June 16, 2015

Cynthia Dohner Southeast Regional Director U.S. Fish and Wildlife Service 1875 Century Blvd., Suite 400 Atlanta, GA 30345 Nick Wiley Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building, 620 S. Meridian St. Tallahassee, FL 32399

RE: Next Steps on the Florida Section 6 Cooperative Agreement and Eastern Indigo Snake Conservation

Dear Cindy and Nick:

This letter is in response to the recent decision to discontinue work on the draft permitting guidelines for the eastern indigo snake under the Florida Section 6 Cooperative Agreement. Defenders of Wildlife supports this decision for several reasons, including the lack of an updated Endangered Species Act (ESA) recovery plan for the species. We also urge your agencies to allocate more resources to recovering the indigo snake and to ensure that incidental take permitting adequately protects the species. The indigo snake warrants special attention because it has been listed for 37 years but continues to experience extensive habitat loss from incidental take permitting and is in serious need of an updated comprehensive recovery plan to guide actions to protect both the species and its habitat. The U.S. Fish and Wildlife Service (Service) staff recognized these problems and attempted to address them through the permitting guidelines. We applaud this effort and recommend the Service build on it by implementing the five conservation actions for the indigo snake described in this letter.

We continue to support your agencies pilot testing the Cooperative Agreement and endorse its goal of achieving a “net conservation benefit” for covered species. We understand that the Service and the Florida Fish and Wildlife Commission (Commission) will begin evaluating other species for permitting guidelines. Selecting the right species is crucial to a successful permitting program that furthers recovery. Based on our experience with the indigo snake draft permitting

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guidelines, this letter proposes for your consideration a transparent and structured method for your agencies to select appropriate species for future guidelines. We have applied this method to all 54 ESA species that occur in Florida (except marine species) to identify those we believe are the most appropriate for your agencies to consider.

The appendix to this letter describes our recommendations in greater detail, which we summarize below for your convenience:

Five conservation actions for the indigo snake We encourage the Service to consider implementing the following actions for the indigo snake within the next two years: (1) finish drafting the revised recovery plan for the species, (2) revise the Standard Protection Measures for the Eastern Indigo Snake to focus on protecting habitat essential for recovery, (3) develop standards for compensatory mitigation for the species and monitor their effectiveness, (4) incentivize the use of indigo snake detector dogs for surveys associated with incidental take permitting, and (5) post online all current and future habitat conservation plans (HCP), biological opinions (BO), biological assessments (BA), and associated monitoring reports for the species.

Define “net conservation benefit” under the Cooperative Agreement The Service and the Commission should define “net conservation benefit” based on improvements to the status of a covered species—does each permit issued under the Cooperative Agreement move a species closer to recovery? From a biological perspective, this question could be framed as whether a permit results in an increase in the long-term viability of the covered species.

A process for selecting species for permitting guidelines We encourage the Service and the Commission to use a structured and transparent process to select species for permitting guidelines. We offer for your consideration a three-step process that involves (1) defining the specific objectives of the permitting program, (2) collecting and examining data on the conservation status and threats for each species under consideration, and (3) integrating the specific objectives and the data to select the best species for permitting guidelines. We are also attaching a spreadsheet that provides information about the ESA listing, recovery, and permitting status of all 54 Florida species (except marine species). We believe this information will help your agencies create a short list of species that may be suitable for permitting guidelines.

 

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Thank you for considering our suggestions. We continue to support the Cooperative Agreement if it helps recover species. Please do not hesitate to contact us if you have questions or wish to discuss further.

Sincerely,

Jamie Rappaport Clark President and CEO

 

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APPENDIX

Recommendations on Eastern Indigo Snake Conservation and Implementation of the Florida Section 6 Cooperative Agreement

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I. The Service should prioritize recovery of the eastern indigo snake by focusing on five conservation actions.

Because the status of the indigo snake appears to be in decline, we suggest the Service prioritize five measures to conserve the species. Before describing these recommendations in more detail, we would like to explain why the Service should focus more on conserving the species. To understand the impact of incidental take permitting on the indigo snake, we reviewed approximately two dozen BOs, BAs, HCPs, and associated monitoring reports that cover the species. Our analysis strongly suggests that the species has not been adequately protected under sections 7 and 10. Examples of deficiencies include the following:

Some BOs did not provide enough information about conservation commitments to enable the Service to verify compliance or effectiveness. For example, in the 2012 BO for the Star Ranch Limestone Mine, the Army Corps proposed to create 22.8 acres of freshwater marsh wetlands and 5.6 acres of wetland transitional area on the project site. The BO, however, provides no additional information about those wetlands or even a map of where they would be created. The 2010 BO for the Tarmac King Road Limestone Mine Project is similarly lacking.

We saw limited evidence of short- or long-term monitoring of the HCPs and BOs. The Service has yet to locate for us any of the required monitoring reports for any of the BOs we requested. Further, the Langboard, Inc., HCP demonstrates how the possible lack of monitoring has resulted in a potential violation of the incidental take permit and additional loss of indigo snake habitat. The HCP required habitat restoration and management for indigo snakes, which was prescribed to occur in three “units” on the Langboard property. Unit B (25 acres) was to undergo tree thinning to encourage herbaceous understory growth for gopher tortoise and indigo snakes; this was done by 1999. But between 2010 and 2013, the vegetation of over half of Unit B had been cleared, and by 2014 the cleared area had been further developed (Figure 1).

Figure 1. In 2010, Unit B (blue overlay) was mostly forested (left), but by 2013 the northern half had been cleared (center) and by 2014 the area was further developed (right).

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Most HCPs included monitoring reports, which generally focused on money spent rather than conservation outcomes or progress on those outcomes.1 For example, Florida scrub-jay is often considered an umbrella species for other covered species in HCPs, and mitigation fees are directed to conservation organizations for habitat management or translocations. The monitoring reports, however, do not detail how the money was used, whether scrub-jays responded positively, or if translocations succeeded. None of the monitoring reports addressed indigo snake conservation specifically, even though the species is covered under these HCPs.

We found that most BOs did not acknowledge adverse impacts authorized by prior BOs. We recognize that this problem is not unique to the indigo snake and that the Service has not implemented a system to track cumulative incidental take for most listed species.2 These problems, however, becomes particularly worrisome for species subject to extensive permitting like indigo snakes and Florida scrub-jay.

In light of these gaps in indigo snake conservation, the Service should consider completing the five conservation actions described below within the next two years.

a. Expedite the revised recovery plan

The Service should finish drafting the revised recovery plan for the indigo snake and release it for public comment. Once finalized, the plan should guide not only recovery implementation but also permitting decisions. For example, the Service should direct habitat disturbance away from areas deemed essential to recovery (e.g., any recovery units) and ensure that mitigation commitments under HCPs and BOs align with recovery objectives for the species. If the Service finalizes a robust recovery plan, it should consider whether to resume permitting guidelines for the indigo snake if doing so is likely to generate a “net conservation benefit” (defined later in this letter).

b. Strengthen ESA incidental take permitting standards

The Service should revise the 2013 Standard Protection Measures for the Eastern Indigo Snake to focus on habitat conservation. In an encounter with a live indigo snake, construction personnel are required to “cease clearing activities and allow the live eastern indigo snake sufficient time to move away from the site without interference.” No other avoidance, minimization, or mitigation measures are required unless “the snake is located in a vicinity

                                                            1 Exceptions include Key Deer in Big Pine Key and No Name Key HCP. 2 U.S. Government Accountability Office, THE U.S. FISH AND WILDLIFE SERVICE HAS INCOMPLETE INFORMATION

ABOUT EFFECTS ON LISTED SPECIES FROM SECTION 7 CONSULTATIONS (2009) (“The Service also lacks a systematic method for tracking cumulative take of most listed species.”)

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where continuation of the clearing or construction activities will cause harm to the snake.” Even then, construction is suspended only until “USFWS returns the call (within one day) with further guidance as to when activities may resume.” These measures seem to authorize significant loss of indigo snake habitat, including in areas that may have been essential for recovery. Allowing snakes to move off construction sites does little to conserve the species if their habitats are withered away.

We urge the Service to revise the standard protection measures to adopt stronger avoidance and minimization requirements in areas that the revised recovery plan specifies is essential to recovery. There are several ways to accomplish this goal under the current section 7 regulations, including by setting more sensitive thresholds for “may affect” and “likely to adversely affect” determinations. The Service did exactly that when it recently adopted a one-in-a-million chance of mortality as a trigger for “may affect” and “likely to adversely affect” findings in national level consultations on pesticide registrations.3 We believe the Service has ample discretion to implement section 7 in a similar manner for indigo snakes, without revising its regulations or the Section 7 Handbook.

Stronger conservation requirements under sections 7 and 10 permitting are essential for another reason: to encourage participation in any future permitting guidelines for the indigo snake. Regulated entities have few incentives to seek permits under the Cooperative Agreement if the conservation standard for those permits are considerably more demanding than those for section 7 or 10 permits. The solution to this problem is not to lower standards under the Cooperative Agreement—a move that would stymie recovery. Instead, the standards for sections 7 and 10 permits should improve, so that permittees are more inclined to participate in the Cooperative Agreement. We know that Service staff have considered this strategy and we urge them to implement it.

c. Develop standards for compensatory mitigation and monitor their effectiveness

The Service should develop standards for compensatory mitigation of adverse impacts to indigo snakes and their habitats. We understand that the indigo snake is one of the few species in Florida for which no species-specific mitigation is currently required. The Service should develop mitigation guidelines that focus on preserving, restoring, and managing habitat needed for indigo snake recovery. One option is to establish an equivalent to the approach for Florida panthers, “Panther Habitat Units,” in which the value of habitat lost and gained for the indigo snake would be evaluated in terms of acreage multiplied by habitat quality. We also urge the

                                                            3 U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, and National Marine Fisheries Service, INTERIM APPROACHES FOR NATIONAL-LEVEL PESTICIDE ENDANGERED SPECIES ACT ASSESSMENTS BASED ON THE

RECOMMENDATIONS OF THE NATIONAL ACADEMY OF SCIENCES APRIL 2013 REPORT, available at http://www.epa.gov/espp/2013/interagency.pdf.

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Service not to over-rely on public lands for mitigation and recovery, while allowing habitat on private and other unprotected lands to disappear. Successful recovery requires enough resiliency, redundancy, and representation across the species’ current range, and private lands are likely vital to that goal.

The Service should also monitor whether various mitigation techniques are biologically effective for indigo snakes. When asked about this issue, the Service and the Commission were unable to explain the extent to which the mitigation measures proposed in the draft permitting guidelines were likely to be effective. Given this uncertainty, the Service should establish a system to monitor the biological effectiveness of mitigation measures in section 7 consultations and habitat conservation plans. Posting these documents online, as we suggest below, will enable the public to help with this effort.

d. Incentivize use of detector dogs for surveys

The Service should incentivize the use of indigo snake detector dogs for surveys associated with incidental take permitting. Scientific data suggest that the dogs can be incredibly proficient at identifying indigo snakes and are far more reliable than the five-day transect surveys prescribed in the Service’s 2011 Survey Protocol for the Eastern Indigo Snake, Drymarchon couperi, in North and Central Florida. Improving survey accuracy is a fundamental step to ensuring that occupied habitat is not inadvertently destroyed and that any destruction is adequately offset by mitigation commitments.

e. Post online all current and future ESA permitting documents

The Service should post online all current and future HCPs, BOs, BAs, and associated monitoring reports for the indigo snake. We understand that the Service does not have the resources to carefully monitor the vast majority of permitted activities and that the agency does not formally track the total amount of incidental take it authorizes for most species. By posting permitting documents online, the Service empowers the public to help with this vital work. Indeed, one of the main benefits of permitting under the Cooperative Agreement is that the Commission will post online all incidental take permit applications, final permits, and monitoring documents.4 The Service can offer many of the same benefits by implementing our recommendation, which will also reduce the number of Freedom of Information Act requests for these documents.

                                                            4 The agreement requires that “the Commission provides for real time public access to permit applications, associated information, and permit decisions.”

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II. A clear and robust definition of “net conservation benefit” is essential to the success of the Cooperative Agreement

We believe that the overarching mandate of the Cooperative Agreement is that each permit “must” deliver a “net conservation benefit” for the covered species.5 To date, the Service and the Commission have proposed to define “net conservation benefit” as an improvement over how the Service currently administers the ESA. We disagree with this interpretation, as it could easily allow for a species’ status to continue diminishing through loss of core habitat and populations. The interpretation could also conflict with the requirement in the Cooperative Agreement that “the permitted activity must have no net negative impact on survival and recovery of the species in the wild.”6

The Service should define “net conservation benefit” based on species status—does each permit issued under the Cooperative Agreement move a species closer to recovery? From a biological perspective, this question could be framed as whether a permit results in an increase in the long-term viability of the covered species. Long-term viability is an appropriate benchmark because the Service already uses it in the Interim Recovery Planning Guidance, various delisting rules, and species status assessments. Our proposed definition also aligns squarely with the requirement that “the permit must include impact avoidance, minimization, and mitigation measures in a manner consistent with the conservation (i.e., recovery) of the species.”

The Service also needs a method to determine when a permit meets the definition of net conservation benefit. This method needs to compare the beneficial impacts (conservation actions) with the adverse impacts (incidental take), and then determine whether the “net” result is an increase in long-term viability. To ensure these comparisons are “apples-to-apples,” the Service needs a common currency. We suggest that when comparing habitat lost to habitat gained, the Service should evaluate the number of acres and their conservation value for the species. Panther Habitat Units are an example of this approach. We recognize, however, that it may occasionally be possible to offset habitat loss using conservation actions that are not habitat based. Examples include scientific research, invasive species control, and habitat surveys, especially for poorly-studied species. In those rare situations, the permitting guidelines should prescribe the amount of conservation action needed to offset the dissimilar adverse impact.

III. Selecting species for permitting guidelines

Because the incidental take provision of the Cooperative Agreement is the first of its kind in the nation and closely tracked by other states, setting good precedents—from species selection

                                                            5 Cooperative Agreement between the United States Department of the Interior, Fish and Wildlife Service, and Florida Fish and Wildlife Conservation Commission for the Conservation of Endangered and Threatened Fish and Wildlife, Section 2.d.2. 6 Id.

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through implementation—is paramount. Selecting the appropriate species is the key first step for a successful permitting program. We believe that species selection should follow a three-step process to ensure transparency and consistency:

1. Define the specific objectives of the permitting program. In the section below, we pose a series of questions to help the agencies determine the specific objectives of the permitting program.

2. Collect and examine conservation data. We provide two types of conservation data: the biological and regulatory status of 54 listed Florida species (see attached spreadsheet), and maps showing the past and future threats and opportunities for the species in Florida (see Figure 2 below).

3. Integrate the objectives and the data. Evaluate the data in the context of the objectives to identify the best species for permitting guidelines.

Using this process as a test case, we have identified 12 species potentially suitable for developing permitting guidelines (out of 54 Florida species we evaluated) based on appropriate conservation objectives, including selecting species with recovery criteria and providing maximum improvements in conservation status. These species consist of seven mussels, two beach mice, two birds, and the manatee. We then prioritize the 12 species based on additional objectives including ease of monitoring permitted activities and opportunities to strengthen federal and state incidental take permitting. Using this screening process, the St. Andrew beach mouse appears to be one of the most suitable species to consider for pilot testing permitting guidelines. If the agencies decide on program objectives different from the ones we have used, they may arrive at a different optimal species or list of candidates. Our main objective is to outline a transparent and structured process for the agencies to use as a model for selecting species, rather than to drive your agencies to select the beach mouse or any other particular species. In the subsections below, we describe each of these three steps in greater detail.

a. Step 1: Define the specific objectives of the permitting program

The first step of species selection is to clearly define the specific objectives of the permitting program because species data must be interpreted in light of those objectives. Our experience on the indigo snake stakeholder team was that stakeholders will likely disagree about which objectives are the most important. Some valued species conservation foremost, while others valued streamlined permitting above all else. Each species may have distinct advantages and disadvantages in light of particular objectives.

Below, we pose a (non-exhaustive) series of questions that the agencies and other stakeholders should consider in defining the objectives of the section 6 program. Do they want the program to:

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• Target a species that is receiving inadequate attention or one that is close to recovery?

• Target a species that is more likely to see threats, particularly from development, increase in the coming decade?

• Target a species that will benefit most from private landowner conservation tools such as safe harbor agreements and habitat conservation plans?

• Streamline permitting for the regulated community? For the agencies?

• Target species with easily identifiable habitat features to facilitate compliance monitoring?

• Allow critical habitat to play a key role for encouraging the regulated community to use the section 6 permitting program (e.g., by the Service strictly applying the “adverse modification” prohibition for projects not using the section 6 program)?

• Target umbrella species whose protection indirectly conserves other listed species?

By answering these questions, the agencies can reduce disagreement and uncertainty among stakeholders and more strategically select species for permitting guidelines.

b. Step 2: Collect and examine conservation data

We believe that at least two types of data are important to selecting the best species for permitting guidelines: data on biological status and regulatory history, and geospatial data showing present and future threats to the species, as well as conservation opportunities. Both types of data are described below.

Data on biological status and regulatory history

We evaluated data on all 54 ESA-listed species found in Florida, excluding marine species, and provided the results in the attached spreadsheet. For each species, we believe that the following 16 factors are among the most important (and easily obtainable) to determining whether the species is suitable for permitting guidelines:

• ESA listing status. • Does species have critical habitat? • Date of recovery plan. • Does recovery plan have recovery criteria? • Are recovery criteria objective and quantified? • Does the five-year status review propose revising the recovery plan? • To what extent have recovery actions been implemented? • Date of most recent five-year status review.

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• Does the status review describe the species’ demographic status as improving, no change, or declining (which we denoted as 1, 0, and -1, respectively)? • Does the status review describe threats to the species as decreasing, no change, or increasing (which we denoted as 1, 0, and -1, respectively)? • The number of informal and formal consultations covering the species since 2008. • The number of formal consultations covering the species since 2008. • The number of agencies consulting on the species since 2008. • The number of habitat conservation plans for the species. • The number of safe harbor agreements for the species. • Total federal agency expenditures on the species from 2008 – 2013.

The spreadsheet is also available online at https://goo.gl/RAauJJ

Maps showing threats and conservation opportunities

Because the section 6 permitting program should last many years, analyzing expected future conservation challenges is important for determining the best species for permitting guidelines. The core question is, “Where do we expect the most development or habitat destruction/modification in the coming years?” Depending on the objectives of the program, an ideal species may be one that occurs in areas expected to undergo substantial habitat loss (where the program may have a greater conservation effect), or may be one that occurs in areas that are expected to have minimal habitat loss (may be easier to show success).

To address the spatial components of Florida’s listed species we collected data from the Service7; the State of Florida8; the National Land Cover Database (NLCD) for habitat changes from 2001 – 2011; and the USGS Protected Area Database (PAD) for Florida. We then used CartoDB to present the data in a dynamic map that can be accessed at: https://goo.gl/KP8enh. A static view of two maps we produced is in Figure 2, but we suggest you use the online map for analysis. Each panel exemplifies variation between species and development (current and expected) in Florida—which should be a significant consideration for the permitting program.

                                                            7 ECOS for range maps 8 Office of Economic and Demographic Research (OEDR) for county-level historical (back to 1970) and projected (2015-2040) human population data. http://goo.gl/7Wvtp4

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The geospatial data show that the permitting guidelines are most likely to cover species from south Florida or the panhandle simply because of the high concentration of listed species there. Further, some of the heaviest development is expected in these areas in the coming decades. If targeting a species for maximum conservation benefit is an objective, then the selected species is likely from one of these areas, particularly if land values will increase considerably in the future.

c. Step 3: Integrate the objectives and the data

To illustrate how our model three-step process would work, we first defined five objectives that we deem the most important for the program:

Focus on improving the status of the most imperiled species rather than species at the cusp of downlisting or delisting simply to show success;

Ensure that regulatory restrictions such as the “adverse modification” prohibition are available to improve the conservation outcomes of section 7 consultations, should regulated entities not seek permits through the permitting guidelines;

Figure 2. Compare the county ranges of two listed species in the context of current levels of development and protected areas (left); and the number of listed species (from among the 54 we considered here) per county vs. development expected in 2020 and 2040 (right).  The St. Andrew beach mouse is restricted to coastal areas with very little protected lands while the Everglades Snail Kite’s range overlaps significantly with protected areas.  The detailed projections of urban growth in the right panel shows that considerable development is expected in or adjacent to areas with high concentrations of listed species. 

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Improve permitting efficiency for the Service and the Commission so that resources can be allocated to other conservation efforts;

Make compliance monitoring as effective and as simple as possible; and

Simplify extending the permitting program to other species if possible.

We recommend these objectives based partly on our experience with the indigo snake permitting guidelines. A major hurdle for indigos was the lack of a definition of “net conservation benefit.” One of the best ways to get a good, operational definition of net conservation benefit for any species is by referencing objective and quantitative recovery criteria, which indigos lack. Recovery plan data are among the first factors we considered in our spreadsheet (Step 2) because choosing an alternative species with poor or outdated recovery criteria (29 species) would run into the same problem as the indigo snake.

Another issue that arose while drafting the indigo snake guidelines was the reluctance of the regulated community to use the section 6 program—with higher conservation standards—when section 7 consultation and section 10(a)(1)(B) incidental take permitting require less stringent conservation commitments. The biology of indigo snakes is such that jeopardy conclusions are exceedingly unlikely, and the species does not have designated critical habitat, so adverse modification conclusions are currently impossible. Selecting an alternative species for which jeopardy is effectively impossible and which lacks critical habitat (at least 29 species) will likely leave the Service without leverage9 to encourage the regulated community to use the section 6 program. This in turn means fewer opportunities to enact stronger conservation measures and advance recovery.

Just these first two criteria narrow the field to twelve species, of which seven are mussels, two are beach mice, two are birds, and the manatee. We would rank the manatee and one of the birds, piping plover, lowest on the list because the conservation status of both is substantially better than that of the other ten species. Further, monitoring compliance is likely more difficult for the manatee and the plover because of the nature of the major outstanding threats (e.g., individual human interactions rather than habitat conversion).

The second bird, the Everglades Snail Kite, occurs primarily in areas that are directly protected (the Everglades and surrounding lands) while still being threatened by actions outside of the directly protected areas. Unlike the manatee and plover, the demography of and threats to the kite are worsening, despite over $6 million spent on the kite from 2008-2013. We would rank the kite lower than the remaining nine species because it already benefits from significant

                                                            9 This is contingent on the Service revising their consultation standards to make jeopardy and adverse modification determinations more biologically rigorous.

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conservation attention and because it occurs primarily on public lands (see left panel of Figure 2).

The mussels and the beach mice are generally more similar with respect to our data. Several of the mussels occur in counties expected to see extensive human population growth—and concomitant threat increases—in the coming decades (see right panel of Figure 2). Some threats to mollusks can be monitored by remote sensing (e.g., gravel mining in rivers/streams, or watershed development) while other threats are more difficult to monitor remotely (e.g., water quality parameters). Choosing one of these species for the permitting program would likely simplify development of future permitting guidelines for other mussels—assuming the pilot program is successful—because of their common biological characteristics. Relatively little federal money has been spent on the mussels, averaging $934,000 per species over six years. Among our 16 variables, we did not consider one characteristic that could be a significant drawback when considering how a conservation program is “sold” to the public: mussels are not particularly charismatic.

The St. Andrew and Perdido Key beach mice (SABM and PKBM, respectively) both have very restricted ranges and are threatened by development and climate change. Further, the human population where each species lives is expected to grow dramatically in the coming decades (Figure 2). But the similarities end there. The SABM has received far less funding than the PBKM; the threats to SABM appear to have worsened while they have remained stable for PBKM; the SABM has not been in any HCP while ten HCPs included PKBM; and less than half of recovery actions have been initiated for SABM while more than half have been started for PKBM. Permitting under the section 6 program could have a substantial positive effect for SABM if the Service and the Commission were to implement our definition of “net conservation benefit” and if permitting under sections 7 and 10(a)(1)(B) were strengthened.

In summary, we hope that you concur with the benefits we have identified from using a more structured and transparent method of selecting species for permitting guidelines. We realize that the six objectives we selected might not align perfectly with those your agencies would use. The takeaway message is not that your agencies should use our objectives or select the beach mice, but that the model process we are recommending can lead to better decisions about which species to select for permitting guidelines.