HCP Expiration in Big Pine Key: Is the proposed plan enforceable?
IS THE PROPOSED PLAN ENFORCEABLE?
Issue 1: The Proposed Plan Conflicts with the Land Development Code
County’s Position: The County can enforce the 24 carry-over conditions from the HCP through the Permit Referral Process, because they are already part of the Livable CommuniKeys Plan, Comprehensive Plan, or Land Development Code (LDC).
Last Stand’s Response: The LDC directly conflicts with the plan as described. Implementing it would require the County to violate its own code. Property owners are entitled to rely on written, adopted land development regulations. Protections that require the County to contradict the LDC are not protections that can be relied upon — by residents or by the County in defending permit decisions.
Example 1 — Updated Species Assessment Guides: The County says it will review permits using the updated Species Assessment Guides (SAGs) per the May 27 FWS letter. But LDC Sec. 122-2 states: "Permits submitted after February 17, 2014 shall be reviewed utilizing the July 29, 2013, FEMA/FWS SAGs." The LDC does not authorize use of the new SAGs.
Example 2 — Permit denials based on H=1.1.: In order to carry over the H=1.1 impact limit, the County would eventually have to deny permits once that limit is reached. The LDC does not authorize that denial. The Permit Referral Process (Sec. 122-12) requires the County to approve permits as long as either: (a) the applicant agrees to FWS conditions, or (b) the permit receives a "no effect" or "not likely to adversely affect" determination. The LDC provides no mechanism to deny a permit that otherwise satisfies these criteria.
Example 3 — Referral Process applicability: The County says all permits in Big Pine and No Name Key will go through the Permit Referral Process. But LDC Sec. 122-12(2)(g) states that permits in areas previously covered by a habitat conservation plan are exempt from the Referral Process if mitigation was already completed for the associated impacts. Mitigation has been completed for the full H=1.1 impact. Under the LDC as written, those permits would not go through the Referral Process at all.
Issue 2: No Written Policy or Adopted Implementing Regulations
County’s Position: Existing regulations plus the FWS letter is enough to implement this policy.
Last Stand’s Response: Neither the FWS letter, the staff report, nor its attachments establish a predictable regulatory framework that property owners and wildlife can rely on. Planning documents — including the Comprehensive Plan and the Livable CommuniKeys Plan — are not inherently self-executing, particularly when it comes to regulating private property. The LDC provides the specific, actionable criteria needed to implement those plans.
Open implementation questions—
• Neither the County or FWS have established in writing who is responsible for implementing and enforcing the carry-over limits — the County or FWS? If the County, will it be the floodplain administrator? Environmental reviewers?
• Will the County deny permits once the H=1.1 cumulative impact limit is reached? Even if they agree to FWS conditions?
• Do all permits count as "take" and get subtracted from the 1.1 limit?
• If the H=1.1 limit has been met, what happens if an individual applicant obtains their own HCP/ITP?
• How can an applicant appeal a permit denial based on a condition not codified in the LDC?
• The Biological Opinion and HCP/ITP both authorized take of up to 4 Key deer per year via road mortality. How will that be monitored and enforced going forward?
• How will the framework apply to development on state-owned lands?
• How will it apply to self-insured development — such as projects by College of the Florida Keys, Monroe County, or other entities not participating in the NFIP?
Questions for the record:
• The staff report states that FWS "has also confirmed that key protections developed for the HCP/ITP will remain in effect." If those protections are already existing, enforceable County regulations, what was FWS confirming — and why was confirmation necessary?
• The County's May 2021 staff report stated that allowing the HCP/ITP to expire would "affect allocations, ROGO/NROGO, Tier 1 development, mitigation, clearing, fences, accessory uses, etc." Those are precisely the subjects addressed by the 24 carry-over conditions. The County is now saying none of those things will be affected. We would welcome the County's explanation of what changed between 2021 and today.
Recommendation:
Adopt clear written policies and LDC amendments to carry forward these protections. Previous staff reports stated that if the County chose not to extend the HCP/ITP, it would need to prepare Comprehensive Plan and LDC amendments — a process that takes 12 to 18 months (1). Last Stand agrees.
Those amendments should adopt each of the 24 proposed HCP conditions. They should also address conflicts that result from loss of the HCP, such as how Tier boundaries on Big Pine and No Name Key will be defined without reference to the HCP. (The Comprehensive Plan currently states that Tier I, II, and III designations "shall be in accordance with the wildlife habitat quality criteria as defined in the Habitat Conservation Plan.")
Issue 3: The Livable CommuniKeys Plan Does Not Firmly Establish the H=1.1 Limit
County's position: The H=1.1 limit is enforceable because it is in the Livable CommuniKeys Plan as an Action Item.
Last Stand's response: This is the most significant protection that the County says is being carried over. But the LCP does not firmly establish the H=1.1 limit, and it does not address how the H-unit budget would apply after the 20-year planning period. The relevant language describes the H-unit budget as "a guideline for the approximate amount of H that should be anticipated for planned development over the twenty-year horizon." (2) That is a guideline, not a regulation — and by its own terms, it applies to a planning horizon that ended in 2023.
IS THE COUNTY REALLY PROHIBITED FROM EXTENDING THE HCP/ITP?
County's position: The County is legally prohibited from extending the HCP/ITP, in part due to Biological Opinion litigation. Staff stated that the prior extension "fit the framework that was visioned by the mutual agreement of the parties to the key deer litigation."
Last Stand's response: Monroe County has a right to request an extension or renewal of the HCP/ ITP, as it did in 2021 when it extended coverage from 2023 to 2026. The fact that the extension deadline has passed does not preclude a renewal — FWS has renewed permits that temporarily lapsed when an extension deadline was missed.
When staff recommended the 2021 extension, the staff report noted that FWS said it "would be possible and relatively simple.” (3) The HCP/ITP itself outlines the procedures (Section 6.4 Permit Renewal or Extension).
The Biological Opinion litigation does not and could not prohibit an extension or renewal of the ITP. The BOCC meeting was the first time the County took this position publicly. The BiOp was designed to match the HCP's timeframe because the two instruments were intended to operate in tandem — as the 2010 BiOp states: "In order to maintain consistency between the two reviews… the Service is matching the FEMA NFIP period of review to the period of time and expiration date of the Big Pine/No Name Key HCP." (4) That design choice does not create a legal bar to extension.
FEMA's Position Has Not Been Confirmed, and Monroe County Shouldn’t Rely on FWS’s Letter for Legal Assurances
Before the County finalizes this plan, it should confirm in writing that FEMA considers the plan compliant with the Biological Opinion's Reasonable and Prudent Alternatives (RPA). FEMA — not FWS — is responsible for determining whether Monroe County is in compliance with the BiOp and the RPA. The RPA states:
"If FEMA determines the participating community's non-compliance with this RPA has caused take of threatened or endangered species that cannot be corrected or offset, FEMA will initiate procedures outlined in 44 CFR 59.24 for probation and suspension of community eligibility for flood insurance."
"FEMA will treat any violation of this RPA as a substantive program deficiency or violation under 44 CFR 60.3."
Confirming FEMA's position is prudent; FEMA could face its own legal exposure if it issues flood insurance policies that don’t comply with federal regulations or the BiOp, and they may not be willing to take on the same risk as the County. NFIP participation is too important not to get confirmation in writing.
A separate concern: FWS's letter is not a legal safe harbor. FWS is regularly challenged in federal court for failing to comply with the ESA and regularly loses. FWS recently settled a case brought by the Center for Biological Diversity specifically for failure to follow legally required procedures for the protection of endangered species in the Florida Keys.
The New Plan Won’t Account for All Environmental Impacts
This transition is being presented as if the primary change is an additional 36 residential units. While it’s still not clear exactly how this process will work for the permits in Big Pine & No Name, we know how it works for the properties that currently go through the Permit Referral Process under the Biological Opinion – and a lot of development and impacts aren’t counted or tracked.
Categories that are not clearly tracked or counted under the proposed framework:
• Permits that do not expand a structure's footprint, expand clearing, or place fencing do not go through the Permit Referral Process. A four-acre concrete pad for a commercial or institutional use would not clearly be captured.
• Redevelopment and conversions that increase traffic are not counted, even though traffic is the primary cause of Key deer road mortality.
• The Species Assessment Guides do not apply to lots smaller than one acre, unless directly adjacent to undeveloped native habitat of more than one acre. These properties can receive a "no effect" determination — not counted against any take or impact limit — as long as they contribute money or replant native trees.
• Development on state-owned lands falls outside the County's permitting purview.
• Self-insured development — including projects by FDOT, College of the Florida Keys, Monroe County itself, and other entities ineligible for federal flood insurance — falls outside the NFIP framework the BiOp relies on. The Incidental Take Statement monitors take by summing habitat lost from NFIP-related projects; non-NFIP development is not counted.
Recommendation: All carry-over protections should be adopted into the LDC and Comprehensive Plan. A one-year extension of the HCP/ITP would hold the existing framework in place while the County completes that process — before the SB 180 preemption expires and that option becomes available.
Who is Really Responsible for Monitoring?
County's position: FWS is responsible for conducting the Key deer census, and since FWS has not been conducting it, expiration of the HCP changes nothing.
Last Stand's response:The HCP requires Monroe County — not just FWS — to conduct an annual Key deer census (5) and to fund or provide staff for biological monitoring (6). The fact that this obligation has gone unmet is itself a problem worth fixing, but not a justification for abandoning it.
The practical consequence is that neither the County nor FWS is taking responsibility for monitoring. Without a census, there is no way to evaluate the impact of future development, detect early signs of population decline, or demonstrate that the County's policies are working.
Monitoring & evaluation under the HCP/ITP, but not the Biological Opinion:
• Annual Key deer census
• Summary of Key deer mortality, including human-related deaths
• Key deer mortality ratio (population estimates vs. human-caused deaths)
• Discussion and interpretation of census and mortality data
• Annual impacts to Lower Keys marsh rabbit buffer areas
• Summary of Lower Keys marsh rabbit road mortality
With the HCP gone, more residential and commercial development on the way, and the local FWS biologist position at the Key Deer Refuge being eliminated, the County will have less monitoring data than at any point in the last two decades
Recommendation: The BOCC adopt a resolution taking responsibility for an annual Key deer census. Monroe County should explore partnerships with local conservation organizations and educational institutions to help fund and carry out this work.
“Letting the HCP/ITP sunset… would also require the preparation and processing of Comprehensive Plan and Land 1 Development Code amendments which take approximately 12 to 18 months to process and become effective." Monroe County staff report.
Livable CommuniKeys Plan for Big Pine and No Name Key, p. 33.
Monroe County BOCC Agenda Item Summary 3035, Agenda Item B.1, March 31, 2021, p. 7.
2010 Amended FEMA Biological Opinion, p. 87.
Big Pine & No Name Key Habitat Conservation Plan, p. 63.
Ibid., p. 67.
Photo by Zoshua Colah on Unsplash
