Gopher Tortoise Incidental Take DRAFT

August 22, 2006

Background:

Since 1991, FWC has granted Incidental Take permits that have allowed permit holders to proceed with building operations that have caused gopher tortoises and other state and federally listed species to be ‘taken’. This permit allows the holder to ignore the presence of these species which may result in death by crushing, burrow entombment, or forced emigration to adjacent lands and subsequent vehicular collisions or other cause of mortality. This form of Incidental Take is considered to be of no conservation value and unacceptably inhumane. Such a policy, moreover, operates upon a logically and ethically flawed premise that a) allows individuals or corporations with the means to pay a fee to kill a protected species (threatened with extinction), often inhumanely through entombment or crushing, while b) making it illegal for an individual to save such a species from death in a roadway or to remove them from lands that are being cleared.

In light of the fact that data demonstrate that the gopher tortoise meets the criteria to qualify for reclassification as a “threatened” species, a proposed new permit policy and process would no longer allow such permitted take. Gopher tortoise permit holders will be required to excavate all burrows and relocate tortoises prior to site preparation and building.

In conjunction with a recent FWC commission decision to eliminate mandatory URTD testing to determine if a local population is to be taken, and considering the fact that scientific research-based methods of relocation currently demonstrate considerable success rates, this listing should insure a sharp decline in human-caused gopher tortoise mortality. However, discussion among FWC staff and with stakeholders suggests that inadvertent or accidental mortality may occur during translocations made with all due diligence on the part of the permit holder. Only under such minimally accidental circumstances may FWC allow the ‘take’ of gopher tortoises as a Threatened species.

The take must have no negative impact on the survival of the species on a state, regional, or local basis, and must not violate local regulations. A permit applicant must prove that all individuals possible and their habitat have been protected. Only very limited, minimal loss—defined as no more than 1% of tortoises onsite—will be allowed. No tortoise may be deliberately killed in an inhumane manner. Accidental tortoise death must be absolutely minimal or negligence will be suspected and a full investigation by FWC law enforcement initiated. When a tortoise is taken accidentally under this provision, a report must be filed with FWC detailing the cause and extent of the take. Failure to file such report and population estimates will be considered an illegal take.

Thus, permits allowing translocations or on-site relocations will include provisions for accidental or incidental take during required permitted actions (i.e. excavation, trapping, and relocation) provided that tortoise mortality is minimal and that permit holders follow proper, humane relocation protocol.

Such instances of permitted incidental take are expected to be rare cases and subject to special scrutiny before approval. To assist understanding of this process, recommendations for recognition and conditions of take permits are proposed below.

Justification and Explication:

Whereas, “No person shall take, possess, transport, molest, harass or sell any of the threatened species included in this subsection or parts thereof or their nests or eggs except as authorized by specific permit from the Executive Director, permits being issued only for scientific or conservation purposes and only upon a showing by the applicant that the permitted activity will not have a negative impact on the survival potential of the species” -- 68A-27.004 Designation of Threatened Species; Prohibitions; Permits;

The following definitions and regulations are proposed to further delineate the protection of Florida’s gopher tortoise or Gopherus polyphemus.

In this provision, “take” is defined as: 1) to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect one or more gopher tortoise, including juveniles, hatchlings, and eggs, 2) to destroy burrows at any age or use classification; 3) to destroy critical habitat to the point where individuals cannot forage, breed, or reproduce due to direct destruction of habitat or change in habitat use including but not limited to clearing for ground cover, increasing density of over-story and shrubs where both foraging, nesting, and burrows cannot be placed to function normally; or 4) causing emigration from the habitat or indirect habitat manipulation such as putting in infrastructure that may lead to take, or the use of equipment or chemicals without known potential impact to the species that results in take.

FWC will require that consultants and others performing management and mitigation activities with listed species meet specific experience and/or training requirements. These individuals must use the proper methodology for each action that could potentially lead to the direct or indirect take of individuals caused by unforeseen accidents or oversight by the landowner of either a donor or recipient site. The permitting of relocation, off or on site, must be done following currently accepted best management practices, including the use of enclosures and post-release monitoring. However, FWC recognizes the possibility of unintentional injury or mortality of a small percentage of the tortoises handled. Such mortality may result from stress or accident during capture, excavation, or movement that may accompany research, management, or mitigation action.

“Incidental Take” of a gopher tortoise is the unintentional take of an individual tortoise, its habitat, nests, burrows, eggs, or functional habitat accidentally, without knowledge of, or plan for, the action’s deleterious result. Permits that allow such “incidental take” are issued only after prescribed criteria for “due diligence” have been met, including but not limited to: relocating adults, juveniles, hatchlings and eggs from harm’s way to the extent humanly possible; preserving sizeable, functioning habitat and burrow/nest sites intact to the extent humanly possible on development sites; adhering to proper relocation protocol by qualified biologists or consultants; and presenting evidence of all the above “due diligence” to FWC for review and validation. A perceived lack of a relocation venue does not qualify as justification for an “incidental take” ; nor do claims of “financial hardship” or “time pressures” qualify as justification for an “incidental take.” No incidental take will be allowed that would deleteriously impact the overall survival of state tortoise populations in the wild, or any regional or local population’s survival in the wild.

Forestry management practices which allow development of thick underbrush, closing of forest canopies, or clear-cutting endanger the survival of threatened species since such practices destroy food plants, inhibit nesting, and cause tortoises to emigrate to the edge of roadsides and ditch banks, increasing their susceptibility to human predation and vehicle mortality. Conversion of land from agricultural use to development, or preparation for such conversion such as deep plowing, often results in tortoise injury and mortality. Thus, owners of land used for agriculture or silviculture will be required to account for gopher tortoises on land prior the conversion of such land to alternative uses that may impact the species, and will be required to file with FWC the acreage of habitat to be converted before the commencement of land conversion. All “due diligence” criteria apply to such activities; this means that every possible effort must be made to remove individual tortoises and eggs from harm’s way before activities commence. Failure to file such report and population estimates will be considered an illegal take. If it is considered by the FWC that an “incidental take” under state regulation 68A-27.004 is to be permitted, the owner shall be allowed, to relocate the protected species prior to the clearing or, the owner, in collaborative partnership with FWC, may enter into a conservation easement agreement with a state agency or land trust or sell the property for conservation, to aid listed species’ conservation goals.

Definitions (adapted from ESA for specificity to gopher tortoise management in Florida)

For the purposes of regulations pertaining to the management of Gopherus polyphemus-

The term "alternative courses of action" means all alternatives and thus is not limited to original project objectives and agency jurisdiction.
The term "commercial activity" means all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided, however, that it does not include exhibitions of commodities by museums or similar cultural or historical organizations.
The terms "conserve," "conserving," and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
1. The term "critical habitat" for a threatened or endangered species means-
  1. the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with state regulation, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and
  2. specific areas outside the geographical area occupied by the species at the time it is listed in accordance with state regulation, upon a determination by the Executive Director that such areas are essential for the conservation of the species.
2. Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph.
3. Except in those circumstances determined by the Executive Director, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.
The term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Executive Director to constitute a pest whose protection under state provisions would present an overwhelming and overriding risk to humankind.
The term "state agency" means any department, agency, or instrumentality of the state of Florida.
The term "fish or wildlife" means any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.
The term "import" means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the state of Florida, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the state.
The term "permit or license applicant" means, when used with respect to an action of FWC for which exemption is sought, any person whose application to FWC for a permit or license has been denied primarily because of the application to such agency action.
The term “permit or license holder” means any person whose application to FWC for a permit or license has been approved according to FWC regulations and provisions.
The term “person” means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the state.
The term "plant" means any member of the plant kingdom, including seeds, roots and other parts thereof.
The term "Executive Director" means, except as otherwise herein provided, the Executive Director of the Florida Fish and Wildlife Conservation Commission as conservation program responsibilities are vested pursuant to the provisions of Article IV of the Florida Constitution.
The term "species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species or vertebrate fish or wildlife which interbreeds when mature.
The term "State" means the state of Florida.
The term "Commission" means the Florida Fish and Wildlife Conservation Commission which is responsible for the management and conservation of fish, plant, or wildlife resources within the state.
The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. In this provision, “take” is defined as: 1) to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect one or more gopher tortoise, including juveniles, hatchlings, and eggs, 2) to destroy burrows at any age or use classification; 3) to destroy critical habitat destruction to the point where individuals cannot forage, breed, or reproduce due to direct destruction of habitat or change in habitat use including but not limited to clearing for ground cover, increasing density of over-story and shrubs where both foraging, nesting, and burrows cannot be placed to function normally; or 4) to cause emigration from the habitat or indirect habitat manipulation such as putting in infrastructure that may lead to take, or the use of equipment or chemicals without known potential impact to the species that results in take.
The term "threatened species" means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.
The term "United States," when used in a geographical context, includes all States.
The term "commensal species” means any species recognized as a species that lives in, with, or on, another, partaking usually of the same food; both species may be benefited by the association.

Exceptions (adapted from ESA for specificity to gopher tortoise management as a threatened species in Florida)

(a) PERMITS-

The Executive Director may permit, under such terms and conditions as she or he shall prescribe-
1. any act otherwise prohibited by 68A-27.004 for scientific purposes or to enhance the propagation or survival of the affected species (B) any taking otherwise prohibited by 68A-27.004 if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity
1. No permit may be issued by the Executive Director authorizing any taking referred to in paragraph (1)(B) unless the applicant therefor submits to the Executive Director a conservation plan that specifies-
  1. the impact which may result from the planned activity;
  2. what steps the applicant will take to minimize and mitigate such impact, and the funding that will be available to implement such steps;
  3. the species relocation plan the applicant will implement, which must include, but is not limited to, the excavation of all burrows at any age or use classification, the proper and humane relocation of all gopher tortoises per FWC relocation requirements, and the relocation of state- or federally-protected commensal species when such action is consistent with best management practices reflecting current scientific research.
  4. such other measures that the Executive Director may require as being necessary or appropriate for purposes of the plan.
2. If the Executive Director finds, after opportunity for public comment, with respect to a permit application and the related conservation plan that-
  1. any taking will be incidental and will only occur as an unintentional side-effect of a proper and humane relocation effort made without negligence and with due diligence in adherence to FWC relocation requirements;
  2. the applicant will, to the maximum extent possible, minimize and mitigate the impacts of such taking;
  3. the applicant will ensure that adequate funding for the plan will be provided;
  4. the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
  5. the measures, if any, required under subparagraph (A)(iii) and (A)(iv) will be met; and she or he has received such other assurances as she or he may require that the plan will be implemented, the Executive Director shall issue the permit. The permit shall contain such terms and conditions as the Executive Director deems necessary or appropriate to carry out the purposes of this paragraph, including, but not limited to, such reporting requirements as the Executive Director deems necessary for determining whether such terms and conditions are being complied with.
3. The Executive Director shall revoke a permit issued under this paragraph if he finds that the permit or license holder is not complying with the terms and conditions of the permit.

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