Hot Topics in Wetlands & Wildlife | The Lay of the Land Conference

July 20, 2022   |   Conservation Easements

Live at our annual Lay of the Land Conference, experts discuss environmental regulatory topics such as State 404 Permitting, federal wetland jurisdiction, and gopher tortoise permitting.

This is our “Hot Topics in Wetlands and Wildlife” breakout session from our annual land conference. Elaine Imbruglia of Modica & Associates and Susan L. Stephens of Stearns Weaver Miller discuss environmental regulatory topics as it relates to commercial real estate. These include subjects such as State 404 Permitting, anticipated changes in federal wetland jurisdiction, status of gopher tortoise permitting, and recipient sites.

Below is an excerpt from the interview. Listen above for the full podcast.

What is WOTUS? (Susan L. Stephens) Waters of the United States. In Florida, this is very important as we're practically underwater. Everything is water or wetlands or coastal. The federal jurisdiction under the Clean Water Act affects wastewater permitting, wetland permitting, and dredge and fill permitting. It's a supplemental permit if there's waters in the United States on top of the Environmental Resource Permit. What is jurisdictional when subject to federal permitting, federal control, and federal enforcement?

It's important to know in staying in compliance with the law. It can be an important and expensive topic. Florida has assumed the state for the Clean Water Act 404 program. It is the dredge and fill program and more technically, it is a discharge of dredge or fill material into waters of the United States. Over assumed waters, it's still subject to federal jurisdiction. Coastal waters are still regulated by the Army Corps of Engineers. They made that sort of administrative boundary and if you're impacting the wetlands inside that boundary, you have to get the permit from the Army Corps. Otherwise, DPA is issuing the permit. 

State vs. Federal Regulations. One of the ways that the DEP is asking folks to address this is to assume that everything that is state jurisdictional is also federally jurisdictional. This is understanding that EPA and the state have agreed upon your safe zone. The state regulates a lot further upland than the federal government. The state regulates a lot more land as wetlands because the federal government is supposed to be things that impact or are associated with traditional navigable waters. The state doesn't have that link. 

Is there a scarcity of gopher tortoise recipient sites? It has been a big problem because we have a lot of gopher tortoises. You used to be able to just bulldoze right over the gopher tortoise burrows. Now, the species has been under scrutiny by the federal government for listing under the Endangered Species Act. At the federal level, there used to be a species status assessment over both Eastern and Western populations of the gopher tortoise. Now, they only have to have one rule and while the western population is listed as threatened, the eastern population is not.

What is the real issue? FWC continues under its mistaken belief that the issue is availability of recipient sites. In actuality it is the increased stringency of the gopher tortoise guidelines. Basically, you can get many multiple millions of dollars to develop your property as residential or you can submit to these very excruciating obligations to permit your site as a recipient site. In the ladder, you’ll only get money until your capacity is full and then you have to protect, monitor, and manage that land forever. There's a huge disincentive that is not just related to the timing of recipient sites, but also the permanent applications.

What’s happening at these recipient sites? (Elaine Imbruglia) We had a huge void there for several months. We couldn't get any reservation letters and there were no recipient sites with capacity. When there was one large landowner down south, we were paying about $2,000 per tortoise. Then they realized they were the only man in town and two months later, we're paying $6,000 per tortoise. There's even another site that's currently available for $10,000 a tortoise.

There's a huge lack of these recipient sites. These private landowners who own potential recipient sites are not interested. This is because you can either have a short-term protected site or a long-term protected site and both options require a conservation easement. The long term protection requires a perpetual conservation easement with restriction. The only benefit to the short-term is that it could be a 20- to 30-year easement that allows for silvicultural uses. In order to use the short-term recipient site however, you can only have a 10-or-fewer burrows permit. The reality of it is most projects have 10s-to-hundreds of burrows on them. 

What is the plan? Right now there are several recipient sites that are under review with FWC. We anticipate that there'll be 4,000 spaces for long term protected sites and probably up to 6,000 to 7,000 for short-term protected sites. Personally, we’ve had a lot of interest from landowners when they realize, “Hey, I can get five grand a tortoise.”

We've already moved 56,000 tortoises since September of last year. There's no shortage of tortoises, but the process of moving these tortoises is not sufficient. We're going to try to put together a pilot program for the state-owned lands because nobody knows what to do. Basically, there was a piece of legislation that passed that said: “You must consider putting tortoises on your state property.” Well, nobody knows how to do it. We're going to try to put a pilot program together to see if we can figure that out and put some competition in the market.

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