requirements agreed to by the applicant.
33
34 (b) Lands to which this Section apply. See Section 122-2 (2) and (3)
35
36 (c) Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on
37 the FEMA SFAMs may be determined by scaling distances. Required interpretations of those
38 maps for precise locations of such boundaries shall be made by the County Planning Director or
39 his/her designee, in consultation with the building official.
40
41 (d) Administration of Development Approval in Species Focus Areas.
42
43 a. SFA Review Required. For parcels or lots shown within the SFAMs in which an
44 application for development permit has been made, if the SFAM indicates the parcel or lot
45 contains only unsuitable habitat for any of the following species: Key Largo Cotton Mouse, Key
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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:
i. The name of the official that made the determination;
ii. The date of the determination;
iii. The date of the SFAM and RE list used to make the determination.
Once the determination has been made that a parcel or lot contains unsuitable habitat,
action may be taken on the permit application by Monroe County staff.
b. FWS Permit Conditions. For parcels or lots shown within the SFAMs in which
an application for development permit that 1) expands the footprint of a structure; or 2) expands
associated clearing of; or 3) includes placement of fencing into native habitat, has been made, 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:
i. incorporation of FWS SAG conditions into the Monroe County permit and the
County may issue the permit, pursuant to all applicable codes; or
ii. if, according to the SAGs, the proposed development needs technical assistance
by the Service, the County shall issue the permit with a condition that:
I. the applicant seek and obtain technical assistance from the Service; and
2. the permit shall expire after 180 days; and
3. the applicant obtain all applicable state or federal permits or approvals prior to
commencement of development. If the permit expires after 180 days, prior to
the applicant receiving applicable state or federal permits or approvals, the
applicant shall be required to reapply.
iii. 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 state or federal
technical assistance or state or federal permit or other approval to the County. If the
applicant agrees to the Services conditions, in writing, Monroe County may then issue a
NOTICE TO PROCEED with conditions provided by the state or federal agency to avoid
possible impacts on federally -protected endangered species. The County shall maintain
an applicant acceptance form, of the Service recommendations, in the permit file.
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Floodplain Regulations
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1 iv. If the parcel is within an area previously covered by a Habitat Conservation
2 Plan, and where that Habitat Conservation Plan has expired at the time of development
3 permit application, the County shall apply this Permit Referral Process.
4
5 V. If the property owner does not agree to the FWS conditions, the County
6 shall not issue the notice to proceed.
7
8 c. Provision for Flood Hazard Reduction and Avoiding impacts on federally listed species
9 Enforcement. All proposed development shall meet the conditions established on the floodplain
10 development permit based on the Service recommendations to avoid possible impacts on
11 federally -protected endangered species. Violation of this Chapter, including any development
12 constructed not in accordance with the FWS conditions derived through use of the SAGs or
13 through technical assistance by FWS, are hereby deemed to be violations of the County Code
14 and may be enforced as follows:
15
16 i. The County may utilize the administrative enforcement procedures set
17 forth in Chapter 8, Monroe County Code of Ordinances;
18
19 ii. The County's Growth Management Director may make a formal
20 complaint to the U.S. FWS Office of Law Enforcement;
21
22 iii. The County may file an action in a court of competent jurisdiction seeking
23 damages as well as injunctive and/or equitable relief;
24
25 iv. The County Floodplain Administrator may notify FEMA that the property
26 is in violation of this ordinance and should be considered for treatment under § 1316 of
27 the National Flood Insurance Act; and/or
28
29 V. Knowing violations of this section may be prosecuted in the same manner
30 as misdemeanors are prosecuted in the name of the State in a court having jurisdiction of
31 misdemeanors by the prosecuting attorney thereof and upon conviction shall be punished
32 by a fine not to exceed $500 and/or imprisonment in the county jail not to exceed 60
33 days. Each day a violation exists shall constitute a separate offense.
34
35 d. Permit issuance for previously tolled Rate of Growth Ordinance (ROGO) allocations or
36 building permits. Building permits and allocations have been tolled under authority of Monroe
37 County Resolutions 420-2005, 166-2006, 185-2007 & 219-2008 and 282-2011 as a result of the
38 injunction against FEMA for the issuance of flood insurance policies under the National Flood
39 Insurance Program in the case of Florida Key Deer et. al.,v. Fugate et. al., 90-10037-CIV-
40 Moore. For those allocations or building permits that were tolled:
41
42 i. Owners who do not need coordination with FWS after they are processed through the
43 FEMA and FWS Permit Referral Process have 180 days from the date of the judge's
44 order to lift the injunction, and from the date of a County issued written notice, to
45 pick up their building permits, whichever is greater.
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1 ii. Owners who do not need coordination with FWS after they are processed through the
2 FEMA and FWS Permit Referral Process and who need to re -design their on -site
3 wastewater treatment system and receive a permit from Department of Health (DOH)
4 have 300 days from the date of the judge's order to lift the injunction, and from the
5 date of a County issued written notice, to pick up their building permit, whichever is
6 greater-
7 iii. Flood Plain Development Permit applications processed through the FEMA and FWS
8 Permit Referral Process that result in a "may affect determination" for the proposed
9 development through the application of the Species Assessment Guides which require
10 the nermittee to consult with FWS shall have 360 days to conclude the required
11 coordination with FWS and pick up the building permit from Monroe County. This
12 timeframe may be extended by the Planning Director if the applicant can
13 affirmatively demonstrate that he has timely and actively sought coordination.
14
15 Section 3. Severability.
16 If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall
17 be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not
18 affect, impair, invalidate, or nullify the remainder of this Ordinance, but the effect thereof
19 shall be confined to the section, paragraph, subdivision, clause, sentence or provision
20 immediately involved in the controversy in which such judgment or decree shall be rendered.
21
22
23 Section 4. Conflicting Provisions.
24 In the case of direct conflict between any provision of this ordinance and a portion or
25 provision of any appropriate federal, state or county law, rule, code or regulation, the more
26 restrictive shall apply.
27 Section 5. Filing, Transmittal,and Effective Date.
28 This ordinance shall be filed in the Office of the Secretary of State of the State of Florida,
29 and transmitted to the State Land Planning Agency, but shall not become effective until a
30 notice is issued by the State Land Planning Agency or Administrative Commission approving
31 the ordinance pursuant to Chapter 380, Florida Statutes, and after any appeal period has
32 expired.
33 Section 6. Codification
34 The provisions of this ordinance shall be included and incorporated into the Code of
35 Ordinances of the County of Monroe, Florida, as an addition or amendment thereto and shall
36 be appropriately numbered to conform to the uniform numbering system of the Code.
37
38 IV RECOMMENDATION
39
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1 Staff has found that the proposed text amendment would be consistent with the provisions of
2 §102-158(d)(5)(b): 1. Changed projections (e.g., regarding public service needs) from those
3 on which the text or boundary was based; 2. Changed assumptions (e.g., regarding
4 demographic trends); 3. Data errors, including errors in mapping, vegetative types and
5 natural features described in volume I of the plan; 4. New issues; 5. Recognition of a need for
6 additional detail or comprehensiveness; or 6. Data updates.
7
8 Specifically, staff has found that the proposed text amendments are necessary due to new
9 issues associated with FEMAs administration of the NFIP.
10
11 Staff recommends that the Board of County Commissioners amend the Monroe County Code
12 as stated in the text of this staff report.
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2 ORDINANCE NO. -2012
3
4 AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
5 COMMISSIONERS AMENDING CHAPTER 122 FLOODPLAIN
6 REGULATIONS, CREATING SECTION 122-10 PROVIDING FOR
7 INCLUSION OF UNITED STATES FEDERAL EMERGENCY
8 MANAGEMENT AGENCY (FEMA) AND UNITED STATES FISH AND
9 WILDLIFE SERVICE (FWS) REQUIREMENTS IN PERMIT REFERRAL
10 PROCESS IMPLEMENTATION AND DETERMINATIONS; PROVIDING
11 FOR SEVERABILTTY; PROVIDING FOR REPEAL OF CONFLICTING
12 PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE STATE LAND
13 PLANNING AGENCY AND THE SECRETARY OF STATE; PROVIDING
14 FOR CODIFICATION; PROVIDING FOR AN EFFECTIVE DATE.
15
16
17 WITH ADDRESSING STATE BILL
18
19 WHEREAS, the National Flood Insurance Program (NFIP) is a Federal program enabling
20 property owners in participating communities to purchase flood insurance in exchange for the
21 community's adoption of floodplain management regulations to reduce future flood damages; and
22
23 WHEREAS, in 1990 the National Wildlife Federation, Florida Wildlife Federation, and the
24 Defenders of Wildlife filed suit against the Federal Emergency Management Agency (FEMA) claiming
25 FEMA was not consulting with the U.S. Fish and Wildlife Service (Service) as required by the
26 Endangered Species Act in their administration of the National Flood Insurance Program (NFIP) in
27 Monroe County, Florida; and
28
29 WHEREAS, in 1997 the Service completed a Biological Opinion (BO) for the effects of the
30 NFIP on Federally protected species in the Florida Keys; and
31
32 WHEREAS, the 1997 BO found the NFIP jeopardized nine species in the Keys; and
33
34 WHEREAS, in 2003 the Service re -initiated consultation and amended the 1997 BO and
35 concluded that the effect of the NFIP would result in jeopardy on eight of 10 species evaluated in the
36 BO; and
37
38 WHEREAS, in a second amended complaint in 2003 the plaintiffs filed suit against FEMA and
39 the Service pursuant to the Endangered Species Act and the Administrative Procedures Act; and
40
41 WHEREAS, on March 29, 2005 the United States District Court, Southern District of Florida
42 (District Court) granted summary judgment in favor of the Plaintiffs which found that the Service and
43 FEMA violated the Endangered Species Act and the Administrative Procedures Act; and
44
45 WHEREAS, on September 9, 2005, the District Court entered an order enjoining FEMA from
46 issuing flood insurance under the NFIP on any new residential or commercial developments in suitable
47 habitats of federally listed species in the Keys; and
48
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49 WHEREAS, the District Court also ordered the Service to submit a new BO by August 9, 2006.
50 The Service issued a new BO on August 8, 2006; and
51
52 WHEREAS, on April 1, 2008, the United States Court of Appeals for the Eleventh Circuit
53 affirmed the District Court's rulings of March 29, 2005 and September 9, 2005;; and
54
55 WHEREAS, On February 26, 2009, the District Court ordered the Service to submit a new BO
56 by March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this deadline; and
57
58 WHEREAS, on April 30, 2010, the Service published the revised BO for FEMA's
59 administration of the NFIP in Monroe County; and
60
61 WHEREAS, the BO contains "Reasonable and Prudent Alternatives" (RPA's) that require
62 Monroe County and other participating communities in the Florida Keys to revise their Flood Damage
63 Prevention Ordinance(s) to reference and use the updated real estate list (referenced in RPA paragraph
64 1) within 120 days of acceptance of this BO by the Court, and;
65
66 WHEREAS, on January 11, 2011, the District Court approved a Settlement Agreement between
67 the Plaintiffs and the Federal Defendants in which the Federal Defendants agreed to notify the Court
68 and the parties when Monroe County and the other "participating communities" in the Florida Keys
69 have: 1) revised their Flood Damage Prevention Ordinance(s); and 2) implemented procedures to
70 reference and use the updated real estate list and Species Focus Area Maps (referenced in reasonable and
71 prudent alternative ("RPA") paragraph 1) in compliance with paragraphs 2, 3, 4, and 5 of the RPA; and
72
73 WHEREAS, on December 2, 2011, FEMA notified Monroe County that if the County did not
74 implement the RPA's by January 11, 2012, then Monroe County would have been placed on probation
75 on May 10, 2012.ln response to the County's requested time extension, FEMA requested and the Court
76 granted an extension to June 30, 2012 for the ordinance revisions and permit referral process
77 implementation; and
78
79 WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
8o advised the Board that adoption of the RPA's; ordinance language; and originally drafted Species
81 Assessment Guides (SAGS) suggested by the Federal agencies would have resulted in increased
82 exposure to the County for liability for inverse condemnation or takings claims; and
83
84 WHEREAS, FEMA and the Service revised the SAGs to include provisions that substantially
85 reduce the County's potential exposure for liability for inverse condemnation or takings claims; and
86
87 WHEREAS, On March 19, 2012, FEMA provided comments (attached as Exhibit XX) on the
s8 County's DRAFT Ordinance, transmitted by the County to FEMA; and
89
90 WHEREAS, because the Florida Constitution prohibits the County from incorporating future
91 federal statutes and regulations into its existing ordinances, the County is unable to adopt the
92 "subsequent revisions" to the Species Focus Area Maps (SFAMs) or Species Assessment Guides
93 (SAGs) into this ordinance as desired by FEMA, until the subsequent revisions are published and
94 adopted by the then sitting Board of County Commissioners pursuant to the process set forth in Florida
95 law; see, e.g., Abbott Laboratories v. Mylan Pharmaceuticals, 15 So.3d 642 (Fla. I" DCA 2009); and
96
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97 WHEREAS, the County has revised said ordinance; and
98
99 WHEREAS, the Florida Legislature adopted Chapter 2012-XX Laws of Florida, effective July
too 1, 2012, which states:
101
102 "For any development permit application filed with the county after July 1, 2012, a county may
103 not require as a condition of processing or issuing a development permit that an applicant
104 obtain a permit or approval from any state or federal agency unless the agency has issued a final
105 agency action that denies the federal or state permit before the county action on the local
106 development permit. Issuance of a development permit by a county does not in any way create
107 any rights on the part of the applicant to obtain a permit from a state or federal agency and does
108 not create any liability on the part of the county for issuance of the permit if the applicant fails to
109 obtain requisite approvals or fuoll the obligations imposed by a state or federal agency or
110 undertakes actions that result in a violation of state or federal law. A county may attach such a
III disclaimer to the issuance of a development permit and may include a permit condition that all
112 other applicable state or federal permits be obtained before commencement of the development.
113 This section does not prohibit a county from providing information to an applicant regarding
114 what other state or federal permits may apply. "
115
116 WHEREAS, the State definition of development permit in Chapter 163.316 (16) Florida Statutes
117 is:,
i 18 "Development permitrebuilding permit,fermit, subdivision approval,
119 certification, special exception, variance,any official action of local government having
1 effect ofpennitting the developmentland.
121 WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
122 proposed an ordinance with alternative language to meet the RPAS, which is consistent with Federal
123 law, addresses Chapter 2012-XX, Laws of Florida, and adequately protects the County taxpayers against
124 accepting that additional liability;
125
126 WHEREAS, the September 9, 2005 District Court injunction will only be lifted by the Court if
127 the FWS Biological Opinion and Reasonable and Prudent Alternatives, which requires property owners
128 within the species focus areas and buffer areas to go through the Permit Referral Process, are
129 implemented by each of the participating communities;
130
131 WHEREAS, any property owner has an obligation to comply with the Federal Endangered
132 Species Act;
133
134 WHEREAS, the County has an obligation to comply with the Federal Endangered Species Act;
135
136 WHEREAS, subject to resolutions 420-2005; 166-2006; 185-2007; 219-2008 and 282-2011,
137 property owners are able to "toll" their building permits and ROGO allocations because they were not
138 eligible for flood insurance as a result of the September 9, 2005 District Court injunction;
139
140 WHEREAS, the only way the Court will terminate the 2005 District Court injunction is if
141 participating communities comply with the BO RPA's;
142
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143 WHEREAS, this Ordinance is being adopted to provide owners with tolled building permits
144 and/or ROGO allocations a way to develop in a manner consistent with the Endangered Species Act and
145 that will be eligible for national flood insurance;
146
147 WHEREAS, the Monroe County Planning Commission during a regular meeting held on April
148 xx, 2012, reviewed, discussed and approved the Sr. Director of Planning and Environmental Resources'
149 recommendation to the Planning Commission for the revisions to Chapter 122 of the Monroe County
15o Land Development Code;
151
152 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
153 COMMISSIONERS OF MONROE COUNTY, FLORIDA:
154
155
156 Section 1. The Monroe County Land Development Code shall be amended as follows:
157
158 Sec. 122-2. General provisions.
159
160 (b) Basis for Establishing Special Flood Hazard maps; Species Focus Area Maps (SFAMs) and
161 Real Estate (RE) List; and Species Assessment Guides (SAGS).
162 1. Special Flood Hazard Maps. The areas of special flood hazard identified by the Federal
163 Emergency Management Agency (FEMA) in its October 17, 1989 Flood Insurance Study and Wave
164 Height Analysis for Monroe County, Florida, Unincorporated Areas, as amended February 18, 2005,
165 with the most current official maps approved by FEMA, with accompanying supporting data, and any
166 revisions thereof, are adopted by reference and declared to be a part of this chapter, and shall be kept on
167 file, available to the public, in the offices of the county Building Department. Letters of Map
168 Amendment, Letters of Map Revision, Letters of Map Revision Based on Fill, and Conditional Letters
169 of Map Revision approved by FEMA are acceptable for implementation of this regulation.
170 2. Species Focus Area Maps (SFAMs) and Real Estate (RE) List. FEMA and FWS have
171 provided the Species Focus Area Maps (SFAMs) mailed to Monroe County and dated April 30, 2011,
172 and a listing of real estate numbers of parcels (RE list) emailed to Monroe County and dated November
173 18, 2011, that are within the SFAMs and that have been identified by FWS. The SFAMs and the RE
174 List that are within the SFAMs identified by the FWS in accordance with the Biological Opinion, dated
175 April 30, 2010, as amended December 14, 2010, are hereby declared to be a part of this ordinance. The
176 SFAMs and RE list are on file at the Monroe County Clerk's office and the Monroe County Growth
177 Management Division Office.
178 3. Species Assessment Guides (SAGS). FEMA and FWS have provided the Species Assessment
179 Guides (SAGS) mailed to Monroe County and dated XX, 2012 are declared to be a part of this
180 ordinance. The SAGs are on file at the Monroe County Clerk's office and the Monroe County Growth
181 Management Division Office.
182 Section 2. The Monroe County Land Development Code is amended by adding Section 122-10
183 as follows:
184
185 Sec. 122-10.Inclusion of United States Federal Emergency Management Agency (FEMA) and
186 United States Fish and Wildlife Service (FWS) Permit Referral Process (PRP) Requirements in Final
187 Permit Determinations
Page 4 of 3
188
189 (a) Purpose and intent. It is the purpose of Section 122-10 to implement regulations that will
190 assure, consistent with the 10`h Amendment to the U.S. Constitution, state and County regulations,
191 proper record retention, coordination, and notification of FEMA and FWS regarding permit applications
192 filed with or issued by Monroe County, inclusive of FEMA/FWS requirements agreed to by the
193 applicant.
194
195 (b) Lands to which this Section apply. See Section 122-2 (2) and (3)
196 (c) Rules for interpreting SFAMs. The boundaries of the flood hazard areas shown on the
197 FEMA SFAMs may be determined by scaling distances. Required interpretations of those maps for
198 precise locations of such boundaries shall be made by the County Planning Director or his/her designee,
199 in consultation with the building official.
200
201 (d) Administration of Development Approval in Species Focus Areas.
202
203 a. SFA Review Required. For parcels or lots shown within the SFAMs in which an
204 application for development permit has been made, if the SFAM indicates the parcel or lot contains only
205 unsuitable habitat for any of the following species: Key Largo Cotton Mouse, Key Largo woodrat, Key
206 tree -cactus, Lower Keys marsh rabbit, Eastern indigo snake, Key deer, Schaus swallowtail butterfly,
207 silver rice rate, and Stock Island tree snail, and the parcel or lot is not listed on the RE list, the Planning
208 Director or his/her designee shall provide for a notation in the development application permit files that
209 indicates:
210 i. The name of the official that made the determination;
211
212 ii. The date of the determination;
213
214 iii. The date of the SFAM and RE list used to make the determination.
215
216 Once the determination has been made that a parcel or lot contains unsuitable habitat, action may
217 be taken on the permit application by Monroe County staff.
218 b. FWS Permit Conditions. For parcels or lots shown within the SFAMs in which an
219 application for a permit for development as defined in Section 122-3 and 59.1 Code of Federal
220 Regulations (CFR) has been made, if the SFAM indicates the parcel or lot contains suitable habitat for
221 any of the following species: Key Largo Cotton Mouse, Key Largo wood rat, Key tree -cactus, Lower
222 Keys marsh rabbit, Eastern indigo snake, Key deer, Schaus swallowtail butterfly, silver rice rat, and/or
223 Stock Island tree snail, and the parcel or lot is listed on the RE list, the Planning Director or his/her
224 designee shall use the SAGS to determine whether a floodplain development permit application requires:
225
226 i. incorporation of FWS SAG conditions into the Monroe County permit and the County may
227 issue the permit, pursuant to all applicable codes; or
228
229 ii. if, according to the SAGS, the proposed development needs technical assistance by the
230 Service, the County shall issue the permit with a condition that:
231 1. the applicant seek and obtain technical assistance from the Service; and
232 2. the permit shall expire after 180 days; and
233 3. the applicant obtain all applicable state or federal permits or approvals prior to
234 commencement of development. If the permit expires after 180 days, prior to the
Page 5 of 8
235 applicant receiving applicable state or federal permits or approvals, the applicant shall
236 be required to reapply.
237 4. For purposes of this Chapter, Commencement of Development shall be the initiation
238 of any activity meeting the definition of development as contained in Chapter 101-1
239 of the Land Development Code that result in the deposition of fill material, new
240 construction of a structure or any increase of footprint of an existing structure or the
241 removal of vegetation from a parcel of land.
242
243
244 iii. For a floodplain development permit application that requires the Services' technical
245 assistance, Monroe County shall provide the application to the Service weekly. Based on the Services
246 technical assistance, the applicant shall submit the state or federal technical assistance or state or federal
247 permit or other approval to the County. If the applicant agrees to the Services conditions, in writing,
248 Monroe County may then issue a NOTICE TO PROCEED with conditions provided by the state or
249 federal agency to avoid possible impacts on federally -protected endangered species. For purposes of
250 this Chapter the Notice to Proceed shall be written authorization from the Monroe County Growth
251 Management Division to the permittee that the permitted development activities may begin. The County
252 shall maintain an applicant acceptance form, of the Service recommendations, in the permit file.
253
254 iv. If the parcel is within an area previously covered by a Habitat Conservation Plan, and where
255 that Habitat Conservation Plan has expired at the time of development permit application, the County
256 shall apply this Permit Referral Process.
257
258
259
260
261
262
263 V. If the property owner does not agree to the FWS conditions, the County shall not
264 issue the notice to proceed.
265
266 c. Provision for Flood Hazard Reduction and Avoiding impacts on federally listed species
267 Enforcement. All proposed development shall meet the conditions established on the floodplain
268 development permit based on the Service recommendations to avoid possible impacts on federally-
269 protected endangered species. Violation of this Chapter, including any development constructed not in
27o accordance with the FWS conditions derived through use of the SAGS or through technical assistance by
271 FWS, are hereby deemed to be violations of the County Code and may be enforced as follows:
272
273 i. The County may utilize the administrative enforcement procedures set forth in
274 Chapter 8, Monroe County Code of Ordinances;
275
276 ii. The County's Growth Management Director may make a formal complaint to the
277 U.S. FWS Office of Law Enforcement;
278
279 iii. The County may file an action in a court of competent jurisdiction seeking
280 damages as well as injunctive and/or equitable relief;
281
Page 6 of 8
282 iv. The County Floodplain Administrator may notify FEMA that the property is in
283 violation of this ordinance and should be considered for treatment under § 1316 of the National
284 Flood Insurance Act; and/or
285
286 V. Knowing violations of this section may be prosecuted in the same manner as
287 misdemeanors are prosecuted in the name of the State in a court having jurisdiction of
288 misdemeanors by the prosecuting attorney thereof and upon conviction shall be punished by a
289 fine not to exceed $500 and/or imprisonment in the county jail not to exceed 60 days. Each day
290 a violation exists shall constitute a separate offense.
291
292 d. Permit issuance for previously tolled Rate of Growth Ordinance (ROGO) allocations or building
293 permits. Building permits and allocations have been tolled under authority of Monroe County
294 Resolutions 420-2005, 166-2006, 185-2007 & 219-2008 and 282-201.1 as a result of the injunction
295 against FEMA for the issuance of flood insurance policies under the National Flood Insurance Program
296 in the case of Florida Key Deer et. al.,v. Fugate et. al., 90-10037-CIV-Moore. In order for those
297 persons whose allocations or whose building permits were tolled to be eligible for Federal flood
298 insurance and meet their obligations under the Federal Endangered Species Act, the following is
299 required:
300
301
302 i. Owners who do not need coordination. with FWS after they are processed through the FEMA
303 and FWS Permit Referral Process have 180 days from the date of the judge's order to lift the
304 injunction, and from the date of a County issued written noticeto pick up their building
305 permits, whichever is greater.
306 ii. Owners who do not need coordination with FWS after they are processed through the FEMA
307 and FWS Permit Referral Process and who need to re -design their on -site wastewater
308 treatment system and receive a permit from Department of Health (DOH) have 300 days
309 from the date of the judge's order to lift the injunction, and from the date of a County issued
310 written notice, to pick up their building permit, whichever is greater.
311 iii. Flood Plain Development Permit applications processed through the FEMA and FWS Permit
312 Referral Process that result in a ` may affect determination!' for the proposed development
313 through the application of the Species Assessment Guides which require the permittee to
314 consult with FWS shall have 360 days to conclude the required coordination with FWS and
315 pick up the building permit from 0 oe Co ty . This timeframe may be extended by the
316 Planning Director if the applicant can affirmatively demonstrate that lie has timely and
317 actively sought coordination.
318
319 Section 3. Severability.
320 If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be
321 adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair,
322 invalidate, or nullify the remainder of this Ordinance, but the effect thereof shall be confined to the
323 section, paragraph, subdivision, clause, sentence or provision immediately involved in the
324 controversy in which such judgment or decree shall be rendered.
325 Section 4. Conflicting Provisions.
326 In the case of direct conflict between any provision of this ordinance and a portion or provision of
327 any appropriate federal, state or county law, rule, code or regulation, the more restrictive shall apply.
Page 7 of 8
328 Section 5. Filing, Transmittal, and Effective Date.
329 This ordinance shall be filed in the Office of the Secretary of State of the State of Florida, and
330 transmitted to the State Land Planning Agency, but shall not become effective until a notice is issued
331 by the State Land Planning Agency or Administrative Commission approving the ordinance
332 pursuant to Chapter 380, Florida Statutes, and after any appeal period has expired.
333 Section 6. Codification
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
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 )0& day of X XX, 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
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
DEPUTY CLERK
Mayor David Rice
Page 8 of 8
A J=
United States Department of the Interi
FISH AND WILDLIFE SERVICE
,, . Ecological '_
1339
"' Street
Vero Beach. Florida 32960
February 16, 2012
Christine Hurley
Director, Division of Growth Management
Monroe County Government
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
Dear Ms. Hurley:
Thank you for meeting with us on February 1, 2012, to discuss implementation of the
Reasonable and Prudent Alternatives referenced in the U.S. Fish and Wildlife Service's (Service)
December 2010 Biological Opinion (BiOp) on the potential effects of the Federal Emergency
Management Agency's (FEMA) implementation of the National Flood Insurance Program
(NF1P) on federally listed species in Monroe County, Florida. We are also in receipt of your
email dated February 14, 2012, which summarized the items discussed in the February 1, 2012,
meeting and highlighted many of Monroe County's (County) concerns. The Service is
committed to working with you to resolve these issues.
The BiOp and associated January 11, 2011, Settlement Agreement ended a 20-year lawsuit Fled
against FEMA and the Service by the National Wildlife Federation and others. In accordance
with the terms of the Settlement Agreement and BiOp, building permit applications for new
construction in Monroe County are to be reviewed by participating communities using Species
Assessment Guides (SAGs) and Species Focus Area Maps (SFAs) produced by the Service.
These tools are designed to provide a determination for permit applications, streamline the
permit review process and eliminate permit delays, while simultaneously minimizing or avoiding
impacts to listed species. Using the guidelines in the SAGs, most permit applications will
require no further review by the Service; the remaining ones will be forwarded to the Service for
further review.
The SAGs provide a mechanism whereby the participating community can evaluate, using our
determinations, whether incidental take will occur as a result of a proposed project given the
actual site conditions and proposed conservation measures. We anticipate that listed species
issues can be addressed through the determinations in the SAGs in the vast majority of
applications. For projects that we have determined will have "No Effect" or are "Not Likely to
Adversely Affect (NLAA)" in the SAGs, no incidental take will occur. All other projects that
"may affect" listed species, as determined through SAGs, should be forwarded to the Service and
FEMA for further review. FEMA and the Service will determine if additional conservation
measures above and beyond the communities' existing conservation measures should be
Christine Hurley Page 2
recommended to minimize or avoid incidental take or if the incidental take is authorized in the
BiOp. If the Service and FEMA determine that incidental take would occur, it will be subtracted
from the authorized limit. In any case, habitat loss due to incidental take is limited to the size of
actual habitat cleared on the property.
Confusion has been expressed about the incidental take anticipated and authorized in the BiOp
and what would happen if the authorized take was exceeded. Incidental take authorized through
the BiOp was generally expressed as loss of potential suitable habitat acres, with two exceptions
discussed below. The acreage was calculated based on the number of building permits issued in
Monroe County and average lot size in the Upper, Middle, and Lower Keys. In our analysis, we
assumed that all construction allocated through the Rate of Growth Ordinance (ROGO) would
occur in habitat suitable for listed species and that all of the habitat would be removed.
Therefore, the amount of incidental take calculated represents a worst -case scenario. Also, upon
further review, the Service determined that, in many cases, take is not likely to occur due to the
specifics of either the parcel or the project. These cases are outlined in the SAGs. Only a small
subset of the projects evaluated using the SAGs are expected to result in incidental take and,
therefore, count towards the take limit.
Two exceptions to estimating potential take of listed species in terms of acreage exist: incidental
take due to increased traffic for the Key deer and incidental take due to an increase in cat
predation on the Key Largo woodrat, Key Largo cotton mouse, silver rice rat, and lower Keys
marsh rabbit. The increase in cat predation is based on the projected ROGO allotments for new
residences over the 13-year period and is expressed in number of new residences on parcels that
can be developed. If the limit of authorized habitat loss or residences with cats is being
approached in a community, the Service and FEMA are required to reinitiate consultation on the
issuance of flood insurance and potentially issue a new biological opinion. Reinitiation of
consultation would most likely occur due to either a substantial increase in ROGO permits in the
community, expiration of the BiOp, or new information regarding the potential effects of the
NFIP on listed species.
We also understand the participating communities' concerns that certain properties may have
been misclassified in the SFAMs. The SFAMs represent the species' baselines in the BiOp.
Therefore, until the RPAs are adopted and the injunction has been lifted, the baseline SFAMs
must remain. While we used the best available data to conduct our analysis in the time frame
available, we realized that misclassification would occur due to the habitat classification groups,
lack of available ground truthing and mapping and scale anomalies. The Service constructed the
SAGS to address these inconsistencies until more reliable information was available. For
example, if a parcel was improperly mapped as habitat and, upon closer inspection is not, the
SAGS will provide a determination of NLAA and the permit can be issued with no further
Service coordination. As referenced in the BiOp, FEMA and the Service will update the maps as
needed. We are committed to working with the communities to begin this review and update
process as soon as the RPAs have been adopted and the injunction has been lifted.
Christine Hurley
Page 3
In the interim, we have evaluated the concerns expressed during the February 1, 2012, meeting
and in your email. Firstly, we have determined we are able to revise the SAGS. We are
providing two draft revised SAGs with this letter as examples of our proposed revisions to
address your concerns. These can be carried forward to other species SAGs, where applicable,
once the language is finalized. The other concerns outlined in your email (in italics) were:
a. The land designated "undeveloped land" on the base maps FWS used to make these
determinations is problematic and should be further evaluated for the inclusion in the
Focus areas or buffer areas
The reason that the Service included the "undeveloped land" mapping unit in certain SFAMs is
due to the inclusion of tracts of native habitat within the mapped unit. For those species where
this map unit is problematic (Key Largo woodrat, Key Largo cotton mouse, eastern indigo snake,
Schaus swallowtail butterfly, and Key deer), the SAGs typically provide a couplet under which
parcels mapped as "undeveloped land" are predetermined to be NLAA provided appropriate
materials are given to an applicant (e.g., an eastern indigo snake brochure). However, parcels
within the buffer area are assessed not for their existing habitat, but for the potential for a new
residence to result in increased predation effects from free -roaming cats (see response under c,
below). Therefore, "undeveloped land" parcels cannot be excluded from the buffer based solely
on their habitat designation.
b. Under the SAGs, acceptable mitigation for habitat removed from the focus area includes
the type of mitigation Monroe County requires in the current land development code.
The SAGs are unclear on whether those funds dedicated to the Countyfor habitat
mitigation can be used for restoration, as well as acquisition.
Please see the revised text under "Habitat Compensation" in the attached SAGs.
c. Under the SAGs, for focus areas, canals that cut off connectivity are used to
predetermine whether the habitat is subtracted from Table 18 (impact acres), However,
the SAGs do not take into account canals cutting off buffer area from the habitat. if you
can predetermine that certain RE#s are cut of'from connectivity to habitat within focus
areas and buffer areas via the SAGs, that could alleviate the RE#s that have to be
evaluated administratively [see (d) below].
In our BiGp, we outlined a linear buffer of 500 meters (1,641 feet) as the distance domestic cats
will travel from their homes. This buffer was mapped for each of the four species affected by
cats and any new residences within this buffer distance were considered to have an indirect
adverse effect to the listed species from cat predation. However, the December 2011 SAGs did
not address the ability of free -roaming cats to overcome barriers (e.g., canals) when navigating to
potentially suitable habitat for the four species that have predation buffers.
Christine Hurley Page 4
We reviewed this question and are proposing a new couplet in the affected SAGs. Please see
Couplet G in the attached Lower Keys marsh rabbit SAG. Proposed Couplet G provides a
NLAA determination with the provision of a cat brochure to the applicant for those parcels that
are separated from contiguous habitat in the species focus area by a waterbody or major
highway. This has been an exclusion criteria accepted by both the Service and the Plaintiffs for
removal of parcels from the Court's injunction list, as physical barriers to cats would prevent
them from reaching suitable habitat to prey on listed species. We believe that a new residence on
this type of parcel would not contribute to increased cat predation on listed species and,
therefore, would not be subtracted from the allotment of parcels exempted in the BiOp.
d As outlined to FEMA on June 20, 2011: Tier III properties within the County are those
the county has purposefully adopted to direct growth TOWARDS To that end, FWS has
designated... 7, 537 parcels (in the species focus areas or buffer areas) that cause an
extreme administrative burden to the County, when, in the County Biologist opinion, most
of them should not be included in the buffer areas.
Noted: Upon closer review, G1S shows that many parcels contain both potential suitable habitat
and buffer area due to mapping inclusions. We are proposing a revision on the attached Lower
Keys Marsh Rabbit guide to ensure that a parcel (or a proposed residence on a parcel for species
affected by cats) is not counted twice (see Couplet A).
e. Relative to the issue identified in (c) and (d) above: Can FWS amend the SAGS to
predetermine whether the focus area parcels and the buffer area parcels can be
eliminated via the SAGs. 'Especially those that are cut off by canalsfrom connectivity to
the actual habitat in the focus areas?
Yes, please see our response in "c" above. Based on the criteria in Couple G, the, potential exists
for a list of excluded parcels to be developed. During future map review, opportunities may also
exist to further assess parcels that contain isolated native habitat, parcels with only fringe habitat,
and similar habitat issues. Additionally, we are proposing a revised couplet that addresses the
level of development and presence of scarified lots surrounding a mapped native habitat unit
(isolated parcels). Please see Couplet C in the attached eastern indigo snake SAG is an example.
For the eastern indigo snake, we not only revised this couplet, but moved it up so that properties
meeting this criteria are excluded early in the evaluation process.
f. What is the small mammal protocol that FWS will require in conjunction with the SAFs?
Your existing protocol takes 2 years of trapping.
The SAGs that note the need for the small mammal survey are specific to the South Key Largo
woodrat and cotton mouse focus area, the silver rice rat focus area, and the lower Keys marsh
rabbit focus area The intent of these surveys is to assess the likelihood of the presence of the
species of concern. A S-consective night small mammal trapping protocol is available that is
applicable for this couplet for the Key Largo woodrat and cotton mouse. The marsh rabbit
Christine Hurley
Page 5
survey is a meandering transit survey to visually observe the presence of rabbit fecal pellets.
Both survey protocols will be available on the Service's web site.
g. FWS has indicated they used ROGO allocations to develop the amount of habitat impact
permitted. As discussed ROGO allocations could change, especially by sub -area, based
on hurricane evacuation modeling. This could be problematic for certain areas.
The BiOp notes this possibility and RPA 4(c) provide specific guidance. In our assessment of
potential adverse effects to listed species, we provided not -to -exceed acreages of habitat that may
be developed and not result in jeopardy to affected species or exceed exempted take of suitable
habitat. Changes in the ROGO allotments do not affect the not -to -exceed acreages, but could
reduce the projected 13-year duration of BiOp if a sufficient number of permits are issued that
result in take of listed species habitat. If it becomes apparent that the amount of take authorized
in the BiOp is about to be met, reinitiation of formal consultation would be needed. A similar
reinitiation sequence could occur with the permitting of new residences (indirect effects from cat
predation) for development in both the focus areas and the companion buffer lands for those
species affected by cat predation. The SAGs are designed to assess and track these parameters
and continued coordination between the Service, FEMA, and affected communities to monitor
these parameters is paramount. Further, as discussed earlier, through use of our determinations
in the SAGs, many of the proposed projects will likely not count against the not -to -exceed
acreages or residential thresholds for cats.
h. Mike Roberts provided a table indicating the number of parcels within various tier
designations (2nd attachment) that do not match what FWS has related to each species
and the total number ofpermits that could be issued
In the referenced table, Mr. Roberts noted differences in the number of parcels that may be
developed in various Tier designations and that these values do not match the Service's number
of parcels and the total number of permits that could be issued. The BiOp provided the detailed
breakdown of how the Service generated the number of parcels and the number of permits that
could be issued. As referenced above, we are aware that parcel misclassification would occur
and the SAGs are constructed to address these inconsistencies until we are able to review and
revise our maps with new data. The differences noted in the number of permits that can be
issued in a particular Tier designation is also subject to parcel misclassifications, although the
maximum amount referenced in the BiOp of permits is based on the projected ROGO allotments
over the 13-year review. As previously discussed, if the ROGO allotments are changed, RPA 4
(c) provides guidance on assessing the changes.
In summary, the Service believes the new review process outlined in the 2010 BiOp streamlines
and simplifies the review process that was in place in the Keys for over 10 years, while
strengthening conservation measures to minimize and avoid impacts to federally listed species.
We have enclosed two draft revised SAGs. Please review and provide comments on them; all
other applicable SAGs will be similarly revised once we have agreed upon final language. We
Christine Hurley
EM
We look forward to working with the communities to resolve issues and conserve the unique
environment of the Florida Keys.
Sincerely yours,
Larry Williams
Field Supervisor
South Florida Ecological Services Field Office
cc: electronic only
City of Islamorada, Islamorada, Florida (Kevin Bond)
Ciqj of Ke�j Colonp Beach-,
City of Key West, Key West, Florida (Donald Craig)
City of Layton, Layton, Florida (Norman S. Anderson)
City of Marathon, Marathon, Florida (George Garrett)
DOI, SOL, Atlanta, Georgia (Holly Deal)
DOJ, Washington, D.C. (Mark Brown)
FEMA, Washington, D.C. (Amy Weinhouse)
Eastern Indigo Snake Species Assessment Guide
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 corals 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; I 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 IO(a)(I)(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
2/12/2012
VOMWI,
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
their presence in the landscape (Steiner et aL 1983). In the Florida Keys, the primary threat to the
indi I o snake is native habitat loss and frall I 1:1�� 1111 "1 in WA"Mfult-ARS1.1W
determination of "no effect" for a particular project, the Service supports this determination. If the
use of this guide results in a deterrr�nation 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 affecC determination, then additional coordination with the Service is
necessary prior to permit issuance. 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
arcel is not on Big Pine Key or No Name Key... .............................................................. go to C
CC. The property is within a develond subdivision or canal subdivision and adjacent lots
and properties, within 500 feet are greater than 60 orcent develoand or scarified.
Provide indigo snake protection measures brochure . .......................................................... NLAA
Not as Above . ............................... ......... ................................................
—?,a to U
D. Parcel is mapped as containing the indigo snake's native habitat (i.e., hammock,
pineIand, scrub mangrove, freshwater wetland, salt marsh, buttonwood, mangrove, or
beachberm) ................ .................................................................................................... go to DE
111FIFF119IMPEW
I D�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 on the property and a general description of the surrounding properties
within 500 feet is also required. Once complete ............................................................ ..go to FS
N
2/12/2012
Eastern indigo snake
Re Pff)M� 10
Species Assessment Guide
........ ............ I—' .............................................
F. The applicant has proposed either on -site or off -site habitat compensation*
commensurate with the amount of native habitat lost &7j has received a copy of the
Service's indigo snake protection measures (attached), ARd.has agreed to implement the
measures; and t"ost the information brochure on -site. ApplieantIsThe signed
ve6fieation-4Assessment Form_verif in 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 w-post the information brochure on -
site. AppHeant!s1he signed YOFifleatiell efAs essment Form verif, i Oz this is in the
,y
permit file maintained by the NFIP participant community. Permit with indigo snake
protectionmeasures ............................................................................................................. NLAA
Notas above ................ ................................................................................................. may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation eidwr-through
6ad-ae�ftDrotection or habiw-restoration or9fq;serm&,p---of habitat, 4ndl,/or monetary
contributions to accomolish the aforementioned activities 9DP4aad-aeqei&i&4e*, according to the
participating community's land development regulations. A vegetation survey is required to
document species and size present prior to construction impact. The Service considers the
compensation as like -for -like replacement of habitat and the loss is not a deduction from the not -to -
exceed habitat acreage losses referenced in the BO.
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 indigo
snake, it is important for FEMA and the NFIP participants to monitor the number of permits and
2/12/2012
Eastern indigo snake
Species Assessment Guide
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.
11
2/12/2012
Eastern indigo snake
Literature Cited
Species Assessment Guide
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(l ):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.
W,
2/12/2012
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
3381 l; Wildlife Alert Number 1-800-404-3922.
2/12/2012
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Lower Keys Marsh Rabbit Assessment Guide
The U.S. Fish and Wildlife Service's (Service) FEA 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 (Sylvilagus palusrris hefnerl) 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 Lower Keys marsh rabbit 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 Lower Keys marsh rabbit due to associated free -roaming cats (see
Tables 19, EA- l l a and EA- 11 b 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 Lower Keys
marsh rabbit 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 Lower Keys marsh rabbit'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 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. 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
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.
2/12/2012
Lower Keys marsh rabbit Species Assessment Guide
Typical Lower Keys marsh rabbit 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 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, Lower Keys marsh rabbits are polygamous, and generally breed
throughout the year (Holler and Conway 1979). Although Lower Keys marsh rabbits 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 (TTP) 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 TTP 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 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 TTP 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 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
2
2/12/2012
Lower Keys marsh rabbit
Species Assessment Guide
among suitable habitat patches is necessary for Lower Keys marsh rabbit 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 Lower Keys marsh
rabbit 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 further
coordination with the Service is necessary. 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 d the buffer zone,
it should be whol!y considered as being in the species focus area...............................go to G
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
GH
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 develoned subdivision and adjacent lots and
properties within 500 feet are greater than 60 percent developed or
scarified......................................................................................... go to GH
The property is not as above and contains and/or is adjacent to contiguous tracts of this
species' native habitat greater than I acre in size. A Lower Keys marsh rabbit survey
(authorized by the Service) is required.......................................................................go to E
Native habitat ielan s scrub rove freshwater wetland salt marsh buttonwood.,
and beacher l will be impacted but neither of the above apply to the property.... ..go to F
ofilir t l
Lower Keys marsh rabbit Species Assessment Guide
E. The Lower Keys marsh rabbit survey was negative.....................................................go to F
The Lower Keys marsh rabbit survey was positive ................................................ may affect
F. 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
GG. Parcel is within a canal su ivisio. and is separated by a canal, open water, or US-1 from
native habitat in the focus a larger a 1 ac . Provide cat brochure NLAA
The parcel is not as above ........................................ I......................... go to
H. The applicant, proposes the construction of a new residence .........................go to NJ
Proposal is for actions other than a new residence. Provide cat brochure NLAA
41. The new residence is proposed in the species focus area 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 and 575 residences in buffer lands)........................................may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation emff
through protection or- -restoration _ (.habitat, and/or
monetary contributions to accomplish the aforementioned activities ' ,
according to the participating community's land development regulations. A vegetation survey
is required to document species and size present prior to construction impact. The Service
considers the compensation as like -for -like replacement of habitat and the loss is not a deduction
from the not -to -exceed habitat acreage losses referenced in the BO.
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 this 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 is 2 acres. This partial credit is
4
2/12/2012
Lower Keys marsh rabbit
Species Assessment Guide
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
Lower Keys marsh rabbit, 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. I999. 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.
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.
5
2/12/2012
Lower Keys marsh rabbit
Species Assessment Guide
U.S. Fish and Wildlife Service. 2007. Lower Keys marsh rabbit, 5-year status review. Atlanta,
Georgia.
2/12/2012
Key Deer Assessment Guide
December 2011
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 clayium) 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
December 2011
Key Deer Species Assessment Guide
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
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. 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.................................................................................... .og to E
D. The applicant's proposed action does not restrict access to the referenced permanent
freshwater...................................................................................................... g0 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
9
December 2011
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 applicant has proposed either on -site or off -site habitat compensation* commensurate
with the amount of native habitat removed or modified.....................................go to H
The applicant is not proposing habitat compensation or habitat compensation does not meet
minimum compensation requirements.................................................... may affect
H. The proposed action includes fencing or other structures that comply with the Service's
deer friendly fencing guidelines (see attachment) ................................................. NLAA
Notas above,.................................................................................. may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation either
through habitat restoration, or monetary contribution for land acquisition, according to the
participating community's land development regulations. A vegetation survey is required to
document species and size present prior to construction impact. The Service considers the
compensation as like -for -like replacement of habitat and the loss is not a deduction from the not -
to -exceed habitat acreage losses referenced in the BO.
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 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
10
December 2011
Key Deer Species Assessment Guide
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.
Lopez, RR, 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
December 2011
Key Deer
KEY DEER FENCING GUIDELINES
April 25, 2011
Species Assessment Guide
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 Regulations, with more stringent
rules in effect for Big Pine Key. Specific deer -friendly design standards are incorporated in the
Big Pine code that include fence setbacks from roadways and maximum fencing allowances
under various zoning and habitat conditions. Although helpful, these restrictive codes are
inadequate to address the issue of cumulative Key deer habitat loss and fragmentation throughout
the range of the species. 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.
Property sizes vary widely in the Lower Keys, typically ranging from 5,000 sq. ft. to several
acres. In addition, the various configurations of properties very widely with respect to their
value to Key deer. Thus, a one -size -fits -all fence guideline is not possible, and fencing
restrictions need to be flexible and based on the size and location of a particular fence project.
To this end, the U.S. Fish and Wildlife Service has developed the following guidelines for
fencing throughout the range of the Key deer including Big Pine, No Name, Little Torch, Middle
Torch, Big Torch, Ramrod, Summerland, Little Knockemdown, Cudjoe, Upper Sugarloaf, and
Lower Sugarloaf Keys (Table 1). These recommendations are based on the premise that large
lots are generally more valuable for Key deer than small lots and should have more restrictive
fencing requirements. These recommendations are not intended to supplant Monroe County
code but rather supplement protection for Key deer. Where the Monroe County code is more
restrictive, we will defer to that guidance in permit review.
December 2011
Key Deer
Species Assessment Guide
Table 1. Fencing allowances for various lot sizes throughout the range of the Key deer.
PARCEL SIZE
FENCING ALLOWED
COMMENTS
less than '/ acre
maintain 15' setback from all
No restrictive easement
roadways
maximum fencing allowed is
Restrictive easement
greater than '/a acre
'/a acre
over remainder of
maintain 15' setback from all
property prohibiting
roadways
additional fencing
Specific Sites on Big Pine Key: The following additional restrictions on fencing are intended to
protect Key deer in areas where documented road mortality of Key deer has occurred and where
additional fencing adjacent to these roadways may be detrimental to Key deer by altering
movement patterns and making them more vulnerable to road mortality.
Table 2. Locations of roadways where additional fencing setbacks will provide protection for
Key deer from road mortality.
Big Pine Key
Lots adjacent to Watson Boulevard from I Maintain minimum setback
Key Deer Blvd. to No Name Bridge of 25' from Watson Blvd.
Big Pine Key
Palm Villa' Lots adjacent to Avenue B
Maintain minimum setback
of 25' from Avenue B
Big Pine Key
Lots adjacent to Wilder Road
Maintain minimum setback
of 25' from Wilder Road
Big Pine Key
Lots adjacent to Key Deer Blvd.
Maintain minimum setback
of 25' from Key Deer Blvd.
Little Torch Key
Lots adjacent to S.R 4-A
Maintain minimum setback
of 25' from SR 4-A
Sugarloaf Key
Lots adjacent to Crane Blvd.
Maintain minimum setback
of 25' from Crane Blvd.
ri
December 2011
Key Largo Woodrat and Key Largo Cotton Mouse Assessment Guide
December 2011
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).
December 2011
Key Largo woodrat and Key Largo cotton mouse Species Assessment Guide
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
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 l 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 duality 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 further
coordination with the Service is necessary. This guide is subject to revision as necessary.
December 2011
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).....................................................................................................................go to G
Parcel is not in the species focus area, the buffer area, or on the RE parcel Iist...... no effect
B. Parcel is in North Key Largo. The Service considers the property to be occupied habitat...
affect
...................................................................................................m y
a
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) -go to G
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.......................................................................... g0 to D
D. The property is within a canal subdivision and adjacent lots and properties within 500 feet
are greater than 60 percent developed or scarified ........................................ go to G
The property is not as above and is adjacent to contiguous hammock greater than 1 acre in
size. A small mammal survey (authorized by the Service) is required................go to E
Native habitat will be impacted but neither of the above apply to the property ....... go to F
E. The small mammal survey was negative for the Key Largo woodrat and/or Key Largo
cottonmouse.................................................................................................................go to F
The small mammal survey was positive for the Key Largo woodrat and/or cotton
mouse............................................................................................................... may affect
F. The applicant has proposed either on -site or off -site habitat compensation commensurate
with the amount of native habitat lost ...................................................... .o g to G
The applicant is not proposing habitat compensation or habitat compensation does not meet
minimum compensation requirements ....................................................may affect
G. The applicant proposes the construction of a new residence .............................go to H
Proposal is for actions other than a new residence. Provide cat brochure.............NLAA
9
December 2011
Key Largo woodrat and Key Largo cotton mouse Species Assessment Guide
H. The new residence is proposed in the species focus area in south Key Largo. Provide cat
brochure.............................................................................................1VLAA
The new residence is proposed in the buffer area 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 either
through habitat restoration, or monetary contribution for land acquisition, according to the
participating community's land development regulations. A vegetation survey is required to
document species and size present prior to construction impact. The Service considers the
compensation as like -for -like replacement of habitat and the loss is not a deduction from the not -
to -exceed habitat acreage losses referenced in the BO.
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 this 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 is 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
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.
4
December 2011
Key Largo woodrat and Key Largo cotton mouse Species Assessment Guide
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(l):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.
ki
December 2011
Key Tree -Cactus Assessment Guide
December 2011
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. 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 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.,
hammock or beach berm)...........................................................................................go to C
C. 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 ............................................... D
The Key tree -cactus is present on the property ........................................ may affect
D. 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 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 either
through habitat restoration, or monetary contribution for land acquisition, according to the
participating community's land development regulations. A vegetation survey is required to
document species and size present prior to construction impact. The Service considers the
compensation as like -for -like replacement of habitat and the loss is not a deduction from the not -
to -exceed habitat acreage losses referenced in the BO.
2 December 2011
Key tree -cactus Species Assessment Guide
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.
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. Tatje (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.
December 2011
Schaus Swallowtail Butterfly Assessment Guide
December 2011
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 eastern North America 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
Schaus swallowtail butterfly
Species Assessment Guide
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
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 required. 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. 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...................................................................................... o g 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 considers the property to be occupied
habitat............................................ ........................... may affect
The property is in South Key Largo or Islamorada........................................go to D
D. The property is within a canal subdivision and adjacent lots and properties within 500 feet
are greater than 60 percent developed or scarified...........................................NLAA
2 December 2011
Schaus swallowtail butterfly Species Assessment Guide
Notas above....................................................................................... o g to E
E. The vegetation survey documents the presence of torchwood, wild lime, or any of the
above referenced nectaring food source plant species (wild coffee, guava, or cheese
shrub/yellowroot)...........................................................................may affect
The vegetation survey did not document the presence of any of the above species .... go to F
F. The applicant has proposed either onsite or off site habitat compensation* commensurate
with the amount of native habitat lost. Permit with habitat compensation.............NLAA
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 either
through habitat restoration, or monetary contribution for land acquisition, according to the
participating community's land development regulations. A vegetation survey is required to
document species and size present prior to construction impact. The Service considers the
compensation as like -for -like replacement of habitat and the loss is not a deduction from the not -
to -exceed habitat acreage losses referenced in the BO.
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
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):I36-140.
3 December 2011
Schaus swallowtail butterfly
Species Assessment Guide
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.
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
December 2011
Stock Island Tree Snail Assessment Guide
December 2011
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. nesodryas 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 I 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
December 2011
Stock Island tree snail
Species Assessment Guide
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
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. 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
affect
..... .............................. ................................ I ....................... m y ct
a
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 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....................................... ............................. to C
C. 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 D
D. The property is within a canal subdivision and adjacent lots and properties within 500 feet
are greater than 60 percent developed or scarified..........................................NLAA
Notas above...................................................................................... o g 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
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation either
through habitat restoration, or monetary contribution for land acquisition, according to the
participating community's land development regulations. A vegetation survey is required to
document species and size present prior to construction impact. The Service considers the
compensation as like -for -like replacement of habitat and the loss is not a deduction from the not -
to -exceed habitat acreage losses referenced in the BO.
2
December 2011
Stock Island tree snail Species Assessment Guide
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.
Literature Cited
Deisler, J.E. 1987. The ecology of the Stock Island Tree Snail (Orthalicus reses reses) (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.
3
December 2011
Silver Rice Rat Assessment Guide
December 2011
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) (Orygomys palustris natator Lf.Q. argentatusl) 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.
December 2011
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 further coordination with the Service is
necessary. 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)..............................................................................................................................go to G
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
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
2
December 2011
Silver rice rat
Species Assessment Guide
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 and adjacent lots and properties within 500 feet
are greater than 60 percent developed or scarified ......................................... go to G
The property is not as above and is adjacent to contiguous tracts of this species' native
habitat greater than 1 acre in size. A small mammal survey (authorized by the Service) is
required.......................................................................................................................go to E
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 F
E. The small mammal survey was negative for the silver rice rat.....................................go to F
The small mammal survey was positive for the silver rice rat ............................... may affect
F. The applicant has proposed either on -site or off -site habitat compensation commensurate
with the amount of native habitat lost ...................................................... .o g to G
The applicant is not proposing habitat compensation or habitat compensation does not meet
minimum compensation requirements ....................................................may affect
G. The applicant proposes the construction of a new residence .............................go to H
Proposal is for actions other than a new residence. Provide cat brochure.............NLAA
H. The new residence is proposed in the species focus area and the total of new residential
permits issued in the focus area 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 and 349 residences in buffer lands)......................................may affect
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation either
through habitat restoration, or monetary contribution for land acquisition, according to the
December 2011
Silver rice rat
Species Assessment Guide
participating community's land development regulations. A vegetation survey is required to
document species and size present prior to construction impact. The Service considers the
compensation as like -for -like replacement of habitat and the loss is not a deduction from the not -
to -exceed habitat acreage losses referenced in the BO.
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 this 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 is 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.
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.
4
December 2011
Silver rice rat
Species Assessment Guide
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, Oryzomys 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. Oryzomys 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
5
December 2011
Silver Rice Rat Critical Habitat Assessment Guide
December 2011
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) (013Lzomys palustris na ator Lf.O ar entatus and a) 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. I; but not lands in Township 675, Range 27E,
Section 8, nor the northern 1/5 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
December 2011
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. 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
..................................................................................................................... gotoB
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 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 applicant is not proposing habitat compensation or habitat compensation does not meet
minimum compensation requirements.................................................... may affect
K
December 2011
Silver Rice Rat Critical Habitat
Species Assessment Guide
*Habitat Compensation
The minimum recommended habitat compensation is replacement of lost vegetation either
through habitat restoration, or monetary contribution for land acquisition, according to the
participating community's land development regulations. A vegetation survey is required to
document species and size present prior to construction impact. The Service considers the
compensation as like -for -like replacement of habitat and the loss is not a deduction from the not -
to -exceed habitat acreage losses referenced in the BO.
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.
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):460304603)4.
U.S. Fish and Wildlife Service. 2006. Biological Opinion. FEMA's continued administration of
the NFIP in Monroe County, Florida. Atlanta, Georgia.
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December 2011