Avoidance and Permitting
In Florida no person shall take, possess, or sell any Federal or State-designated Endangered or Threatened Species or parts thereof including their nests or eggs except as allowed by specific federal or state permits. Where protected species or their essential habitats may be onsite of a proposed project, planning in advance to avoid these impacts can prevent the need to obtain a permit. If impacts to listed species, or “take” as defined in Rule 68A-27.001(4) F.A.C cannot be avoided, a permit may be necessary.
FWC’s Imperiled Species Management Plan lays out the current protections for Florida’s state-listed fish and wildlife. It applies an integrated approach to reduce the risk of extinction, maintain important habitat, and improve support of conservation efforts. The Plan is focused on filling in data gaps to improve scientific decision-making for imperiled species, and maximizing conservation efforts through communication, outreach, and management. It ultimately outlines the conservation needs of Florida’s state-listed species. The Plan also helps to clarify the regulatory authority in place for state-listed species, including changes in permitting, rules, and policies. Several new policies were created to support the new Plan. These policies include: permitting standards for incidental take of cryptic species, nest removal for inactive-single use nests of state-threatened birds, guidelines for state-listed species and man-made structures, and; aversive conditioning of state-listed species.
Avoidance measures can reduce the possibility of take and prevent the need for a permit. Avoidance measures can include many actions discussed in the Conservation and Development Planning Chapter such as locating development activities in disturbed areas with minimal wildlife habitat, observing adequate buffer zones, conducting construction outside of nesting seasons, modification of construction methods, having monitors/observers on site during construction, and many others. FWC’s recently developed Conservation Measures and Permitting Guidelines provide specific guidance on avoiding take of individual species.
Numerous laws, treaties, and regulations use permits to help conserve state and federally protected fish and wildlife. For a federally-designated Endangered or Threatened Species, activities that result in take must be either authorized by USFWS or NMFS; or a permit may be obtained from FWC or other authority who has a written agreement or regulatory delegation from USFWS or NMFS. The USFWS’ Florida field offices have developed landowner and consultant tools and information to assist in assembling complete federal consultation requests. In rules of the FWC, Chapter 68A-27.007 F.A.C., permits and authorizations for the take of Endangered and Threatened Species are outlined. For state-threatened species intentional take permits may only be considered for scientific or conservation purposes (defined as activities that further the conservation or survival of the species taken).
Examples of authorized activities that do NOT require a permit include: land management activities that support management plans for the species; agriculture (as defined in Section 570.02 F.S.) conducted in accordance with wildlife best management practices; wildlands fire suppression activities; and intentional take of a marine organism licensed under saltwater fishing regulations (see Chapter 68B-8). Airports may also be authorized to take wildlife in emergency situations when a safety risk is imposed (Rule 68A-9.012).
In 1982, Congress amended the ESA providing Incidental Take Permits (ITPs) for undertaking otherwise lawful projects that might result in the take of an endangered or threatened species. FWC has adopted a similar process which can also be used to reduce conflicts between listed species and development. Both state and federal ITPs provide a framework encouraging creative partnerships between the private sector and local, state, and federal agencies.
ITPs may be issued for work that has scientific or conservation benefit to the species, or upon showing that the activity or project will not have a negative impact on the survival potential of the species. A scientific or conservation purpose means activities that further the conservation or survival of the species, including collection of scientific data needed for conservation or management of the species. Scientific benefit, conservation benefit, and negative impacts are evaluated by considering the factors listed in Rule 68A-27.007(2)(b) F.A.C. Close coordination with FWC and/or USFWS is highly recommended when applying for permits. Factors which shall be considered in determining whether an ITP may be granted are:
- the objectives of a federal recovery plan or state management plan;
- foreseeable long-range impact over time if take of the species is authorized;
- the impacts to other fish and wildlife resources;
- extent of injury, harm, or loss of the species;
- whether the incidental take could reasonably be avoided, minimized, or mitigated by the permit applicant;
- human safety;
- other factors relevant to the conservation and management of the species.
The FWC Conservation Measures and Permitting Guidelines detail the suite of options for specific state-threatened species that can address the minimization and mitigation evaluation factors listed above required for the issuance of an ITP. Mitigation is used when the risk of take cannot be avoided completely or reduced to an acceptable level. Options include habitat mitigation, providing conservation information, education or scientific benefits, or funding of these benefits. Habitat mitigation may be in the forms of creation, enhancement, restoration, and management of habitat that would contribute a conservation benefit, or land preservation through conservation easements. Alternatively, monetary contributions to support conservation actions that would benefit the target fish and wildlife species may be used when other forms of mitigation may not be available. The options of information or scientific benefit may not be fully comprehensive forms of mitigation. These options are reviewed on a case-by-case basis depending on the data gaps and conservation needs for the species.
To receive an ITP for federally listed species, an applicant must first develop and submit a Habitat Conservation Plan (HCP). An HCP is a mandatory prerequisite for receiving an ITP and must include certain components. First, it must describe the intended activity and quantify the impact of the project on listed species. It must also propose measures to minimize and mitigate for that impact. Finally, it must provide for long-term monitoring of the mitigation efforts to ensure that the measures outlined in the HCP are effective. No HCP is required for state-listed species ITPs.
- Protected Wildlife Permits (FWC) – webpage which provides examples and details for understanding if a permit is needed and the process for obtaining a protected wildlife permit.
- Federal Fish and Wildlife Permits (USFWS) – webpage outlining the various wildlife permits issued by the USFWS.
- Checklist to Apply for a State Listed Species Incidental Take Permit (FWC) - list provided below is intended to assist you in submitting a listed species incidental take permit application packet. Providing the information below will help the FWC evaluate the seven factors (see text below) in rule 68A-27.007 F.A.C. Your submittal of these documents does not restrict FWC staff from requiring additional information.
- Species Conservation Measures and Permitting Guidelines (FWC) – webpage which lists the species for which specific guidelines have been developed to provide clear information on what the requirements of rules in 68A-27.007, F.A.C as it relates to intentional and incidental take permitting
- Beach Driving HCP (Volusia County) – an example of a county-level habitat conservation plan to protect sea turtles, piping plovers, and other coastal wildlife, while allowing public driving on parts of our beaches.
- Coastal Armoring HCP (Indian River) – an example of a county-level habitat conservation plan for the protection of sea turtles on the eroding beaches, prepared in support of Indian River County’s application for an ITP for the take of sea turtles causally related to emergency shoreline protection activities.
- Scrub-jay HCP (Charlotte County) – an example of a county-level habitat conservation plan developed as an effort to reduce and streamline regulatory needs, and provide regulatory certainty to land owners in Charlotte County.