Service Develops New Strategy to Protect Imperiled Species in the Florida Keys
On April 30, 2010, the U.S. Fish and Wildlife Service (Service) finalized a new Biological Opinion (BO) on the impacts from the Federal Emergency Management Agency's (FEMA) flood insurance program on imperiled species in the Florida Keys. The Service completed the new BO with the best available science in fulfillment of a Court Order issued on February 26, 2009. The BO outlines an improved strategy for protecting threatened and endangered species and the habitats they need (referred to as Reasonable and Prudent Alternatives [RPAs]).
This new BO benefited from an in-depth review of future habitat impacts that was guided by real-world projections of development in the Florida Keys. The new information allowed the evaluation to focus on areas where impacts were most likely to occur and develop a conservation strategy for addressing them in full. In addition, the review incorporated the better understanding we have today about the condition of many species, and there are some success stories to report. For example, the Key deer population, once in dire condition, has significantly improved and benefited from conservation efforts at the local, State, and Federal levels.
Several components in the April 30, 2010, BO were further clarified and an amended BO was provided on December 14, 2010. The amended BO and a proposed settlement agreement with the Plaintiffs were also concurrently provided to the Court. On January 11, 2011, the Court determined that the amended BO complies with the original March 20, 2005, Court Order and the February 26, 2009, Court Order. The Court also ordered that the current injunction shall remain in effect until the Federal Defendants provide notice to the Court that the RPAs referenced in the amended BO and in the settlement agreement are in effect.
The amended BO identifies 11 actions to be implemented by FEMA, the Service, and participating NFIP communities and certified to the Court before the existing injunction will be lifted. The proposed timeline for the actions is 14 months from the date of the Court’s acceptance of the amended BO (January 11, 2011), resulting in a projected certification date on or before March 11, 2012.
Critical time sensitive actions are referenced in RPA 1, RPA 2, and RPA 5. The remaining RPAs, although as important, are primarily procedural and technical stipulations.
The April 30, 2010, BO and the December 14, 2010, amended BO are available on the Service’s website. Click here to search the biological opinion database.
For further information or if you have questions not answered
in these documents, please contact Allen Webb or Winston Hobgood.
Questions and Answers
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Q1: Why did the Service revise its biological opinion on the Federal Emergency Management Agency’s National Flood Insurance Program in the Florida Keys?
A1: The District Court in south Florida issued an Order on March 29, 2005, ruling the U.S. Fish and Wildlife Service (Service) and Federal Emergency Management Agency (otherwise known as FEMA) violated the Endangered Species Act and Administrative Procedure Act in their consideration of the National Flood Insurance Program’s activities in the Florida Keys. In particular, the Order agreed with the counts raised by the National Wildlife Federation, Florida Wildlife Federation, and Defenders of Wildlife, which have litigated NFIP’s need for consultation under the ESA since the early 1990s.
The environmental organizations requested the Court to: (1) prohibit FEMA from issuing any new flood insurance for new development in threatened or endangered species habitat; (2) remand the Biological Opinion (BO) finalized by the Service in 2003 for revision; and (3) order the Service to develop a new reasonable and prudent alternative, or RPA, to protect imperiled species.
On March 20, 2005, the Court agreed with the environmental organizations’ request and issued an Order requiring FEMA to stop providing flood insurance for new development in threatened and endangered species habitat and directing the Service to complete a new BO within 9 months (June 9, 2006). The deadline was later extended to August 9, 2006, and the BO was submitted on time.
A second challenge was filed and the Court, on February 26, 2009, directed the Service to submit a new BO by March 31, 2010. The deadline was later extended by 30 days and the BO was submitted on time.
This revised BO also addresses the Court’s March 2005 criticism of the 2003 RPA. The Court criticized the 2003 RPA for (1) relying on voluntary measures and (2) not protecting against habitat loss and fragmentation or otherwise accounting for the cumulative effects of the permitted projects. In this BO, we more clearly describe the steps that will be taken if the RPA is not followed, which includes new mechanisms for enforcement by FEMA, consistent with its regulations. Second, the revised RPA will result in a review process that will allow the Service to consider the cumulative impacts of a series of permit proposals at clear points in time, rather than on a piecemeal basis.
This revised BO also provides a complete review of the baseline conditions of having the 2003 RPA in effect and includes new habitat maps reflecting the best available scientific information. New maps were developed in cooperation with Monroe County and included Plaintiffs’ comments on habitat mapping parameters.
Q2: What did the biological opinion conclude, and how are these findings different from previous biological opinions?
A2: In general, the habitat loss and indirect effects identified in the revised BO are more realistic than the build-out scenario assumed in the 1997 and 2003. This BO’s methodology benefited from advances in geographical data and a detailed lot-by-lot review guided by limitations on development implemented at the local level. The new information allowed the evaluation to focus on areas where impacts were most likely. In addition, we have a better understanding of the condition of many species, including success stories such as the Key deer, whose population has improved and benefited from recovery efforts.
After this detailed review of the best available information, we concluded no jeopardy for four of the species with previous jeopardy conclusions, including the Key deer, Schaus swallowtail butterfly, silver rice rat, and Stock Island tree snail. We also found the action will not cause adverse modification of silver rice rat critical habitat, again changing the previous conclusions based upon the best available information. In addition, we concluded the action will result in jeopardy of four of the species that are critically endangered, reaffirming conclusions made previously. In particular, the Service found the action will jeopardize the Key Largo cotton mouse, Key Largo woodrat, Lower Keys marsh rabbit, and Key tree-cactus.
Q3: How will the species in jeopardy be protected by the new RPA?
A3: The Service and FEMA have worked closely with local governments since 1997 to implement the BO RPAs previously in place and are committed to implementing a streamlined technical review process that meets the Court’s mandate. Specifically,
we will provide technical assistance to our local government partners to help avoid and minimize impacts from development that may affect threatened and endangered species and their habitats. The Service bolstered the new RPA by clearly defining FEMA’s ability to ensure that NFIP participating governments are enforcing their permit processes under their flood damage prevention ordinances. In addition, the new RPA requires a more comprehensive review of the impacts of development on listed species when considering new building applications. For those development actions that will adversely impact listed species, we will work with landowners and local partners. We are and continue to meet with FEMA and local government officials to develop the project process in greater detail.
Q4: Does this mean the current injunction on Federal flood insurance will be lifted?
A4: Yes, but only after the Federal Defendants (FEMA and the Service) provide notice to the Court that the RPAs referenced in the amended BO and in the settlement agreement are in effect.
Q5: Is my property in potentially suitable habitat for threatened and endangered species?
A5: The Service has prepared, and can prepare at any point in time, a list of the properties in potentially suitable habitat. A cautionary note is necessary here, because a list of properties in potentially suitable habitat is only a list of properties at a particular date in time. Since real-estate tax identification number can be deleted or created by the County Tax Assessors Office to manage real-estate actions, the list of properties in potentially suitable habitat can change accordingly. The more important parameter is the species focus area maps. If your property is shown to be in the species focus area maps, then there could be suitable habitat for threatened and endangered species on your property. In the 2010 amended BO, using the best available information, the Service was able to more precisely determine which properties have potentially suitable habitat. As a result, the list of properties with potentially suitable habitat will be smaller than previously determined.
Q6: What effect does this have on my ability to develop my property?
A6: If your property is within the species focus area, the 2010 amended BO does not prohibit development. Local governments have the authority to issue building permits. The new RPA provides a project review process and that will help avoid and minimize impacts to imperiled species when necessary.
Q7: How can I find out more information about the revised biological opinion?
A7: For additional information, contact Allen Webb or Winston Hobgood at the Service’s South Florida Ecological Services Office.