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DIVISION 8. PROTECTION OF HABITAT

Sec. 10-471. Purpose of division.

The purpose of this division is to provide criteria, guidelines and requirements to protect listed animal and plant species which inhabit the county by safeguarding the habitat in which these species are found from the impacts associated with land development.

Sec. 10-472. Definitions.

The following supplemental definitions are unique to the protected species requirements of this chapter. The general definitions pertaining to this chapter are contained in section 10-1.

Conservation easement means a right or interest in real property which is appropriate to retaining land or water areas predominantly in their natural, scenic, open or wooded condition; retaining such areas as suitable habitat for fish, plants or wildlife; or maintaining existing land uses; and which prohibits or limits the activities described in F.S. § 704.06, as such provisions now exist or may be amended.

Degradation means any adverse or negative modification (from the perspective of the subject species) of the hydrological, biological or climatic characteristics supporting the species or of plants and animals co-occurring with and significantly affecting the ecology of the species.

FLUCCS means the Florida Land Use, Cover and Forms Classification System, published by the state department of transportation.

Game commission means the state game and fresh water fish commission, or its successor.

Habitat means the place or type of site where a species naturally or normally nests, feeds, resides or migrates, including, for example, characteristic topography, soils and vegetative covering.

Habitat, critical means habitat which, if lost, would result in elimination of listed species individuals from the area in question. Critical habitat typically provides functions for the listed species during restricted portions of that species' life cycle.

Habitat, occupied means property that provides critical habitat and which is documented to be actively utilized by a listed species.

Habitat, significantly altered: Critical or occupied habitat which has been altered due to natural or man-made events.

Lee County listed species means any plant or animal (vertebrate) species found in the county that are endangered, threatened or of special concern and are manageable in the context of private land development. A list of such species is contained in appendix H. The bald eagle (Haliaeetus leucocephalus) is excluded as long as chapter 14, article II, division 3, relating to bald eagle nesting habitat, is in effect in the county.

Management means a series of techniques applied to maintain the viability of species in a location. These techniques include but are not limited to controlled burning, planting or removal of vegetation, exotic species control, maintaining hydrologic regimes, and monitoring.

Management plan means a plan prepared to address conservation and management of listed species and their habitat, which is approved by the director, following recommendations from the game commission.

Mitigation park means an area acquired with the express purpose of mitigating impacts of land development on listed species.

Occupied habitat buffer area: Occupied habitat, the dimensions of which coincide with the recommended buffer guidelines established in section 10-719 and section 10-474(b).

Property means the land which is the subject of the specific development application.

Sec. 10-473. Development application requirements.

(a) A survey must accompany all planned development rezoning applications and all development order applications where the Florida Land Use, Cover and Forms Classification System codes for the property indicate a possible presence of a Lee County listed species, except as set forth in subsection (c) of this section. The survey must be prepared by using survey methods which are set forth in administrative code, except that an alternative method may be approved by the director. Such survey must include Lee County listed species presence (sightings, signs, tracks, trails, nests, evidence of feeding, etc.), population estimates and occupied habitat boundaries. A map and narrative must describe the methodology as applied and the findings. The mapped information must be at the same scale as the development order or zoning application plans and an aerial map at a scale of one inch is less than or equal to 400 feet.

Approved species surveys are valid for five years from the date of approval. If the subject parcel has significantly altered habitat, the director may, in his discretion, determine a partial or complete resurvey is sufficient.

(b) A management plan may be submitted with any planned development rezoning applications. A management plan meeting the requirements of section 10-474 will be required for all development order applications if listed species are found on the property, except as set forth in subsection (d) of this section. The management plan is subject to final approval by the director.

(c) Surveys and management plans are not required for:

(1) Small developments;

(2) Properties rezoned to planned development (PD) or planned unit development (PUD) prior to September 1, 1989; or

(3) Property subject to a preliminary development order issued prior to September 1, 1989.

However, if the property is rezoned or if the master concept plan has been vacated, a species survey and management plan will be required. The director may waive survey and management plan requirements if the director deems that prior surveys and management plans are adequate.

(d) Management plans are not required for any final development order application if the preliminary development order was issued prior to September 1, 1989, and the final development order application does not substantially deviate from the preliminary development order.

(e) For development order applications, submittal items that are common to both the species survey and the management plan can be provided in a single integrated report.

Sec. 10-474. Management plan.

(a) Components of plan. The management plan required under this division shall include:

(1) A 1 inch equals 200 feet aerial map and a map at the scale of the development order drawings or zoning site plan drawing to include the following:

a. Habitat classification depicted by using the Florida Land Use, Cover and Forms Classification System;

b. Location of individuals, nest sites, dens, burrows, feeding locations, roosting and perching areas, and trails, as appropriate;

c. Areas to be preserved, including habitat and buffers;

(2) Recommended management activities; and

(3) An action plan with specific implementation activities, schedules and assignment of responsibilities.

(b) Occupied habitat buffer areas established. Occupied habitat buffer areas must be established for occupied habitat and must extend at a distance appropriate for the listed species as set forth in section 10-719 except where off-site mitigation is permitted accordance with section 10-475. In the event the game commission has already established the size and dimensions of an occupied habitat buffer area, those boundaries will supersede the distances shown in section 10-719.

(c) Development and occupied habitat buffer areas. The occupied habitat buffer area must remain free of development, except for development which will not degrade species existing on the site as determined by the director. Occupied habitat buffer areas may be impacted by development if off-site mitigation is utilized in accordance with section 10-475. These buffer areas must be identified on all associated applications and plats where applicable. Buffer areas may not be divided by lot lines unless the director determines that the division of these buffer areas by lot lines is consistent with the protected species management plan. A conservation easement or similar property interest must be granted to the county for the preserved property as a condition of the development order approval or final plat approval, unless the director determines it would not be logistically or economically feasible for the county to maintain the easement. Encroachments into occupied habitat and habitat buffer are permissible only after the incentives set forth in subsection (e) of this section have been exhausted or off-site mitigation is permitted in accordance with section 10-475.

(d) Conservation easements. If adjacent parcels include conservation easements or other public interest in the land, effort shall be made to connect the easements.

(e) Incentives. The county will allow certain incentives in return for the preservation of occupied habitat areas. This incentive system will only apply to those areas to which other incentives have not been utilized and which are not preserved under chapter 14, article IV, pertaining to wetlands protection. Occupied habitat buffer area incentives are as follows:

(1) Required occupied habitat buffer areas may be used to fulfill any applicable minimum open space requirements at a ratio of one unit habitat and habitat buffer to 1.5 unit required open space (1:1.5). In no event will this credit be interpreted to reduce any required occupied habitat buffer area.

(2) Those single-family developments which consist solely of conventional single-family dwelling units on lots of no less then 6,500 square feet and do not have an open space requirement will be exempt from division 6 of this article, pertaining to open space, buffering and landscaping except for the minimum buffer requirements, so long as the applicant preserves occupied habitat buffer areas consisting of no less than 10 percent of the development area.

(3) To the extent that occupied habitat buffer areas exceed applicable minimum open space requirements after the use of the above-described ratio, or as in subsection (e)(2) above exceed 10 percent of the development area, the county must either allow encroachment into the occupied habitat or permit a credit against regional park impact fees.

The credit against the impact fees may not exceed the appraised value of the preserved land. The appraisal must be based on the value of the property prior to the issuance of the development order that includes the occupied habitat buffer area and on the average of the two appraisals approved by the director. The credit will be approved upon the grant of the conservation easement.

(f) Purchase of conservation easement for Florida panther or Florida black bear. The county must either purchase a conservation easement or a fee simple interest in occupied habitat for the Florida panther or the Florida black bear or permit development to encroach in such areas.

(g) Consideration of game commission guidelines for listed species. In cases where guidelines have been prepared by the game commission for a listed species, those guidelines must be considered in the preparation of the management plan.

(h) When determination made without game commission expertise. If the game commission fails to review any plan in conjunction with county staff's allotted time schedules, determinations will be made without the benefit of game commission expertise.

(i) Responsibility for implementation of management plan; monitoring report review. The applicant or his successor in interest is responsible for all aspects of the implementation of the management plan. A monitoring report as to the condition of the habitat and management techniques applied to the habitat must be submitted to the director for review on an annual basis from the date that the development order is issued for five consecutive years.

(j) Management plan finalization. The management plan must be finalized prior to issuance of the development order.

Sec. 10-475. Off-site mitigation.

(a) Off-site mitigation is permitted in lieu of the preservation of occupied habitat buffer areas as required in section 10-474 above to the extent consistent with the requirements of the U.S. Fish and Wildlife Service and the game commission.

(b) Before development order approval, the applicant must obtain and submit appropriate permits for off-site mitigation.

(c) A permanent management commitment for the relocation recipient site which is compatible with long-term protected species viability must be ensured by either filing conservation easements for sites under F.S. § 704.06 or other formal commitments enforceable by the county.

Sec. 10-476. Variance procedures and appeals.

(a) Requests for variance from the terms of this division will be administered and decided in accordance with the requirements for variances set forth in chapter 34.

(b) Any decision made by the director or his designee may be appealed under the procedures set forth in chapter 34 for appeals of administrative decisions.

Secs. 10-477--10-500. Reserved.

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