No Name questions USFWS authority to question

By Steve Estes

Instead of setting about answering information requests from the US Fish and Wildlife Service about running commercial power to No Name Key, the No Name Key Property Owner’s Association instead wants USFWS to tell the association how it gets its authority to ask for the information.

USFWS responded to a request from Keys Energy Service for input on permitting commercial power lines to No Name Key, a sparsely developed island off the north east shore of Big Pine Key where commercial power, water and sewer treatment have never existed.

In that letter, federal officials asked for surveys on endangered species that live on the island, including in the road rights-of-way, and consult with Monroe County to determine how much, if any, mitigation would have to be performed should the power lines and poles impact wetlands and native plants along the roadway.

“We are not aware of any place that a public utility company in Monroe County, Florida has had to consult with the US Fish and Wildlife Service for any single-family home electrical installation except for No Name Key.

USFWS claims land use oversight on Big Pine and No Name Key as a result of the Habitat Conservation Plan, an agreement between the county and USFWS, along with the state Departments of Community Affairs and Transportation.

USFWS officials have already opined that development conducted outside the scope of the existing HCP will have to be individually reviewed.

According to County Attorney Suzanne Hutton, rules and regulations associated with the federal Endangered Species Act, as it has been interpreted by the courts, give USFWS the authority to require take permits for developments impacting endangered species.

“While they (USFWS) do not regulate development per se, their decision to issue or deny a permit or determine it isn’t necessary has an impact on development,” said Hutton.

According to Paul Souza, USFWS supervisor for ecological services in the Vero Beach office, No Name Key is home to seven endangered or threatened species. Only four of those are covered by the HCP.

USFWS also suggested that Keys consult with the US Army Corps of Engineers on wetlands issues that might arise from the project.

The association wondered about that requirement as well, “Keys Energy has never been required to consult with the US Army Corps of Engineers when using the public rights-of-way adjacent to a state road.”

“The association strongly objects to Monroe County Board of County Commissioners requiring Keys Energy to seek any review, comments and recommendations beyond the design phase as it relates to USFWS responsibilities,” the letter stated.

USFWS officials have already opined that regardless of who the applicant might be, Monroe County as a geographical entity won’t be absolved of the need to consult with the federal agency prior to building the project.

Numerous environmental groups have stopped private, county, state and federal projects in their tracks while developers, regardless of status, have answered questions dealing with the Endangered Species Act.

The most notable in Monroe County was the USFWS requirement for mitigation to widen US 1 through the business district of Big Pine which resulted in the deer underpass tunnels at the island’s east end.

Association attorney Mary Bakke wrote, “I do not believe it within your legal authority or purview to offer legal conclusions on the HCP or the Monroe County Code, nor do I believe “potential development activities” are within your authority to regulate or offer conclusions of law, or make comments and recommendations.

USFWS officials point out that the HCP, and its resultant Incidental Take Permit, which allows limited human developmental impact on endangered species and habitat in exchange for mitigation of habitat, primarily through purchase of lands for perpetual conservation, was signed in 2006, and purported to cover all development existing at that time.

Mitigation under the ITP is required only for new development or redevelopment that increases the existing footprint.

KEYS officials said recently that unless they received affirmative responses from the agencies involved, they would not proceed with the project after construction bids are opened March 5.