Do Your Due Diligence: Environmental Assessments of Commercial Properties
Bordered by water, but attached to the continent—almost an island, but not quite—Florida offers us a diversity of climates and temperatures, which results in a wonderful variety of plants and animals. As a result of our great climate, thousands of people move here every year and this puts pressure on native plant and animal species as their habitats disappear. The state and federal government are charged with protecting these imperiled species and they have a variety of laws and rules at their disposal. However, sometimes these laws come into direct conflict with the goals of a development project. Ideally, before land is purchased for a project, you should have an idea as to whether or not you have threatened or endangered species living there.
“Threatened and endangered species” is a term used to describe a plant or animal that is at risk of becoming extinct. “Threatened” usually means that the organism is likely to become extinct in the future. “Endangered” means that the species is at the brink of extinction now.
There are many laws, both at the state and federal government level, that deal with endangered species. Starting at the top, the federal government protects many species under the Endangered Species Act of 1973. The U.S. Fish and Wildlife Service maintains the list of endangered, threatened, and imperiled species, and writes the rules that govern how we interact with them.
Migratory birds come under the Migratory Bird Treaty Act of 1918. Some 800 birds are protected under this law. This also includes bird parts, such as feathers, and bird eggs and nests. Common protected birds that you may be familiar with include eagles, owls, hawks, ospreys, vultures, kites, and falcons.
The State of Florida also has a list of protected species, managed under the Florida Fish and Wildlife Conservation Commission (FWC). The FWC list shows both the federal and state species.
The most common species that you may find on a parcel of land are described below:
Gopher tortoises (Gopherus polyphemus) are large, long-lived, terrestrial reptiles that are commonly found in sandy soils in uplands. They prefer an open canopy (not a lot of big shade trees) as they need sunlight to maintain body temperature. They also prefer a diversity of groundcover plants for food, and an open understory so that they can move around with ease. Gophers are considered a keystone species; over 300+ other species depend on the gopher tortoise for survival, as they live in their distinct, deep burrows. Gophers are listed as Threatened by FWC and, as such, you are not allowed to disturb them or their burrows. You must obtain a permit from the FWC if you need to relocate a tortoise.
Permitting and relocating tortoises can be an expensive undertaking. As part of your due-diligence period, it would be wise to assess the property to see if it contains the proper habitat for tortoises and, if so, to hire an experienced, authorized gopher tortoise agent to conduct a survey to see if there are any burrows. A list of agents is found at the FWC online locater map.
If gopher tortoise burrows are found, your best option is to modify your proposed development plan to avoid them. If you can’t do that, you may want to begin the permitting process to relocate them. If the abundance of burrows is high, or the cost to relocate is prohibitive, then maybe that property isn’t right for your project at this time.
The other threatened and endangered species that you may have on your property are raptors (nests), which mostly include ospreys (Pandion haliaetus). Ospreys are protected both by the FWC in Florida and by the U.S. Fish and Wildlife Service under the Migratory Bird Treaty Act of 1918. Permits are required to remove inactive nests, and active nests can be removed only if they are providing a safety or health hazard, such as nesting on a power pole; here are nest removal guidelines. Osprey nests are typically found in wetlands or near waterbodies, so it is likely that your project will avoid them anyway.
While the bald eagle is no longer on the official endangered species list due to its continued recovery, it still has protection under the Bald and Golden Eagle Protection Act of 1940, and the Migratory Bird Act. So you still need a permit to disturb a nest.
Endangered plants also have protection status, and while you don’t have removal and relocation permitting issues typically, you might find that their presence can impact the overall assessment that a government agency makes on your parcel. A local government, for example, may require you to avoid a certain area with protected plants, or provide mitigation for their potential destruction.
As always, finding out about potential problems on your site before you enter into your final contract phase are well worth a little upfront time and cost to fully understand what you are getting into.
You’ll be glad to know, by the way, that fire ants and yellow flies aren’t protected under any laws.
The Phoenix Environmental Group, Inc.