Federal Regulations
The US Endangered Species Act (ESA) is the principal federal law that is relevant to management and protection of many privately owned pine rockland areas in South Florida. The ESA pertains to listed plant and animal species and, in some cases, their designated critical habitat.
Federally listed animal species are afforded greater legal protection than plants under federal law. It is illegal to ‘take’ federally listed animals or to impact their critical habitat without permission from US Fish and Wildlife Service (USFWS); this is true for animals (but not plants), regardless of property ownership. The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. In a few cases, other federal laws have been enacted to protect animals.
It is important to understand the limitations under the ESA and the role of USFWS for properties where land clearing or development is proposed. USFWS does not regulate or authorize development on private lands or on nonfederal public lands, nor does it issue development or building permits. However, proposed projects with a federal nexus (i.e., the federal government will authorize, fund, or carry out the activity) and anticipated impacts to listed species are reviewed under Section 7 of the ESA during consultations. For projects with expected impacts to listed species and no federal nexus, Section 10 of the ESA applies (i.e., the developer must develop a Habitat Conservation Plan (HCP) in order to apply for an ITP). Developments and development permits are generally approved by local government. In this area, permits to develop land are issued by Miami-Dade or Monroe County.
The Migratory Bird Treaty Act (enacted in 1918) prohibits the take of migratory birds, including eggs and nests. There are more than 1000 migratory bird species protected by this act (USFWS 2013b); many of which are found in privately owned natural areas across South Florida.
State Regulations
The Florida Statute with most direct bearing on rare plants in privately owned pine rockland is Chapter 5B-40 of the Florida Administrative Code, entitled Preservation of Native Flora of Florida. These regulations, first passed in 1991, require that persons wishing to collect regulated plants from “the private land of another, or . . . any public land or water” first must apply for and receive a harvest permit from the Florida Department of Agriculture and Consumer Services (FDACS). Regulated plants are listed in the state Regulated Plant Index, section 5B-40.0055, and include the categories “endangered,” “threatened,” or “commercially exploited.” Section 5B-40.008 details the procedures for suspected violations of the act and includes seizure of illegally collected materials by FDACS and donation of surviving material to a non-profit plant conservation agency such as a botanic garden.
For protection of animals, non-game wildlife is protected by Chapter 68A of the Florida Administrative Code, entitled Freshwater Fish and Wildlife. Several rules within Title 68A have direct bearing on wildlife in private pine rocklands. Under Rule 68A-27.003, it is illegal to take, harass, touch or sell gopher tortoises or their eggs without a permit, and it is also illegal to damage or destroy gopher tortoise burrows. It is also illegal to collect ceraunus blue or cassius blue butterflies, rim rock crowned snakes, and numerous native bird species, including most wading birds, birds of prey, white crowned pigeons, and others.
Rule 68A-9.010 specifies that bats may not be taken as nuisance wildlife unless (a) “the take is incidental to the use of an exclusion device, a device which allows escape from and blocks re-entry into a roost site located within a structure, or incidental to the use of a registered chemical repellant, at any time from August 15 to April 15” or (b) “the take is incidental to permanent repairs which prohibit the egress of bats from a roost site located within a structure provided an exclusion device . . . is used for a minimum of four consecutive days/nights for which the low temperature is forecasted by the U.S. National Weather Service to remain above 50° F prior to repairs and during the time-period specified.” Exclusion of Florida bonneted bats cannot be done at any time unless a federal take permit is granted.
Finally, there are aspects of the Florida State Statutes which pertain to prescribed fire. Laws regarding the safe use of prescribed burning in Florida were passed in 1977 and 1990 and amended in 1999 (Brenner & Wade 2003). The 1990 'Prescribed Burning Act' was created to encourage prescribed burning. It states that (1) a certified prescribed burn manager must be present during a prescribed burn, (2) a written prescribed plan must be prepared which includes an evaluation of impact to smoke-sensitive areas, (3) prescribed burning should be considered in the public interest and not constitute a nuisance, (4) prescribed burning is a property owner’s right. Another aspect of the law is that if burning is conducted according to the act, the owner or his/her agent cannot be held liable for damage by fire or smoke unless gross negligence is proven. It is important to understand that the law is on the side of prescribed burning, because burns are a critical need for maintaining the health of pine rocklands. Prescribed burning cannot be conducted without official permission. The State of Florida Statute 590.125 requires the Florida Forest Service issue a permit prior to conducting prescribed burning activities. The Florida Forest Service currently conducts or participates in most of the prescribed burning of wildlands in urbanized Miami-Dade County.
Local Regulations: Miami-Dade County
Several Miami-Dade County regulations and planning documents have bearing on the development, management and preservation of private pine rocklands. Each of these is addressed below in turn. It should be noted that regulations in Chapters 8 (Building Code) and 33 (Zoning) of the Miami-Dade County Code apply to all zoning and construction, and would also have relevance to new construction projects. The Miami-Dade Property Search website (https://www.miamidade.gov/pa/property_search.asp) is a great tool to look up a property and its associated environmental restrictions.
(1) The Conservation Element of Miami-Dade County’s CDMP – The Comprehensive Development Plan is the County’s official development policy. It includes requirements for the protection of forested areas as well as listed plant and animal species. These requirements are typically implemented and enforced through zoning approvals and permits issued by Miami-Dade County. No permit can be issued (and no development order can be approved) that is inconsistent with the CDMP.
(2) Landscape Ordinance – The Miami-Dade County Landscaping Ordinance (Chapter 18A) sets standards for landscape practices and provides prohibitions (Chapter 18-12) which are intended to protect natural resources. These prohibitions include a ban on installing prohibited plants and a requirement that controlled plant species are not planted within 500 feet of a Natural Forest Community. Tree abuse is also prohibited.
(3) The Miami-Dade County Environmental Protection Ordinance (Chapter 24) – This chapter of the official County Code contains several elements that pertain to environmental regulations which are described in the remainder of this section.
Under the County’s Tree Ordinance (Chapter 24-49), permits and canopy mitigation are required to remove or relocate trees throughout unincorporated portions of Miami-Dade County. Tree permits are also required within municipalities that do not have their own tree protection ordinance. The tree ordinance assesses fines for removal of trees without a permit. It applies to all native and certain non-native trees with a diameter equal to or greater than 3 inches, when measured at 4.5 feet from the ground, or with an overall height of 12 feet or more. Non-native trees that are exempt from these requirements are included in the County’s list of Prohibited Plant Species. Prohibted plant species must be removed prior to development, and are banned from sale, planting, propagation, or transport on a development site. According to the code (Chapter 24-49.9), developed sites shall be maintained to prevent the growth or accumulation of prohibited species including grass, weeds, and non-native undergrowth.
The County’s Tree Ordinance includes language establishing the extent of Miami-Dade’s Natural Forest Communities (NFC). Designation of NFC is intended to protect the County’s highest-quality forest. Criteria used to evaluate whether a parcel should be designated as NFC include presences of rare species, plant diversity, tree size, and geologic features. The County Tree Ordinance requires a permit to clear and/or develop in NFC designated areas. Anyone wishing to remove or damage vegetation within designated NFC must apply to Miami-Dade County for an NFC removal permit. Removing or effectively destroying NFC without a permit typically results in the issuance of a citation or notice of violation, with the violators subject to corrective action, mitigation requirements, and potentially penalties. For sites where NFC has been authorized for removal under a permit, a covenant is typically required to insure the maintenance and preservation of the portions of the NFC that are not permitted to be cleared from the site. Covenants requiring protection and management of sensitive forested areas may also be required by zoning, site plan approvals, or other County development approval processes. “Maintenance” under the terms of these covenants includes removal of exotic plant species and management of the pine rockland preservation area(s) on the site. The County has an online interactive map of all properties with NFC covenants.
Miami-Dade County also has a voluntary program for private landowners who can apply to receve an Environmentally Endangered Lands covenant on their property, which provides a significant property tax break. Owners must property manage their property under the agreements, which are issued for 10 years. The County has an online interactive map of all properties with EEL covenants.
Local Regulations: Monroe County
The Monroe County Environmental Protection Ordinance (Chapter 118)
Monroe County regulations states that a landowner developing land where federally listed plant species will be harmed must pay a mitigation fee to the Monroe County Environmental Land Management and Restoration Fund. Furthermore, the development of pine rockland on Big Pine and No Name Key is limited to parcels used for residential areas, road widening, or firebreaks. The 20-year Federal HCP (2003-2023) also limits the total development of Lower Keys pine rockland to no more than 7 acres. In addition, per the county’s ordinance, all structures built in pineland habitat must have clear firebreaks following provided specifications.