FKAA on own for species mitigationBy Steve Estes
About seven years ago, County Mayor George Neugent, who was then a county commissioner without the honorary title, asked county staff if they had at all researched what mitigation might be required to build the planned for, and now coming soon, central wastewater system collection lines around Big Pine Key.
That question still has yet to be answered.
Mitigation, generally in the form of land purchases, is required for nearly all new development of any kind on Big Pine and No Name Key that will disturb habitat crucial to the many endangered species that call the islands home, or will leave structures of any kind in that same habitat or within a buffer zone for the Lower Keys Marsh Rabbit.
County staff tracks those mitigation needs through permit applications. But the Florida Keys Aqueduct Authority is exempt from county permitting requirements by virtue of state statute.
That, claims county planning staff, means that before pipes can go in the ground on Big Pine Key FKAA will have to talk to the US Fish and Wildlife Service about mitigation needs.
FKAA will probably have to expand that conversation to include the rest of the Lower Keys islands included in the Cudjoe Regional Wastewater System as those areas are covered by a county/USFWS and Federal Emergency Management Agency agreement also dealing with the protection of endangered species and habitat for those species.
Some of the concerns will arise due to the maximum allowable square footage for recreational and community/public facilities on Big Pine and No Name. County staff claims that the sewer lines will fall under the public facilities definition of the Habitat Conservation Plan. Underthat category, no more than 24,000 square feet is allowed, and although the rebuilt Big Pine Fire Station and newly built Big Pine Community Park, as well as other smaller projects have been deducted from that total, officials say that it is highly unlikely lift stations and pumping stations would exceed that cap.
The issue becomes the amount of mitigation USFWS may require for the pipes to traverse their lands or to traverse habitat lands or buffer zone. While FKAA does not require a permit to develop in established county rights-of-way under Florida laws, it needs easements to traverse private property and may well need mitigation credits for crossing or building in habitat areas or the marsh rabbit buffer zone.
Former National Key Deer Refuge Manager Anne Morkill asked county officials several times when the service might expect detailed drawings so it could calculate the eventual H impact of sewer lines on Big Pine Key. No Name Key is currently not in the wastewater master plan for central pipes so the assumption is that mitigation there would not be required.
Final design plans for the outer island portion of the Cudjoe Regional are still not yet complete, but the completed plans for the inner islands portion have not yet been submitted to the county for evaluation by staff, nor to SUFWS for potential mitigation evaluation.
The Key Largo Wastewater Treatment District recently had to contract with the county to perform more than $600,000 in mitigation activities for impacts caused by that system in the Upper Keys.
The master land use plan for Big Pine and No Name Keys recognizes that sewer collection pipes will eventually come to pass, but states that all such public infrastructure shall be developed on disturbed/scarified uplands or in existing ROW.
Original plans called for pipes to remain in the right-of-way, but some interior areas of Big Pine Key were added to the central collection system in January that will traverse private roads and lands owned by the refuge. On some private roads, the landowner owns everything up to the center line of the road and must grant an easement for utilities to work in that right-of-way. To date, no easement applications have been filed with USFWS for land owned by the refuge in connection with the planned sewer system pipes.
There is also some question about the low-pressure grinder pumps that are to be installed on private lots as part of the Cudjoe Regional. It is FKAA’s assertion that it can do that work without county permits because its part of the overall system development, but will need easements from the landowners.
In some cases, Big Pine and No Name Key lots with houses built on them still carry H impact, although the case is rare. That generally occurs when the home is deep inside the refuge and in a deer movement corridor with no fence.
Under the terms of the HCP, no more than seven acres of native habitat can be disturbed for pubic facility development over the 20-year life of the HCP, a document that was implemented in 2003 and ends in 2023. That seven acres includes the paving of current unpaved roads and the widening of existing paved roads.
The HCP also stipulates that there will be no direct impacts to the marsh rabbit.
There are plans afoot, however, to change the parameters of the HCP due to the pending listing of two butterflies that make homes on Big Pine Key on the endangered list.
Even if the HCP is tossed out as the Monroe Board of County Commissioners has suggested in recent weeks, Monroe County is still under the 2010 USFWS Biological Opinion, an answer to a 20-year-old lawsuit from environmental groups that species were getting short shrift in the development game in Monroe County.
Judges eventually wound up siding with the environmental groups, and after a couple of years of haggling, the current permit review process was born. The need for that process is spelled out in a federal court order and thus irrelevant to state laws permitting rights-of-way use by utilities.
Under that process, any development, including public infrastructure, is limited to a maximum cap in acreage impacts within the most sensitive environmental areas. Big Pine Key was excluded from that calculation because it was already covered by the HCP, but if the county decides to toss out the HCP, the review process would probably kick in.
Under the initial terms of the review process, the county was responsible for monitoring all development and tracking the accumulated acreage. That didn’t sit well with officials who felt that once the maximum cap had been exceeded, the county was in the cross hairs for takings cases for denying permits.
According to county Growth Management Director Christine Hurley, one of the reasons the county fought so hard to get the federal agency review as part of the process was due to the number of agencies, including FKAA, for which the county does not control permitting, but would have been liable for the cumulative impacts of those agencies.
So USFWS/FEMA and the courts agreed that if county staff felt impacts were possible, the project would be sent to USFWS for review and their interpretation.
And that is what needs to happen before much more dirt gets turned for the Cudjoe Regional project. The permit review process affects all of unincorporated Monroe County. All of the Cudjoe Regional is in unincorporated county.
”As you can see, it was fully anticipated during development of the HCP and LCP that Monroe County would account for the impacts associated with the installation of wastewater facilities, and further, that the county would provide mitigation for those impacts,” county staff wrote in a memo to FKAA.
“In the event the FKAA elects not to permit or otherwise coordinate the construction of wastewater facilities through the county’s building department, you will need to consult directly with the U.S. Fish and Wildlife Service in order to meet the requirements of the endangered species act and mitigate impacts in that manner,” staff wrote.
Who covers mitigation costs, should there be any, also is still a matter for debate. Since the beginning of the HCP, Monroe County has supplied all mitigation needs for both public and private projects on Big Pine and No Name Key No one has said if that will remain so in this case.
For areas outside the HCP, developers have options including payment in lieu to mitigate habitat elsewhere in the county, land donations to cover mitigation impacts, or simply allow the mitigation needs to remain inside the maximum cap with the county’s permission.
More than seven years later and Neugent’s original question still needs to be answered.