BOCC may toss out island HCP
Lack of Tier One permits, new species may force the issue

By Steve Estes

It was six years in the making.

It took thousands of man hours, both paid and volunteer.

It was designed to last 20 years.

It has been in effect for just 10 years.

The purpose was aid Monroe County in protecting the 32 endangered species that call this county home, but specifically to enhance the survival prospects of the Key Deer, the Lower Keys Marsh Rabbit and the Eastern Indigo Snake.

And now, the Board of County Commissioners is strongly contemplating tossing the document in the proverbial trash and going with something different.

Monroe County, the state Department of Transportation, the then state Department of Community Affairs (now Department of Economic Opportunity), and the US Fish and Wildlife Service spent six years hammering out a development agreement for Big Pine and No Name Keys that was supposed to guide development for 20 years on the two ecologically sensitive islands.

That agreement allowed limited human development in return for mitigation in the form of conservation land purchases at a rate of three to one.

The agencies devised a rather complicated formula to determine the habitat value of each parcel of land on the two islands, that value related to the endangered species, of course, and for every percentage of H used by new development, or by enlarged redevelopment, the county had to bank three times as much H in mitigation.

The total H that could be used over the 20 years of the Incidental Take Permit that resulted from the Habitat Conservation Plan was 1.1. The mitigation required would be 3.3.

But now, the specter of additional endangered species on the two islands about to be listed by USFWS and the possibility of no more allowable development in the most environmentally sensitive areas of the two islands has Monroe County seeking a solution.

County officials need a solution that prevents probably dozens of property owners who own potentially buildable land in the Tier One areas of the two islands from filing takings cases against the county when it can no longer issue permits in that area.

And that time has come.

According to Environmental Resources Planner Mike Roberts, the county was allowed 10 Tier One permits over the 20-year life of the agreement, or .022 H, whichever came first.

Tier One lands are deemed to be the most environmentally sensitive, and of highest quality for potential Key Deer habitat. The H impact is based as much on distance from US 1 as on what is located on the land itself. The further from US 1, the more prone to vehicle collisions for the deer.

Four Tier One permits have been issued, and another five building allocations without permits have been awarded. The amount of Tier One land left makes it highly unlikely that another such property could successfully wend its way through the convoluted system and result in a single-family home.

That leaves dozens of privately owned parcels on the two islands that could potentially apply for a building allocation only to be turned away.

And it would be the county turning them away because the HCP/ITP is a county approved document.

Also, USFWS has said several times in the past that it would not stand beside the county in court and defend land takings cases. And, oh by the way, the state has said the same thing, even though both were partners to the agreement.

The lack of Tier One lands isn’t the only issue about to confront county development personnel.

When the HCP/ITP was developed, it also included a 500-meter buffer around what was thought to be known habitat for the Lower Keys Marsh Rabbit. That buffer zone, where human development is nearly impossible, and would become so with the lack of Tier One availability, includes 170 parcels that 50 percent or more upland area, said Roberts, meaning those parcels could conceivably be developed in some fashion in the future.

But not without more Tier One H.

And that, said Roberts, could open the county to takings lawsuits for which they could be solely responsible. The bill could stretch into the millions.

One of the parameters of the ITP is the deer mortality ratio each year. The ITP set that mortality ratio, calculated by the number of deer kills by human related causes such as vehicle collisions or poaching, against the number of deer seen in a normal road county census, at 1.53.

USFWS estimates the deer population by driving around the islands and counting the number of deer staffers see during that trek.

Based on that calculation, the county has exceeded the mortality ratio each year for the last four years, with the 2012 ratio more than 78 percent above the maximum allowable.

Based on that calculation, USFWS could, after any of the last four yearly reports, declared a development moratorium on Big Pine and No Name Keys until the county addressed ways to decrease the mortality ratio.

But that ratio might not be the best way to determine human impacts, said Refuge Manager Nancy Finley.

She acknowledged, and Roberts agreed, that the USFWS census methodology is outdated and needs some modernization.

The only way to change that is to reopen the HCP consultation and come up with a new methodology.

The choice may be taken from the county’s control.

Because USFWS has announced plans to add two rare butterflies that probably exist on Big Pine Key to the endangered species list within weeks, it has declared that it will reopen a consultation with the Federal Emergency Management Agency to provide protections for the butterflies.

No one knows at this point what those protections might be, but tighter restrictions on development in areas the butterflies call home is probably a given.

The croton plant is the primary home for the butterflies, and croton are generally found in pine rocklands. Big Pine is one of the last remaining stands of pine rockland in the world.

So with the choice to again change the rules for development on Big Pine out of the BOCC’s hands, it is a matter now of devising strategies for avoiding takings suits in the long term, said Roberts.

Roberts said that the mortality ratio hasn’t held up under scrutiny anyway in the 10 years since the inception of the ITP.

“Development on Big Pine and No Name has been relatively flat,” said Roberts. “Traffic has been relatively flat, but the number of deer kills by vehicle collision continues to rise.”

The data doesn’t support development pressure and traffic as the two primary threats to the continued existence of the diminutive Key Deer, said Roberts.

Roberts said, and Finley concurred, that the deer herd is probably the largest its ever been right now.

“We are at or above carrying capacity for the deer on the core islands,” said Finley.

County Mayor George Neugent said that at one point in the not so distant past, the refuge had announced plans to disseminate birth control to the deer herd to slow its growth and ease pressures on forage areas.

And there is data missing that makes meaningful decisions about the future of development and species protection on the two islands difficult, said Roberts.

“We know the census methodology needs work, and the service has not been able to do a habitat assessment with  budget constraints. They don’t know, for instance, definitive data concerning fresh water supply and locations for the deer,” he said.

One of the reasons the deer herd retreated from human development in other areas to Big Pine and No Name Key is the relative abundance of fresh water there compared to other islands in the Keys.

The county, FEMA and USFWS just came to an agreement a couple of years ago on development restrictions in the rest of Monroe County to insure continued survival of endangered species. Big Pine was left almost entirely out of those discussions due to the existence of the HCP/ITP.

But that will change, said County Growth Management Director Christine Hurley.

She said county staff is offering up a few different options for commission discussion in the coming months.

One of those is to leave the HCP/ITP in place, a move that would be fruitless since FEMA and USFWS will reopen the agreement and drag the county along as the entity of political responsibility.

One option is to take the initiative to amend the ITP and go through a years-long process of negotiation with FEMA and USFWS.

Another is to just close the HCP/ITP and use the current Species Assessment Guides as a driving force for development on the two islands. Those guides are already in play on every other island in unincorporated Monroe County.

That, said Hurley, might get the county out of the immediate crosshairs for takings suits because if there is a question on whether development will impact a listed species, that application is sent to USFWS for final review and the county doesn’t issue permits until the review is complete and any mitigation completed.

Doing away with the ITP altogether doesn’t necessarily answer the needs of the refuge, said Finley.

“The HCP/ITP is specifically geared toward protection of the deer and marsh rabbit,” she said. “Using the general guidelines of the species guides doesn’t address the high collision mortality problem on US 1.”

Commissioner Heather Carruthers said she didn’t believe when it was done that the road improvements on Big Pine in the last decade, which actually sparked the creation of the HCP, were designed for the best results in protecting deer.

“People use the turn lane to pass and they can’t see the side of the road. The deer dart out and they get hit,” she said.

Refuge officials have known for several years that young bucks, unable to find a range of their own, have been wandering further afield from birth places to establish a harem. They have also been aware that human feeding of deer has become a bigger issue than in year’s past, making the deer less wary of humans and instead looking at them as a food source.

But it’s not the right kind of food, says Finley.

Both federal and county staff agree that hammering out a new development agreement for species protection on Big Pine Key could be a years-long process.

Whether the HCP/ITP stays in play throughout that process remains to be seen.

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