Brevard Scrub Conservation and Development Plan

Brevard County Florida Brevard Scrub Conservation and Development Plan Workshop

Tuesday, February 28,1995 10:OO a.m.

Multi-purpose Room Third Floor - Building C Brevard County Government Center Table of Contents

Page # I Introduction - Agenda ...... 1 - Preface ...... 2 - Brevard County Commission ...... 3 - SCDP Citizen Steering Committee, consultants ...... 4 - Scientific Advisory Group, consultants ...... 5 I1 History of Brevard's Scrub Issue - Brevard's Scrub Issue and the SCDP ...... 6 Summary of Board Actions - SCDP Chronology of Events ...... 7 111 The Plan - The Planning Process ...... 8 - Citizen Steering Committee Operations ...... 9 SCDP Flow Chart IV Scientific Results - Florida Scrub Habitat ...... 10 - The Florida Scrub Jay ...... 11 - Scientific Advisory Group Procedures ...... 12 - Scrub Sanctuaries Alternatives ...... 13 \I Economic Analysis - Economic Analysis: scope of work ...... 14 VI Summary - Comparison of Future Scenarios ...... 15 - Key Elements of the SCDP ...... 16 VII Appendix - Common Questions - Scrub Species Included in the SCDP - U.S. Fish and Wildlife Service Letter - Questions from the Commission - Answers to Commission Questions - SCDP Brochure - Sample: Scrub Sanctuary Design Map

Agenda

1. Introduction (5 minutes) Presented by: Tami Townsend, SCDP staff coordinator - NRMD Natural Resources Management Division Board of Commissioners SCDP Citizen Steering Committee, facilitator and staff Scientific Advisory Group, biological and economic consultants 2. History of Brevard's Scrub Issue and the SCDP (5 minutes) Presented by: Lisa Barr, director - NRMD Original U.S. Fish and Wildlife Service notification Initial compliance plan Citizen's Ad-hoc Committee Board authorizations 3. The Planning Process (5 minutes) Presented by: Michael O'Connell, facilitator The Citizen Steering Committee: operation of committee and selection of interest group representatives Scientific Advisory Group Biological and economic consultants Public involvement 4. SCDP Results to Date (20 Minutes) A. The Scientific Process Presented by: Dr. Reed Bowman, Archbold Biological Station Dr. Hilary Swain, Florida Institute of Technology Data collection and analysis Reserve design alternatives B. The Economic Analysis Presented by: Dr. Hank: Fishkind, Fishkind and Associates Costs of implementing the SCDP vs. no plan Relative cost of the reserve designs alternatives Potential funding mechanisms Benefits of implementing the SCDP 5. Summary of Key Elements (5 minutes) Presented by: Michael O'Connell, facilitator 6. Questions and Comments Board of County Commissioners * General public Preface

The Brevard Scrub Conservation and Development Plan (SCDP) will resolve conflicts between conservation of endangered species and land development in Brevard County. The SCDP provides a long-term, comprehensive and voluntary alternative to the current method of regulation under the federal Endangered Species Act. Under the plan, land vital to the conservation of protected scrub species is identified for acquisition at fair market value. Remaining habitat is released for other uses. Brevard County Commission

Truman Scarborough, Jr. 400 South Street District 1 (R) Titusville, FL 32789

Randy O'Brien 2575 N. Courtenay Parkway 407-455-1 334 District 2 (R) Menitt Island, FL 32953'

Nancy Higgs 131 1 E. New Haven Avenue 407-952-6340 District 3 (D) Melbourne, FL 32901

Mark Cook 2725 St. Johns Street 407-633-2044 District 4 (R) Melbourne, FL 32940

Scott Ellis 1515 Sarno Road 407-253-661 1 District 5 (R) Building B Melbourne, FL 32935 SCDP Citizen Steering Committee

Bob Cochran, Jr. 242 5th Avenue 407-723-0406 Indialantic, FL 32903-0228

Bill Hall 2725 Malabar Road 407-727-7764 Malabar, FL 32950-4427

Commissioner Nancy Higgs 13 11 E. New Haven Ave. 407-633-2033 West Melbourne, FL 32901

Tim McWilliams 492 E. Eau Gallie Blvd. 407-777-4 11 1 Indian Harbour Beach, FL 32937

Kim Zarillo C/OBrevard County 407-633-201 6 Natural Resources Management Div.

Steve Tatoul C/OBrevard County 407-633-20 16 Natural Resources Management Div.

Tami Townsend Brevard County 407-633-20 16 (staff coordinator) Natural Resources Management Div. 2725 St. Johns Street Melbourne, FL 32940

Mike O'Connell The Nature Conservancy 407-253-0076 (facilitator) 6767 N. Wickham Rd. Ste. 4 10 Melbourne, FL 32940

Economic Consultants:

Steven MacDonald Fishkind & Associates 12424 Research Parkway Suite 275 Orlando, FL 32826 SCDP Scientific Advisory Group (SAG)

Dr. Richard Blaney Brevard Community College 407-269-746 1 7795 South US 1 Titusville, FL 32780

Dr. Reed Bowman Archbold Biological Station 813-465-2571 P. 0.Box 2057 Old State Road 8 (County Road 17) Lake Placid, FL 33852

Brad Stith 204 NW 2 1st Terrace 407-633-20 16 Gainesville, FL 32603

Dr. Richard Hilsenbeck 625 North Adams Street 904-222-0 199 Tallahassee, FL 3230 1

Brian Toland U.S. Fish & Wildlife Service 904-232-2580 6620 South Point Drive South Suite 1 10 Jacksonville, FL 322 16

Biological Consultants:

Dr. Hilary Swain Florida Institute of Technology 407-768-8000 x7238 150 West University Boulevard Melbourne, FL 3290 1-5988

David Breininger BIONETICS 407-853-328 1 Dr. Paul Schmalzer BIO-2 Cape Dispensary Building #4963 5 CCAFS Kennedy Space Center, FL 32899

Brevard's Scrub Issue Board directed a citizen committee comprised of landowners, developers and and the SCDP environmentalists, to examine a mitigation banking strategy for scrub. In April, the The conflict over conservation and Citizen's Ad-hoc Committee recommended development of scrub habitat in Brevard consideration of a Habitat Conservation Plan County began in June 1991. A letter from (HCP) under the Endangered Species Act the United States Fish and Wildlife Service rather than a mitigation banking approach. (USFWS) informed the Board of County Commissioners (the Board) of their potential Acting on direction from the Board, the liability under the Endangered Species Act Citizen's Ad-hoc Committee examined due to the County's issuance of development several alternatives, including small area permits in scrub habitat. Thirty-six other HCPs and short-term plans. In December Florida counties received the same letter. 1992, the committee recommended a long- term, county-wide HCP as the only In January 1992, the Board reviewed and reasonable alternative that would rejected a proposed compliance plan permanently resolve the scrub amending county land development conservation/development issue. The Board regulations in scrub habitat. Instead, the unanimously approved the recommendation.

Summary of Board Actions

August 20,1991 The Board unanimously authorized staff to create review procedures, draft maps of scrub habitat and scrub jay population, and work with the USFWS to develop a compliance plan. December 17,1991 The Board unanimously directed staff to conduct a public workshop in January 1992. The compliance plan and policies were reviewed and recommendations offered. January 21,1992 The Board did not adopt the compliance plan. It unanimously decided to appoint a citizen task force to examine a mitigation banking policy. March 17,1992 The Board directed legal staff to examine ways of preventing unauthorized scrub clearing. April 7,1992 The Board authorized the notification of county land clearing permit applicants of their responsibility to obtain federal permits before clearing land. The Board unanimously authorized the Citizen's Ad-hoc Committee to investigate and recommend procedures for developing an HCP. December 15,1992 The Board unanimously accepted the Citizen's Ad-hoc Committee recommendations for implementing the HCP process. SCDP Chronology of Events

Florida Scrub June: January: January: April: Jay listed as letter from USFWS Public workshop; Staff and facilitator Economic Consultant threatened notifying Brevard Staff presents begin public meetings contracted by USFWS and other counties compliance plan to identify steering of liability to Board, citizen task committee members June: force formed SAG analyzes August: February: biological data to NRMD initiates April: Scientific Advisory create reserve preliminary scrub task force Group begins reserve designs mapping project recommends HCP; design process and development of Board appoints September: interim compliance Citizen Ad-hoc April: SAG presents plan for scrub committee to study Citizen Steering Comm. reserve alternatives alternatives begins discussions to steering committee December: Board requests October: June: November: public workshop Congress appropriates Biological Consultant Preliminary draft on compliance first of three $100,000 contracted, compre- economic data plan grants to fund Brevard hensive scrub mapping presented to steering HCP process and scrub jay surveys committee; initiated consultant asked to December: revise analysis Board unanimously July - December: authorizes county HCP; Steering Committee April - December: process for selecting working on plan; SAG Steering committee steering committee; developing biological creating SCDP draft appoints facilitator and elements of plan plan document Scientific Advisory Group

The Planning Process Biological and Economic Consultants Using federal funds appropriated for the SCDP planning process, the Committee In December 1992, the Board of County contracted with biological and economic Commissioners (the Board) authorized a consultants to conduct analyses important to planning process leading to the creation of development of the plan. The consultants the Scrub Conservation and Development were hired using Brevard County's standard Plan. The planning process was endorsed by Request For Proposal and contracting seven participating cities. processes. The Steering Committee The planning process is guided by a Citizen Steering Committee (the Committee) comprised of six broad interest groups. Interests represented include the business community, environmental community, scrub landowners, general property owners, Brevard County and participating cities. Using a procedure endorsed by the Board, each group selected a volunteer represen- tative to serve on the committee. County staff assisted the business, environmental and landowning groups by identifying potential representatives through a series of public hearings.

Staff and Facilitator Brevard County's Natural Resources Management Division provides staff support to the Committee and generates minutes of the meetings. The Nature Conservancy serves in the role of facilitator for the planning process. The Conservancy is not paid for its participation in the planning process.

Scientific Advisory Group The biological elements of the SCDP were developed by a volunteer Scientific Advisory Group (SAG) appointed by the Board. SAG members are local and nationally-recognized experts in scrub ecology, scrub jay biology, scrub botany and population biology. The SAG is described in more detail in the Scientific Results section. Citizen Steering Committee Operations

Since April 1993, the Citizen Steering Committee has met twice monthly to compile the SCDP document. The committee initially adopted a series of COUNTY operating rules. The most significant being: CITIES all committee decisions are reached by DNELOPMEIvT unanimous consent, all interest groups must 1 STEERING COM.MI7TEE ENVIRONMENT agree on every plan provision, and the CONSULTANT OWNERS WITH SCRUB committee conducts its business in Oi'JrQERS \V/O scRiJ3 advertised public meetings subject to the Sunshine Law governing public boards.

Each meeting , the role of committee chair rotates between interest group represen- tatives. The committee accepts written FACILITATOR comment at any time and encourages oral & public comment at alternate meetings.

The committee unanimously agrees on the value of public information about the SCDP A newsletter and video slide show were produced to highlight the planning process. Staff from the County's Natural Resources Management Division maintain a public file of all documents relating to the Citizen Steering Committee and the HCP process. Scrub Conservation and Development Plan Process

t f f PDLIC HEARINGS Scientific Recommendation Citizen Steering Committee North, Central and to Steering Committee Completes Draft Plan South Brevard

I

County Citizen Advisory Groups

CRG

f Plan Submitted to

and Participating City Councils

Florida Scrub Habitat to replenish underground aquifers, Florida's main source of drinking water.

Scrub, Florida's oldest natural community, is Healthy Scrub Habitat Needs Fire vanishing at an alarming rate. Patchy Like many of Florida's natural communities, vegetation, elevated and well-drained sandy scrub needs occasional burning to remain soil make it ideally suited for agriculture and healthy. Historically, lightning fires development. Almost 90 percent of central periodically swept through the scrub, Florida's original scrub habitat has thinning the undergrowth and removing disappeared. accumulated brush and leaves.

In Brevard County, only about 30 percent Today, controlled burning is used to replace of the original scrub community is left. the natural fire cycle. Left for an extended This rare desert-like landscape occurs in two time without fire, the character of scrub distinct areas of Florida. Coastal scrub, such changes dramatically and many of the native as that found in Brevard, remains in some plants and animals eventually disappear. The undeveloped pockets along the Atlantic and threat of wildfire is much greater in over- Gulf coasts. What remains of interior scrub grown scrub than in well-managed areas that is found along central Florida's Lake Wales experience controlled burning. Fire has been Ridge, the peninsula's ancient shoreline. suppressed in Brevard County for more than 40 years. Unusual Plants and Animals The rugged ecosystem harbors some of The Plan Florida's most beautiful and unusual plants Under the SCDP, prescribed fire and other and animals. There are several variations of land management techniques will be applied scrub habitat in Brevard County, but all are to improve the quality of existing scrub generally characterized by longleaf pine, habitat. Land management increases the sand pine, shbby evergreen oaks, Florida survival opportunity for scrub species, rosemary, lichen ground cover and delicate reduces the hazards of uncontrolled wildfire wildflowers. Thirty-seven percent of and lessens the threat of flooding by keeping Atlantic coastal scrub plants are found water recharge areas open and functioning. nowhere else on Earth.

Many scrub inhabitants, such as the Florida scrub jay, gopher tortoise and scrub lizard, rely on the harsh habitat for their continued survival. Approximately 40 plant and 50 animal species live only in scrub. Eighteen Brevard scrub species are state or federally listed as rare, threatened or endangered.

Water Recharge Scrub habitat is also critical for the recharge of Florida's water supply. Rain water quickly passes through the sandy soil The Florida Scrub Jay ement, has led to a federally threatened classification for the scrub jay. The Florida scrub jay (Aphelocoma Brevard County's scrub habitat contains coerulescens coerulescens) is a native of other species listed by the U.S. Fish and Florida's scrub habitat and cannot survive in Wildlife Service as endangered, threatened any other natural community. The Florida or being reviewed for listing under the scrub jay is recognized as a distinct Federal Endangered Species Act (ESA). subspecies of the scrub jay (Aphelocoma coerulescens) because of its unique physical The ESA applies to all lands in which and behavioral characteristics. protected species and their habitats are found. Most of Brevard County's scrub Florida scrub jays live in groups of two to contains protected species. As a result, many 12 birds. A family consists of a breeding landowners and developers are directly male and female and up to ten non-breeding affected by the ESA. adults and juveniles. Young jays remain in their parents' territory for one to four years. The Plan Families occupy and defend permanent Implementing the SCDP will increase the territories, ranging from five to 50 acres. probability of long-term survival of scrub Non-breeding adults help to raise successive jays in their natural habitat. Because the plan generations by feeding nestlings and addresses the entire natural community, all fledglings, defending against predators and 18 listed and candidate scrub species will be guarding an average size territory of 25 protected, thereby avoiding future ESA acres. When the scrub habitat is in poor conflicts. condition, the birds must expand their territories to meet food, shelter and nesting needs.

Scrub jays are sociable birds and soon lose their fear of humans. Wild scrub jays are sometimes tamed when hand fed acorns. Because of their comical and friendly nature, scrub jays are the most recognized animal associated with scrub. A common miscon- ception is that birds remaining in their territory after it has been developed continue to thrive. While the adult jays may stay in the area, they no longer breed and eventually die.

Threatened Species A 1992 study found that Florida scrub jays have declined by as much as 90 percent; 50 percent of that loss occurred within the last ten years. This dramatic loss, a direct result of habitat destruction and lack of manag- Scientific Advisory Reserves that are connected are preferable to ones that are far apart. Group Procedures The existence of other species of concern A successful Habitat Conservation Plans is is preferable. based on reliable and accurate scientific information. Recognizing this important Incompatible adjacent habitats should be fact, the Brevard County Board of Comm- minimized. issioners authorized the formation of a Scientific Advisory Group (SAG) to provide No existing sub-population of scrub jays the Citizen Steering Committee with the containing more than 100 pairs can fall scientific and biological elements necessary below 100 pairs. to complete the plan. No existing sub-population containing In September 1994, the SAG reported its from 10 to 100 pairs should be allowed to findings to the Citizen Steering Committee fall below two-thirds of its present size. at a public hearing. The group defined four alternative Scrub Sanctuary reserve designs Scrub Categories (see page 13). Each alternative offers an Results of the biological analysis show that assurance of long-term survival for scrub patches typically fall into three imperiled scrub species. categories:

The SAG outlined the data and information 1. Some scrub patches are so important they needed to design a scientifically supportable are included in all four sanctuary designs. plan. Under SAG guidance, the biological The habitat meets scrub jay population consultants executed scientific studies and requirements, is connected to other scrub gathered data. parcels and is easy to restore.

Applied Scientific Principles 2. Many patches are not included in any of The following widely accepted scientific the sanctuary alternatives, even when principles were utilized to design the four occupied by scrub jays. They may be small reserve design alternatives and the quadrant fkagrnented pieces, not connected to other maps. The SAG applied these criteria to scrub parcels or in such poor condition they more than 1,000 patches of Brevard County could not be restored to function. No habitat scrub. patches less than 2 acres were included in the Scrub Sanctuary system. Bigger reserves are better than smaller ones. 3. Other patches don't easily fall into the first two groups. To arrive at the sanctuary Different land use types serve as different alternatives, parcels from the third category barriers to scrub jay movement. were either excluded or added back into the first group to improve aspects of included Reserves that are well distributed geo- scrub habitat. graphically protect the species better. Scrub Sanctuary are less costly to restore than others. While restoration is expensive, it is necessary for Alternatives the success of each of the scrub sanctuary alternatives. The Scientific Advisory Group developed four alternative scrub sanctuary designs, Option 4 -- Incorporates aspects of the other defining areas of scrub habitat for potential three and maximizes the probability of purchase under the plan. SCDP success. The comprehensive design builds on the acquisition of connected scrub Mile some parcels of land incorporated in parcels, restoration of. high quality habitat the sanctuary alternative,^ are different, all and cost control. This alternative is not meet established biological requirements, derived by adding the acreage of the other conserve Florida scrub jays and free three options. landowners from liability under the Endangered Species Act. Scrub habitat not Mitigation included in the plan will be released for The U.S. Fish and Wildlife Service currently development or other uses. restricts all development of scrub habitat. To develop in scrub, landowners and developers The Citizen Steering Committee will must mitigate for habitat loss by purchasing consider input from landowners, developers, two to four scrub acres for every one acre citizens and local governments before developed. The designation of parcels as selecting one of the following alternatives. potential sanctuaries by the SCDP does not change their regulatory status; they Option 1 -- Meets minimum scrub jay are already restricted. population requirements and ensures that scrub habitat remains connected. Therefore, The Plan when unforeseen events eliminate habitat or There are approximately 10,000 acres of small groups of scrub jays, it is easier for the scrub habitat included in the proposed remaining birds to find other habitat. It also scrub sanctuary alternatives (nearly 4,000 maximizes the scrub jay's ability to move landowners). The roughly 7,000 land- around while poor quality habitat is being owners (65 percent) with scrub habitat restored. outside the scrub sanctuary reserve alternatives will be released from federal Option 2 -- Maximizes the quality of scrub regulation under the plan. habitat in existing parcels. This design guarantees the highest quality scrub habitat. Under the plan, landowners with scrub Scrub jays breed more successfully in habitat within the boundaries of the scrub quality scrub. It also ensures scrub jay sanctuaries will receive offers to purchase reproductive success during times when their land at fair market value. Overall, scrub lower quality parcels are being restored. landowners will either be compensated for property or released from federal regulation. Option 3 -- Minimizes the cost of habitat restoration by selecting scrub sites based Participation in the plan is voluntary and partly on the ease of restoration. Depending landowners may select to permit indiv- on existing conditions, some scrub parcels idually at a higher cost.

Economic Analysis acquisition, long-term restoration and maintenance and administration of the plan. On behalf of the Citizen Steering Comm- Secondly, the phase I1 report identifies ittee (the Committee), Brevard County potential funding alternatives available to contracted with Fishkind & Associates to meet the projected cost and the feasibility of develop an economic impact analysis for the each. Funding alternatives include state SCDP. The study is ongoing and the CARL funds, local public sources, and Committee continues to work with the private mitigation funding, among others. consultant to finalize assumptions and produce values that accurately reflect Phase Ill economic reality in Brevard County. When completed, this phase will be a land development and valuation model based on The economic impact analysis is divided an inventory of scrub lands that projects the into three phases. The first phase compares costs and benefits over the proposed 30-year the cost of implementing a county-wide period of the SCDP. The study includes SCDP with the cost of doing nothing. Initial compliance costs with and without the plan, results indicate the county-wide plan costs projected jobs and population growth, less than individual permitting. The second effects on real estate values, property tax and phase places a value on the Scrub Sanctuary sales tax revenues. alternatives being considered by the Committee and identifies potential funding sources. The final phase is an economic impact analysis of the Scrub Sanctuary alternatives, including costs and the value of the benefits.

Phase 1 Using existing data including an inventory of scrub land identified under the SCDP, the consultant is finalizing an economic report of the costs of permitting development on an individual basis in the absence of the SCDP. The cost of environmental permitting is broken into several categories, including biological assessments, mitigation, legal, time cost and permit application cost. The study then compares this cost to the relative cost of a county-wide plan to evaluate the relative difference between the two alternatives.

Phase 11 In this phase, the consultant is creating a report detailing the cost of the various plan alternatives. This cost includes land

A Comparison of Future Scenarios

Without SCDP With SCDP

A. Regulatory requirements uncertain A. Certainty for all participants

B. Conflicts escalate in future B. Future conflicts avoided

C. Landowners must comply with ESA and C. One permit covers all landowners; seek individual permits participation is voluntary

D. Development mitigated at 4: 1 ratio D. 55-60 percent of scrub protected

E. Roughly 13,000 acres of scrub mitigated E. 10,000 acres proposed in biologically in biologically insecure pattern secure network of Scrub Sanctuaries

F. Scrub habitat and Florida scrub jays F. Scrub habitat well managed, Florida continue to decline scrub jay survival ensured

G. Landowners pay entire cost of G. Costs and benefits equitably distributed compliance

H. Mitigation costly and inefficient H. Scrub Sanctuaries purchased efficiently at less overall cost to economy

I. Mitigation unequally distributed in I. Protected lands equitably distributed county

J. Mitigation lands not open to public J. SCDP sanctuaries open to public

K. Current public land not permitted to K. Current public land counts against offset future development future development

L. Inadequate restoration and management; L. Scrub Sanctuaries restored and managed responsibility of individual permitees to offset losses elsewhere

M. New ESA species listings cause further M. New ESA species listing covered by conflict plan Key Elements of the Scrub Consewation and Development Plan

History of Scrub Issue: County liable under Endangered Species Act Initial compliance plan not endorsed by the Board of County Commissioners Task force examined potential responses to regulation Citizen's Ad-hoc Committee recommended county-wide HCP Board unanimously authorized HCP process as the preferred alternative to resolve the scrub conservation/development issue

The Planning Process: All affected interests represented on the Citizen Steering Committee (the Committee) Process paid for by $300,000/3-year federal grant Committee, SAG, and facilitator all volunteer Interest groups selected their own representatives to serve on the Committee All planning decisions by unanimous consent Public input maximized

Scientific Results: Approximately 30 percent of Brevard's original scrub habitat remains 55-60 percent of existing scrub proposed for protection/acquisition Four alternative biological plans identified -- the Committee will choose one Implementing the SCDP ensures survival of scrub and Florida scrub jays Including 17 other species requires no additional land and avoids future conflicts Habitat parcels of less than 2 acres are released from the reserve designs Approximately 11,000 landowners in scrub, 65 percent will be released under the SCDP Two populations of scrub jays not protected because of connection to federal properties

Economic Analysis: Scrub landowners will be either compensated or released from federal regulation Private sector costs reduced through efficiency and sharing Other benefits of SCDP include: streamlined permitting equitable costs and benefits certainty for landowners, conservationists, business and government aquifer recharge, water quality and flood control wildfire control open space and recreation 15 percent of scrub habitat already in public ownership Initial "bank" of released lands based on existing public land SCDP participation is voluntary and landowners may pursue individual federal permits

SCDP Questions & Answers

Q: What is the SCDP? A: The SCDP is a Habitat Conservation Plan (HCP). HCPs are designed to address conflicts between economic activity and compliance with the Endangered Species Act. It is a complex series of negotiations among diverse interests and a consensus building planning process; all interested parties must support the solution.

Q: Why does Brevard County need an SCDP? A: When the U.S. Fish and Wildlife Service informed Brevard County that further development of scrub habitat would violate the Endangered Species Act, tensions between private land development and conservation of rare scrub species reached a crisis point. Survival of the county's rare and endangered species is not assured and the economic costs to private business have become unacceptable.

Q: Will the SCDP solve Brevard's development and conservation conflict? A: Yes! The plan will ensure the survival of the Florida scrub while reducing the cost and streamlining the environmental permitting process for landowners and developers. Under the plan, costs will be more equitable than the current situation.

Q: Are other counties doing this? A: Brevard County is the first Florida county to attempt a scrub conservation and development plan. Since Brevard began the SCDP process, both Indian River and Charlotte Counties have begun their own HCPs. Highlands County is currently considering beginning an HCP process. Since 1982 when Habitat Conservation Plans were first authorized under the Endangered Species Act, nearly 20 have been successfully implemented to preserve dozens of species around the country. More than 100 plans are currently being developed throughout the United States.

Q: How long will the SCDP take to complete? A: Most county-wide conservation and development plans take approximately three years to develop. It takes several years to gather the scientific and economic information, draft the plan and go through the approval process. Brevard County began the SCDP process in 1992.

Q: Who pays for the plan? A: The federal government provided a $300,000, 13-year grant to Brevard County to fund the planning process. The cost of implementing the plan will be equitably shared among the state, county and landowners. Preliminary economic information indicates that the cost of implementing the plan is approximately 50 percent less than complying with the Endangered Species Act on an individual project basis. Q: What are the SCDP recommendations? A: The goal of the Scrub Conservation and Development Plan is to identify and protect habitat that is critical for the survival of Florida scrub jays and other species. The SCDP Scientific Advisory Group recommends that Scrub Sanctuaries be designated to protect critical habitat in Brevard County. The remaining land will be released for other uses.

Q: Why does the SCDP designate protected land? A: Since Brevard County does not have a comprehensive strategy for conservation and development of scrub habitat, the U.S. Fish and Wildlife Service must regulate every piece of scrub, whether it is critical or not. When scrub is proposed for development, the landowner or developer must purchase two to four acres elsewhere for every one acre developed. This is a costly process, that could result in the protection of fragmented areas of limited environmental significance. After careful examination, the SCDP Steering Committee determined that protecting habitat vital for the scrub jay throughout the county and releasing the remainder is more beneficial. This solution is more cost- effective and better for scrub jays and other rare species.

Q: How will the Scrub Sanctuaries be protected? A: The Steering Committee continues to identify ways to fund public acquisition of the areas identified as Sanctuaries. They have examined a number of alternatives and intend to spread the cost of protection broadly, reducing the cost of the plan to individuals. Since the benefits of the Scrub Conservation and Development Plan will be shared, the Steering Committee intends that funding be shared among private landowners, developers and the general public.

Q: What if my land is designated as a Scrub Sanctuary under the plan? A: Owners of land designated as a Sanctuary under the SCDP can expect to receive an offer to purchase their land at fair market value. The Steering Committee is investigating ways to reduce the cost of holding the land until it is purchased by the SCDP, including temporary conservation easements and preferential property tax assessments.

Q: What happens if I own scrub habitat not chosen as a Scrub Sanctuary? A: Property that is not within the defined boundaries of the Scrub Sanctuary network will be released for development. It will be released according to a fixed ratio as other land is protected. Under the plan, owners of released scrub will simply comply with county plan provisions and then develop or use their property.

Q: What if I don't want to participate in the SCDP? A: Participation in the SCDP is voluntary. The plan is simply a cost-effective, fast and more efficient way to conduct land use in scrub habitat, while better protecting the scrub jay. Similar conservation and development plans have seen permitting costs drop by more than 85% for participants. Scrub owners who choose not to participate in the plan must still comply with the Endangered Species Act or face prosecution by the U.S. Fish and Wildlife Service. Landowners who decide not to take advantage of the county-wide permit provided by the SCDP must seek their own permits. They must write individual compliance plans and bear the entire cost of carrying them out.

Q: Isn't this a lot of effort and cost to save the scrub jay? A: The Scrub Conservation and Development Plan does much more than protect the scrub jay. The costs of executing the plan are less than the current system and will be spread more equitably. Among the plan's benefits are:

Streamlining the regulatory process so that land use costs less. The plan provides one permit for the entire county so that individuals no longer must go to the Fish and Wildlife Service to get permission to develop their land.

Guaranteeing the conflict over development and protection of scrub will be permanently resolved. If other scrub species become protected in the future, Brevard County will have already avoided potential problems.

Spreading the cost of environmental protection among all beneficiaries. Landowners, developers, cities, counties and citizens all contribute to the solution.

Providing benefits in addition to species protection. The sandy soils of scrub play a part in controlling storm water runoff, helping groundwater recharge and maintaining water quality in the Indian River Lagoon. Well managed Scrub Sanctuaries will reduce the chance of uncontrolled fire and also provide recreational opportunities for Brevard County residents. LIST OF SPECIES AND THEIR STATUS THAT ARE INCLUDED IN THE BmVARD COUNTY SCRUB HABITAT CONSERVATION PLAN

Common name Scientific name USFWS GFC

E. Indigo Snake Drymarchon corazs couperi T T Florida Scrub Jay Aphelocoma coerulescens T T Florida Scrub Lizard Sceloporus woodz C2 Florida Mouse Podomys floridanus C2 SSC Florida Pine Snake Pztuophzs mel. mugitus C2 SSC Florida Gopher Frog Rana areolata aesopus C2 SSC Florida Crown Snake Tantilla relzcta nezllj C2 Coastal Dunes Crown Snake Tantilla relzcta pamlzca C2 Gopher Tortoise Gopherus polyphemus C2 SSC

Lg. Flowered Rosemary Conradzna grandflora C2 Dicerandra Dzcerandra sp. C2? Carter's Mustard Warea carten E Nodding Pinweed Lechea cemua C2 Pine Pinweed Lechea divaricata C2 Wild Coco Pteroglossaspis ecristata C2 Prickly Apple Cereus gracilzs C2 Sand-Dune Spurge Chamaesyce cumulicola C2 Coastal Vervain Glandulana maritima C2 Florida Lantana Lantana depressa C2 Devil's Necklace Tephrosia angustissima C2 Chaffseed Schwalbea americana E I TAKE- u PfUM IH ,- United States Department of the Interior -AMERKA- - FISH AND WILDLIFE SERVICE pI 3 100 University Blvd. South Suite 120 Jacksonville, Florida 322 16 June 13, 1991

Sue Schmitt, Chairperson Brevard County Board of County Commissioners 2725 St. Johns ~treer Melbourne, Florida 32940

Brevard County contains large areas of habitat known as "scrub," which is defined as a sandy area which supports a dense, but often patchy, layer of woody shrubs, with little or no grassy groundcover. Typical plants which grow here include sand live oak, myrtle oak, inopine oak, and Chapman oak, along with saw palmetto, scrub palmetto, scattered sand pine, and rosemary. This type of habitat may be occupied by Florida scrub jays, which are federally listed as a threatened species.

The Florida scrub jay is provided protection under the Endangered Species Act of 1973 (Act), as amended (16 U,S.C 1531-1543), and by regulations promulgated thereunder (50 CFR Part 17). Section 9 of this federal statute and the implementing regulations prohibit the "take" of any endangered or threatened species. Take is defined to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Harm and harass are further defined in the Code of FederaI Regulations; harass is defined as an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Harm is further defined as an act which actually kills or injures wildlife. Therefore, any activity or omissiont including disruption or modification of habitat occupied by scrub jays, which significantly alters the behavior of the jays or creates the Iikelihood of injury or death to the birds, may constitute a violation of Section 9 of the Act.

As a governmental entity which issues permits allowing private landowners to develop their property, you are responsible for ensuring that activities authorized by the county will not be harmful to the scrub jays or any other listed species. The prohibitions against take appIy to persons, and in 1988 the Act was amended to broaden the meaning of person to include ",.. any state, n~unicipality,or political subdivision of the state." Although this may appear to be a burden, there is a procedure to resolve confljcts. Under the Endangered Species Act, there are two ways to legally "take" a threatened or endangered species by private landowners who wish to develop land containing federally-protected species. The hrst is through Section 7 of the Act, which would be used if any federal permit, authorization, or funding was received to develop the property. h some cases, this involves a pennit for wetland fill by the US. Army Corps of Engineers; however, there are many other federal permits that may have the same requirements.

The second alternative is described in Section 10(a) of the Act. In this instance, a permit authorizing incidental take can be issued by the Service provided the applicant institutes appropriate conservation measures for habitat maintenance, enhancement, and protection, coincident with the proposed activity. The conservation measures are outlined in a Habitat Conservation Plan (HCP), a mandatory mmponcni of any Section 10(a) pennit for taking. An HCP must show that 1) the taking is incidental, 2) impacts to the species will be held to a minimum and unavoidable impacts mitigated, 3) there must be adequate funding for the plan, 4) the taking will not jeopardize the continued existence of the species, and 5) other site specific needs that may develop on a case by case basis.

Our office is interested in working with the counties to develop HCP's for the Florida scrub jay. In the event you receive an application for development within scrub habitat, we suggest you contact this office for further information on how you or the applicant can obtain a permit to authorize "take" of scrub jays, or how you may begin the HCP process. If you have any questions, please feel free to call me or Dawn Zattau of this office for further information. You can reach us at 904-791-2580. Thank you for your interest in endangered species.

SincereIy yours,

Field supervisor FISH AN11 i\?I,ULIFE SEK\?CE 6620 Southpol~ltDtiie, South Suite 310 Jacl;soli\ille, Floricla 32216-0912

Tarni Townsend Brevard County Natural Resources Management 2725 St. Johns Street Building B Melbourne, FL 32940

Dear Ms. Townsend:

This is in follow-up to a recent telephone conversation you had with Dawn Zattau, of my staff. Enclosed, please find a table containing the names of all counties receiving scrub jay "warning" letters from this office in 1991. In addition to the counties, in the cases where we had information regarding municipalities with potential scrub jay problems, these were separately notified, about 21 in all.

As of this date, we have received a commitment from Indian River County that they will proceed with a county-wide habitat conservation plan (HCP) that will include the city of Sebastian. Other counties in the early stages of HCPs include Charlotte and Highlands. With the addition of Highlands, we expect that Polk county will shortly follow, especially since they recently passed a bond referendum for purchase of land for preservation. In Palm Beach County, the city of Jupiter has expressed an interest in acting as a catalyst to spur development of a regional plan in the northern part of the county, with responsibilities shared between the municipalities there.

It is of no surprise to us that Brevard County should be leading the state in its completion of an HCP. The growth rate in your county is much greater than any of the other counties still containing large numbers of scrub jays. With increased growth and comparatively high density of scrub jays, the conflicts between the Endangered Species Act Section 9 prohibitions and land use are bound to be higher. A county-wide HCP is the ideal solution to solving these conflicts.

Regarding scrub jay activities on federal lands, a Memorandum of Agreement is being written for federal agencies in Brevard County. The Merritt Island National Wildlife Rehge will provide technical assistance and manpower to other federal agencies for prescribed burns. A hydro-axe is currently on order to assist in mechanical treatment of some of the more overgrown scrub prior to burning. An ad-hoc committee is currently evaluating the best means of ecosystem management for the federal lands in the county. At the Ocala National Forest, a banding study is currently underway so that more can be learned about the population dynamics of the scrub jays living there. A revised forest management plan is expected very soon, which will include measures specifically for increasing scrub jay populations onsite.

If you have any questions regarding any of this information, please contact Dawn Zattau. The number is 904-232-2580.

Sincerely yours,

Michael M. Bentzien Assistant Field Supervisor Counties receiving letters fiom this office in June 1991 regarding scrub jay problems. Included is a scrub jay population estimate as of 1993.

Clay 0 Collier 19

Glades 102 Hardee 8

(1 Okeechobee 12 II SCRUB JAY POPULATION

Orange 8 Osceola 26 Palm Beach 40 Pasco 24 Polk 202 Putnam lo* St. Johns 0 St. Lucie 30 Sarasota 145 Seminole 12 Sumter 17 Taylor 0 Volusia 132* - * These counties contain populations on federal property; numbers given are unconfirmed estimates. BREVARD COUNTY INTER-o FFICE BCLRD OF COUNTY COMM~SSIONEFS MEMORANDUM

TO: Katherine Harasz, Assistant County Attorney Lisa Barr, Director Natural Resources

FROM : Scott Ellis, Commissioner District V SUBJECT: Brevard County Liability for Scrub Clearing

DATE : February 3, 1995

I have received Ms. Haraszrs memorandums of 24 January 1995 concerning the lan& clearing and landscaping ordinances and the Catron County case. I would like to talk about these topics at the planned Scrub Jay workshop for February 28 and require some additional information by February 21 for the workshop, as follows:

1. If the Catron County, New Mexico, case does not apply because the CSF&WS has not designated a critical habitat in Brevard County, how can Brevard County (or any landowner) be responsible for violations of the Endangered Species Act? Can there be a violation without a designation of critical habitat? Under what authority did USF&WS send us the letter dated 13 June 1991, by Mr. Wesley, spezking of fines for the clearing or^ habitat when no designation of critical habitat had been accomplished?

2. Whsn must the USF&WS designate the critical habitat, and at that time, must the USF&WS have complied with the provisions of the National Environmental Policy Act (NEPA)? This would include the Enviromental Assessment, the Environmental Impact Statement, and a detersination of a Finding of No Significant Impact (if applicable) . 3. Nothing seems to absolve the County of some liability with the USF&WS. The final paragraph of the meno of January 24 states "there is no clear line which would indicate -when county actions will be considered an unlawful taking under the Endangered Species Actn. This being the case, it appears to me that the County can further absolve itself of liability by doing less, in essence not taking actions. This is why I still believe that the land clearing and landscaping ordinances should be repealed and all potential ovners of scrub should be notified of GSF&WS requirements and penalties. This notification by mail with a letter similar to the Building Department handout is needed before people even begin to plan to build on their lots. This notification is also necessary for people who intend to buy lots which may have additional unforeseen mitigation burdens. 4. When may owners of scrub, not necessary for an adopted Habitat Conservation Plan (HCP), be allowed to clear their property? Since the County can withdraw from the HCP at any time, my belief is that scrub will not be released until all scrub identified in the HCP as being necessary is purchased or 'in the bankf. The release of scrub prior to the acquisition of the plan areas could lead to clearing, and how will this clearing be resolved if the plan cannot be fully implemented, or maintained, for any of the following reasons? 4.a. The County fails to continue funding of land acquisition. The County in the future initiates a sell off of acquired parcels to private owners. 4.b. Owners of identified parcels refuse to sell. Will the County be able to use the right of eminent domain to complete the acquisition process? 4 .c. The owner of scrub in an HCP required area proceeds to clear his scrub with an individual HCP. What is the effect of removal of required property from the HCP designated core areas? 4.d. Legal costs for condemnation exceed the bond issue dollars available for acquisition of the land.

5. Given the above in (4), how can all of the lands be acquired in an orderly manner for the HCP even if full funding is available? The HCP will identify thousands of parcels, many of which have been sold around the world in small lots. Condemnation may become necessary due to the inability to even find the owners. This gets back to question (3), i.e., will the owners of parcels not in the HCP required areas be able to clear their land before all identified parcels are acquired? If not, what are we gaining from the HCP?

6. Is the HCP being used to designate the critical habitat for the USF&WS and provide information for NEPA compliance?

7. Why are Federal lands, the Space Center in particular, not included in the HCP? Mr. Kerr told me at the meeting where the HCP process was started that these lands would be included. 8. What was the extent of our fine on Grissom Road due to Section 7 of the ESA? This issue involved an Army Corps of Engineers permit for wetlands which had expired. I believe that at the renewal of the permit the scrub jay issued surfaced (not present during original permitting) and fines and mitigation requirements followed.

9. What empowers USF&WS to levy fines when there has been no designation of critical habitat?

10. The USF&WS levies fines, or threatens to levy fines, for the clearing of scrub. Is this not a I1de factoI1 designation of critical habitat? If so, does this mean that USF&WS must comply with NEPA, regardless of whether the species is listed as either threatened or endangered?

11. will a representative of the United States Fish & wildlife Service will be present to answer questions at our workshop? Thank you for your assistance in addressing these matters prior to our workshop. cc: Ms. Kim Zarillo Mr. Tim McWilliams Mr. Ed Clark Mr. George Draper Mr. Mike Abels, City of Palm Bay Mr. Henry Hill, City of Melbourne Board of County Commissioners

Enclosures: Ms. Harasz memorandums (24 January 1995) Catron County Court Case information Warning to Brevard County from USF&WS (13 June 1991) BREVARD COUNTY INTER-OFFICE BOARD OF COUNTY COMMISSIONERS MEMORANDUM

To: Scott Ellis, Commissioner District V n

Through. Steve Peffer, Assistant County ,Wanager Lisa Barr, Director, 5atural Resources Management ~ivision* sl;! From; Tami Townsend, Environmental Specialist, ~~~

Subje~: Response to Commissioner Eilis's memo dated 2-3-95

Date: February IS, 1995

1 have rz\iiswed the list of questiolls raised by Commissioner Ellis in his memo dated February- 3, 1995, regarding the Scrub Conscnarion and Development Plan (SCDP) Btlo.t*, I have enclosed my comaisregarding questions 3, 5, and 7

Questiorr % - Regarding Land Clearing:

-4ccordine- to the draft SCDP document, owners of scrub habirat outside of the proposed rcsene designs *ill be allowed to clear their property according ro a takdrelease rario Lndci &e cunenr proposed ratio, one acre of habitat will be released for every two occupied acres or rhree resorable acres prorecred in the reserve sysrem. The inirial '%&' MU consis of land currcnrfy publicly owned in the resme areas This is more than 2,000 acres, rnsming that upon approval of the SCDP by the U 5 Fish and Wildlife Service (USFU'S) a m,inimurn of 1,000 acres will be released for development Gwen the planned atquisiGon schedule and the hisraec absorption rare by develapmenf, the amount baked should remain ahead of the need.

Once the plan is adopted, should the Counry later decide to withdraw &om the SCDP, or fbnding rums out to be inadqute, iand already cleared will haye been satisfactorily '.rniu,oated" or resolved through rhis more economical and biolo$cd banking strateg. If the pian is not cornplerely implemenred, the remaining dtjgar7d hds will be in the same position they ars in currently The unmitigated lands =ill require an individual penair from ESFWS KO develop within scrub habitat. Question %.b.- Regarding Eminent Domain:

I will def?r the question as to whether the Counv has the legal right to pursue eminent domain as a means to complete t$e acquisition process to die County Atrorney's Office However, it should be noted that the SCDP Steering Cornmi~tee'sdesire is to avoid eminent domain procedures. The Steering Cornminee has minimized the necessi~of eminent domain proposing ro compensate willing selters at fair market value for their propen): This Plan simply provides a more cost-effecrivr and biolo,oioally viable rnahod of permining than exists currently. Eurtherrnore, participarion is voluntary

Question +-c.- Regarding Clearing Scrub Habitat With An Individual HCP Permit.

h land owner may seek a separate perrnir and absorb the entire cosr of an incidental take permir under 16 USC. section 1539(a), wen if rhat land is in a designated reserve acquisition area. USFWS has the authority to grant such a permit. Some individual permits have been issued inside other re~ionalHCPs, and others have been denied. If the USFWS issues pdts for clearing in the Brcvard Counry SCDP desipated reserve lands, the proposed SCDP O~ersightC~Wnee and Technical Review Panef would need ro determine the effects of thar change and possibly propose a plan mendinen: to cornpenszte for the loss of habitar

Question =5 - Reyardins SCDP Lmd Acquisition

The dr& SCDP an~icipatesacquiring lands in the reserve areas within the firs six years foUowin-; permit issuance according to the foftowins priorities: 1) from bargain sales; 2) Erom wiling sellers at fair market appraisal; 5)from less willing sellers. Asain, I. would like to reiterate rhat owners unwilliog to sell are under no obligation ro sell their land. ffoviever, their land will remain resuicted by the CJ'SFWS. It;' landoaners wish to develop out of 'Lti2 SCDP, shey must pursue an individual incidental take permit from tJSFWS.

A goal of the SCDP is to focus on SLN~ habirat that is biologicdy kiable. In _eeneral, biologigrc211'1; viable scrub is lar,oe, unfia-gnented, parcels. Therefore, a larse number of planed "small lots" will be released under the SCDP. These small lot owners are the least able to comply indi>idually with the Endangered Species Act (ESA). The small lots identilied within the resene areas will be compensated for their land.

Queaion $7- Regarding Federd Lands:

The federal lands, particularly the Kennedy Space Center / bfemn Island National WYldlire Refuge ares were included as an important part of the SCDP analysis One of the goals of the SCDP planning process was to idenrify the exrent to which rhe exisrenct of scrub habitat and Florida scrub jays on public land reduced the responsibiliry and obligation or" privare l~mi,dsin Brevard County 'I?lr: result was that two entire subpopulations of Florida scrub jays. one on Meh Island and the other OR the North Barrier Island (Cape Canaveral area), were released for development under the proposed plan. These populations are connzcred ro the federal properties' scmb jay populations and therefore did not contnbutz biologically to the mnival of the species. The maidand populations of scrub jays and the population on rhe South Barrier Island are pographically isolated from the federal properties' population of scrub jays.

Alrhouk according to rhe County Attorney we can not include fedzd property in the SCDP reserve designs, it should be noted that federal properties are obligated to comply with the ESX. Tn fact, these agencies are perhaps more resuicsed in their replaxions &an private properry owners, "Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in funherance of the purposes of this chapter by canying ou; programs for the conservarion of endangered species and threatened species listed pursuant ro section 1533 of the ESA." Bionetics Corporation, the biolo@cal consultants for XASA are ourrenrly involved in several scrub habitat rnana,oement prcjzcts. Because of these efforts, lands that are outside rhe federal boundaries, but are biologically connected to them, have been released. if you should have any questions regarding this memo, please give me a call.

sc/enc. Board of County Comnissioners Tom Jenkins, County Manager SCDP Sieerins Cornmitree BREVARD COUNTY IN TER-OFFICE BOARD OF COUNTY COMMISSIONERS MEMORANDUM

MEMORANDUM

The Hon. Scott Ellis, District V Commissioner Lisa Barr, Director, NRMD (For inclusion in NRMD briefing package for 2/28/95 workshop) THROUGH Scott Knox, County Attorney + FROM : Katherine Harasz Assistant County

SDJ: Brevard County Liability for Scrub Clearing

DATE : February 16, 1995

This is in response to Commissioner Ellis' memo of February 3, 1995. I will address each numbered point as it appeared in your memo.

1. The United States Fish & Wildlife Service ("Service") is empowered to make two kinds of regulations under 16 USC §I533 of the Endangered Species Act ("ESA1'). One type of regulation is the listing of a species as endangered or threatened. 16 USC §1533(1). Concurrent with a listing of a species, the Service is required to make regulation designating any habitat of such species which is considered to be "critical habitat" for the species. 16 USC §I533 (3). All federal agencies are obligated to comply with federal legislation called NEPA, which requires an environmental assessment, an environmental impact statement, or a determination of finding of no significant impact for any agency action which might affect the human environment. The Service exempted itself from NEPA requirements with respect to both kinds of ESA regulations. The Service's rationale was that §I533 requires consideration of very specific factors, and consideration of any other factors under NEPA would be inconsistent with the ESA. As I

BCC-94a (New 4/87) explained in my memorandum dated January 24, 1995, the Catron County case which you forwarded. for my review addressed only regulations designating a critical habitat because the Service had failed to comply with NEPA. The Catron County court found authority for its decision in another federal district court opinion which expressly affirmed the Service's self imposed exemption from NEPA when the regulation is listing a species as endangered or threatened. The Service has only listed the scrub jay as a threatened species. The Service has not designated critical habitat for the scrub jay. Thus, the Service was not required to comply with NEPA in listing the scrub jay as a threatened species. Designation of critical habitat, although required under $1533, is only relevant to other federal agencies through §1536(2), which requires other federal agencies to consult with the Service to insure that the agency's action is not likely to "result in the destruction or adverse modification of habitat of such species which is determined by the secretary ... to be critical." Designation of critical habitat is not mentioned in 16 USC S1538, which confers liability on the County. The Service's regulation of Brevard County comes through one very simple provision at 16 USC §1538(1): [Ilt is unlawful for any person subject to the jurisdiction of the United States to -

(B) take any such species within the United States or the territorial sea of the United States.

"Person" is defined in 16 USC §1532(13) to include counties. Thus, the Service's obligation to designate critical habitat is not legally relevant to a person's liability under $1538 for taking a species "Take" is previously defined at §1532(19) to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." The Secretary of the Interior in turn adopted a regulation which defines "harm" in this statutory definition of "take" to mean "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 CFR $17.3. Courts have upheld the Service's definition of harm, hence the County's liability for taking a scrub jay by permitting significant habitat modification or degradation. Mr. Wesley's letter refers to the Service's previous listing of the scrub jay as a threatened species. Mr. Wesley states, Therefore, any activity or omission, including disruption or modification of habitat occupied by scrub jays, which significantly alters the behavior of the jays or creates the likelihood of injury or death to the birds, may constitute a violation of Section 9 of the Act. (emphasis added) Mr. Wesley's asserted jurisdiction arises solely from the listing of the scrub jays as threatened. Because designation is not referenced in S1538, any designation of critical habitat (or lack thereof) is irrelevant to the Service in its attempts to regulate Brevard County. Mr. Wesley's letter suggests that violations would only occur when land is actually occupied by a scrub jay. I am not familiar with all of the violations which have been alleged against Brevard County or any landowner, but Tami Townsend with the Natural Resources Management Division believes all violations involved a direct occupation of the property by a scrub jay. If the property were not directly occupied by a scrub jay, there is authority in the case of Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106 (9th Cir. 1988), which upheld the Service's definition of harm, that taking under the ESA can include habitat destruction that could result in species extinction. 852 F. 2d at 1110. But note that this finding of harm hinges on the causal link between habitat destruction and extinction of the species. Habitat destruction alone, without a showing that the listed species cannot survive without that particular land, would not survive judicial scrutiny.

As further example, this causal link was not found in Morrill v. Lujan, 802 F. Supp. 424 (SD Ala. 1992) . In that case, a project was allowed to proceed because the Service could not successfully show that the proposed development would harass and harm the Perdido Key beach mouse. The Court cited to the Palila case and noted that habitat modification alone is not enough. There must be proof of "the critical link between habitat.modification and injury to the species". 802 F. Supp. at 430. The Court did not find sufficient evidence that the beach mouse actually resided on the property. Assuming the beach mouse did reside on the property to be developed, the Court found no substantial evidence that the destruction of the habitat could threaten the species. Id. Evidence as to whether this critical link exists is probably better commented on by those in the Natural Resources Management Division which have expertise in the area of scrub jays and their dependency on any particular habitat.

2. Section 16 USC §I533 (a)(3) (A) requires the Secretary, to the maximum extent prudent and determinable, to designate critical habitat concurrently with making a determination that a species is an endangered or threatened species. Such designation is relevant only to other federal agencies, however, as is explained in answer #l. 3. There is one action that the County can take which would absolve itself from liability. This would be to obtain a permit for incidental taking under §I539 of the ESA. This is the goal of the HCP process. In the meantime, the Service has notified the County that the County must be certain that actions it undertakes do not harm the scrub jay or any other listed species. Exactly what level of County action would trigger a taking is unclear. Mr. Wesley indicates County issuance of permits allowing landowners to develop their property could harm the scrub jay. You then proposed repeal of land clearing ordinances so the County has no such involvement in development of scrub habitat. It is possible that other County acts might trigger a violation. Consider case law which has found FEMA1s issuance of Flood Insurance to trigger the consultation requirement for federal agencies because, but for the insurance, Key deer habitat could not be developed. With respect to a particular County action, the Service would have to prove that the County's actions have caused "significant impairment of the species' breeding or feeding habits and prove that the habitat degradation prevents, or possibly retards, recovery of the species. National Wildlife Federation v. Burlington Northern Railroad, Inc., 23 F. 3rd 1508, 1513 (9th Cir. 1994). Without a direct factual scenario presented for analysis, it is difficult to speculate as to every involvement that Brevard County might have in the development of any particular parcel of property. For example, if the County repealed land clearing ordinances but issued an Industrial Revenue Bond that would fund a corporation's development of scrub habitat,, would this be a county activity that has harmed the species? 4. Without the final HCP, I do not have the knowledge to answer this part of question 4. 4(a): The Service will require some proof of funding of the Plan from all HCP participants. If the County or any of the permit holders decide to withdraw from the HCP at any time, the withdrawing party ,would be subject to liability under the Endangered Species Act in the same fashion that the party is now liable. If parcels acquired for Scrub Habitat were sold to private property owners, those private property owners would be subject to the terms of the Endangered Species Act. If the County takes any acts to facilitate that development, i.e. issue permits, the County might be seen as a participant in the taking, liable just as it is now.

4 (b): If the owner of identified parcels refuses to sell, the County could invoke its power of eminent domain, if it so desired, to acquire the parcels. To invoke the power of eminent domain, the County would have to adopt a resolution of necessity finding a public need for the acquisition of the property, which could properly be meeting the goals of the HCP. If the permit holders did not wish to acquire any parcels by condemnation, and the land could not be acquired, this would probably be a changed condition which would reopen the HCP, requiring Service approval of an alternative purchase or the approval of the HCP without the purchase. 4(c): Having not reviewed the HCP in its final form or all of the chapters at once, I cannot answer question 4 (c).

4 (d): If land for the HCP has to be condemned, and those condemnation costs exceed the bond issue dollars available, the permit holders would probably have to find other funding to comply with their HCP obligations, or re-open the HCP and have the Service approve an alternative plan. There may be costs which will arise during implementation of the HCP which are not anticipated, and, if not provided for in the HCP, the permit holders would probably have to find the necessary funds or risk reopening of the permit.

5. Without the final HCP, I do not have the knowledge to answer this question.

6. According to a grant agreement which I recently reviewed, the Service views the HCP as a process which will designate critical habitat and generate information for NEPA compliance. Such designation, as explained earlier, is relevant only to federal agencies who contemplate taking action in.those designated areas.

7. Brevard County and the other permit holders do not have jurisdiction over federal lands. The Endangered Species Act does require that federal agencies consult with the Service before those agencies take any action which might jeopardize the continued existence of a threatened or endangered species. This was at issue in Florida Key Deer v. Stickney, FLW Fed. 362, (SD Fla. 1994), in which the District Court found that the Federal Emergency Management Agency's flood insurance program did impact the endangered key deer, requiring FEMA to consult with the Service prior to its administration of the National Flood Insurance Program in Monroe County.

8. The County paid $90,000 to the United States Army Corps of Engineers for wetland violations in connection with the construction of Grissom Road. The County also purchased 100 acres of wetlands as mitigation for wetlands taken and executed a conservation easement in favor of St. Johns River Water Management District for supervision of the 100 acres. I am not aware of any specific violation of the Endangered Species Act. 9. 16 U.S.C. §1540(a) allows the Secretary to assess a civil penalty of not more than $25,000 for each violation of any provision of the Endangered Species Act, or any provision of any permit or certificate issued thereunder, or any regulation issued in order to implement this subsection. The Service, having implemented a regulation in listing the scrub jay as a threatened species, would have the power under this section to impose a civil penalty for any taking of that species. As explained in paragraph #I, taking can include destruction of habitat necessary for the species' survival. 10. When the Service notifies a person of a violation under the Endangered Species Act, the Service must show that the person violated the Endangered Species Act by destroying habitat essential to the scrub jay's survival. The Service would have to show a critical link between that particular property (and not the habitat in general) and survival of the species. Designation of critical habitat is not necessary to this process, as explained, for the Service would be moving under the regulation listing the species as threatened. The Service has taken the position that the ESA sets forth very specific factors which must be considered in listing a species and NEPA might require consideration of factors inconsistent with the ESA listing process. Thus, the Service has not been required to comply with NEPA when listing a species, or in enforcement actions connected with that listing. 11. NRMD staff is trying to arrange for a Service representative to attend the workshop. SCDP Brochure

Press Here (lift off) Q. Who will benefit from the Plan? Questions A Evecone Bra ard counts's scrub habitat .I\ 111 Commitment be pmtmted forever, and the cost of land use Scrub And Answers will be reduced Landoimers ~711also benefit to a Solution b~ bo\%~ngthe opt~onsavailable for thelr land Conservation Q. What is the Scrub Conservation and By making the entire process better and by The Cltlzen Steenng Committee of the Scrub Development Plan "? preserving the quaht., of life in Brevard, the Conservation and Development plan e ded~cated a n d D ev merit A. The SCDP is a plan under the Endangered plan should aaract gro\\$h and jobs to finding a rapld, effic~ent,cost-effectlye and Species Act: developed by citizens, to protect b~ologlcallyviable solut~onto the conservation the Florida Scrub Jay and other animals and of scrub habitat 1n Brevard Count: plants that share its habitat while ensuring a The Committee operates such that: strong economy and future grois%hin Brevard Q. What will the final Plan look like? County. A. The Steering Cornittee is negotiating the exact details of the plan. The final plan wit1 consist I) Q. Why is the Plan being developed? The planning pmcess is open to all of areas identified as habitat sancharies. These A. As Brevard County's population gro\\7s.more interested pa&icipants will be purchased, set aside, and managed and more development is needed to accomodate new residents. This results in loss of living space permanently for conservation of scrub species. 4) The cost of the Conservation and (or habitat) for rare plants and animals like the In exchange, scrub habitat that lies outside Development Plan will be shared scrub jay. The cost of reducing de~~elopment's these sanctuaries will be released to other uses, impact on scrub habitat grows. too, ivithout such as land development. much benefit to the scrub jay. Scrub jays and @ The Plan will) belong to Brevard other species continue to decline, and the cost Coun(y5 scitizens of housing goes up. The solution lies in a plan that will protect scrub habitat in a way that @ The Plan will address eveqone's shares both the costs and benefits. The Citizen Steenng Committee meets the first needs: conservation, business and and third Thursday of each month at 230 pm in landowners Q. Who is creating the Plan? the Third Floor multi-purpose room of Building A. The Scrub Conservation and Development Plan C, at the County Government Center, hterested is being developed by a Steering Committee of citizens are encouraged to aaend meetings and six Brevard County citizens, selected by their to correspond with their steering committee /The Scrub Conservation and Development Plan process is paid for i bv a grant from the federal go\?munent. The Steering Committee ; peers to represent all the interests that are I -. tvishes to thank Congressman Jim Bacchus - (D hiaritt Island) I affected. The group includes businesspersons, for his efforts in obtaining this funding. 2 environmentalists, private land owers, and oEicials from city and county government.

For More Information or a presentation to your group, contact staff Brevard County or the SCDP facilitator in the Brevard County Natural Resources blanagement Florida Division (407) 633-201 6 0Printed on recycled paper Scrub j a ys are the living symbol of scrub Scrub Habitat habitat. They are one of only two native American birds that nest in cooperative families. Young of Other Va previous years help parents raise a new brood. Scrub jays cannot sunilve unthout scrub that has burned in the last 10 to 20 years. They are an The Scrub Conservation and Development ecologcal 'bbrellq" meaning that protecting the Plan will provide other important benefits jay helps many other scrub species survive. Scrub besides protection of scrub habitat and re- jays are legally protected as threatened under the duced developrnent cost. Among these are: Endangered Species Act. @ Aquifer Recharge @ Stomwater and Flood Control @ Protection of Water Quality in Economic the Indian River Lagoon Scrub, found on sandy soils in Brevard @ Recreation and Education County, is one of the rarest and most fragile habitats in Florida. This community of plants Benefits and animals has evolved on historic shorelines and dunes left as sea level fell over thousands of The Scrub Consemation and Development Plan will years. Scrub is a harsh habitat, marked by hot, likely provide many valuable economic benefits to The Steering dry conditions. This has resulted in remarkable Brevard County. Other such consenration adaptations of the plants and animals that live processes have found that the final plans: there. It is one of several natural communities that depend on fire to maintain their unique Committee conditions. Fire has been suppressed in Brevard @ Can reduce the cost of permitting development County for several decades. Gopher tortoises, another important scrub in released habitat areas by as much as 80% The Plan is being developed by a six-member species, dig long burrows to escape the heat, which compared to the current cost steering committee composed of people from in turn provide shelter for rare Florida mice, gopher each affected interest. Mernbers were selected frogs and endangered indigo snakes. Many plants @ Increase and attract new economic growth by their own interest groups in public meetings. that live in scrub are also unique. One species of and jobs because of the ease of permitting The broad interest groups on the committee and mint has been found to have a powerful natural new development their representatives are: insect repellent. Brevard's scrub has species of plants whose chemical properties have yet to be @ Provide predictability for business Environrlnental Kim Zarillo investigated. investment, a benefit very important to Business Tim McWilliams economic growth Scrub Land Owners Robert Cochran,Jr. The plan for conservation and development Incorporated Cities Bill Hall O Gve owners of scrub habitat certainty about of scrub will address the needs of more than sixty- Gen. Property Owners Faye Savasta future options for their land -- it will either be four species of plants and animals as they occur in Brevard Goun~ Commissioner Conradlna grand~florais one of more than a dozen rare scrub. This will not only protect the entlre natural purchased or released for other uses or endangad scrub plants found in Brevard Count]; Nancy Eggs Some scrub plants have been found to have remarkable community, but will provide valuable predictability ant1 useful chemical propaties for business by avoiding possible future conflicts