Purpose and Intent, Definitions, Procedures for Listing, Delisting and Reclassifying Endangered, Threatened and Species of Special Concern, Designation of Endangered Species; Prohibitions; Permits, Designation of Species of Special Concern; ...

FISH AND WILDLIFE CONSERVATION COMMISSION
Freshwater Fish and Wildlife

Rule No.: RULE TITLE
68A-27.0001: Purpose and Intent
68A-27.001: Definitions
68A-27.0012: Procedures for Listing, Delisting and Reclassifying Endangered, Threatened and Species of Special Concern
68A-27.003: Designation of Endangered Species; Prohibitions; Permits
68A-27.005: Designation of Species of Special Concern; Prohibitions; Permits
68A-27.007: Permits and Authorizations for the Take of Florida Endangered and Threatened Species

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 36 No. 2, January 15, 2010 issue of the Florida Administrative Weekly.

68A-27.0001 Purpose and Intent.

(1) The purpose and intent of this rule chapter, in concert with an objective that lawful nature-based recreational activities may be managed to be compatible with such species protection measures, is to conserve or improve the status of endangered and threatened species in Florida to effectively reduce the risk of extinction through the use of a science-informed process that is objective and quantifiable, that accurately identifies endangered and threatened species that are in need of special actions to prevent further imperilment, that identifies a framework for developing management strategies and interventions to reduce threats causing imperilment, and that will prevent species from being threatened to such an extent that they become regulated and managed under the federal Endangered Species Act of 1973, as amended, 16 U.S.C. §1531 et seq.

(2) No change.

(3) The protections of Tthis rule chapter is shall not intended to preclude prohibit lawful hunting, fishing, boating or other nature-based recreational uses, even if activities when those activities result in the mere annoyance or disturbance of Florida Endangered or and Threatened Species, when such uses are conducted in a manner that does not constitute take as defined in Rule 68A-27.001, F.A.C.

(4) through (5) No change.

68A-27.001 Definitions.

When used in this rule chapter, the terms and phrases listed below have the meaning provided:

(1) Florida Endangered and Threatened Species – species of fish or wild animal life, subspecies or isolated populations of species or subspecies, whether vertebrate or invertebrate, that are native to Florida which are endangered and threatened under Commission rule as either: (a) Federally-designated Endangered and Threatened species by virtue of designation as endangered or threatened by the United States Departments of Interior or Commerce under the Endangered Species Act, 16 U.S.C. § 1531, et seq. and rules thereto or (b) as a State-designated Threatened species. Florida Endangered and Threatened species retain their status regardless of subsequent changes in scientific nomenclature or subsequent identification of species or subspecies within the species listed.

(2) No change.

(3) State-designated Threatened Species – As designated by the Commission, species of fish or wild animal life, subspecies, or isolated population of a species or subspecies, whether vertebrate or invertebrate, that are native to Florida and are classified as Threatened as determined by paragraph (a), (b), (c), (d), or (e) below in accordance with Rule 68A-27.0012, F.A.C. The designation of a species as threatened shall include all subspecies unless stated otherwise in Commission rule.

(a) Reduction in population size based on any of the following:

1. No change.

2. An observed, estimated, inferred or suspected population size reduction of at least 30% over the last 10 years or three generations, whichever is the longer, where the reduction or its causes may not have ceased or may not be understood or may not be reversible, based on (and specifying) any of sub-subparagraph (a)1.a. to (a)1.e., above.

3. A population size reduction of at least 30%, projected or suspected to be met within the next 10 years or three generations, whichever is the longer (up to a maximum of 100 years), based on (and specifying) any of sub-subparagraph (a)1.b. to (a)1.e., above.

4. An observed, estimated, inferred, projected or suspected population size reduction of at least 30% over any 10 year or three generation period, whichever is longer (up to a maximum of 100 years in the future), where the time period must include both the past and the future, and where the reduction or its causes may not have ceased or may not be understood or may not be reversible, based on (and specifying) any of sub-subparagraph (a)1.a. to (a)1.e., above.

(b) Geographic range in the form of either subparagraph (b)1. (extent of occurrence) or (b)2. (area of occupancy) or both:

1. Extent of occurrence estimated to be less than 20,000 square kilometers (7,722 square miles), and estimates indicating at least two of a.-c.:

a. through c. No change.

2. Area of occupancy estimated to be less than 2,000 square kilometers (772 square miles), and estimates indicating at least two of a.-c.:

a. through c. No change.

(c) Population size estimated to number fewer than 10,000 mature individuals and either:

1. An estimated continuing decline of at least 10% within 10 years or three generations, whichever is longer, (up to a maximum of 100 years in the future); or

2. A continuing decline, observed, projected, or inferred, in numbers of mature individuals and at least one of the following (a.-b.):

a. through b. No change.

(d) through (e) No change.

(4) Take – to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct. The term “harm” in the definition of take means an act which actually kills or injures fish or wildlife. Such act may shall include significant habitat modification or degradation where it acts that actually kills kill or injures injure wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. The term “harass” in the definition of take means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by. “Harass” shall include annoying it to such an extent as to fish or wildlife only if the annoyance creates the likelihood of injury by significantly disrupt disrupting normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.

(5) No change.

(6) Management plan – a document approved created or adopted by the Commission with the purpose of providing guidance for the management of the species. The intent of management plans is to provide guidance to conserve species so that their status improves and the species can be removed from the Florida Endangered and Threatened Species list as well as to provide guidance to conserve the species so that they will not again need to be listed. It may shall be a comprehensive, single-species management plan; or a document involving a multi-species plan; or a document referencing applicable indicating the specified rule or rules; or a document referencing reference to a federal recovery plan that will be used for guidance in the management of the species. The management plan shall address biological status; identify measurable conservation objectives, including a time frame; identify any exempt activities if appropriate; identify conservation actions; identify incentives if appropriate; recommend rules for species if warranted; identify permitting standards for incidental and intentional take to be established in rule; consider and evaluate address anticipated economic, ecological, and social impacts of implementing or not implementing the management plan including a projection of costs of implementing the management plan and identification of the funding sources for the costs as determined through involvement of affected stakeholders and public input; and include a revision schedule; and include a revision schedule. For data deficient species, management plans may consist of an acknowledgement that insufficient data exist to develop and implement species management and these plans may simply identify research needed to determine species status and management needs.

(7) through (10) No change.

68A-27.0012 Procedures for Listing and Removing Species from Florida’s Endangered and Threatened Species List.

(1) Federally-designated Endangered and Threatened Species. Species which are native to Florida and which are designated as Endangered or Threatened under the Federal Endangered Species Act (ESA), 15 U.S.C. § 1531 et seq. and rules thereto will be listed by the Commission as a Florida Endangered and Threatened Species by virtue of the federal designation. If a species native to Florida is added or reclassified under the ESA, the species shall be so listed or reclassified in the Florida Endangered and Threatened Species rule pursuant to the notice provisions of Subsection Section 120.54(6), F.S., relating to adoption of federal standards. Before species that have been removed from the ESA are removed from the Florida Endangered and Threatened Species rule, they shall receive a biological status review according to subparagraph (2)(c)2., to determine if the species warrants listing as a state-designated species. Prior to any species being removed from the Florida Endangered and Threatened Species list, the Commission shall develop a management plan that is intended to maintain or enhance the conservation of that species.

(2) State-designated Threatened Species.

(a) Except as provided Notwithstanding the provisions contained in this subsection (1) above, these procedures shall not apply be applied to the following species:

1. Federally-designated Endangered and Threatened species, except when those species are scheduled to be removed from the federal list,

2. Species not native to Florida,

3. Harvested species that are monitored through periodic stock assessments or other techniques and are the subject of any rule in Title 68, F.A.C., that allows harvest.

4. Species whose occurrence in Florida is only accidental.

(b) Requesting the evaluation of a species for listing or removal from the State-designated Threatened species list.

1. through 2. No change.

3. Incomplete species evaluation requests, including requests which do not include or reference the best scientific and commercial data available, will be returned to the requestor with insufficiencies clearly noted in writing. Corrected species evaluation requests may be resubmitted for consideration outside the submission time period identified in 1. above if resubmitted within 30 days of being returned. Corrected species evaluation requests resubmitted more than 30 days after being returned must be submitted within the time period identified in subparagraph 1., above.

4. through 5. No change.

(c) Determining when changes in if listing status are is warranted.

1. through 2. No change.

(d) through (e) No change.

(3) Criteria for removal from the State-designated Threatened species list are as follows:

(a) Species listed as State-designated Threatened species as of the effective date of this rule: Management plans will be developed for the species listed in this rule and the species will be evaluated under the listing criteria in subsection 68A-27.001(3), F.A.C. After a biological status review is conducted and a management plan is approved, the Commission will decide whether a species should remain listed when the species is Species that are determined to be data deficient pursuant to the Guidelines for Using the IUCN Red List Categories and Criteria shall not be removed from the State-designated Threatened species list.

(b) All State-designated Threatened species listed after the effective date of this rule: Individuals may submit species evaluation requests for removing species from the list as described in the species evaluation request process in paragraph (2)(b). Species shall be removed from the State-designated Threatened species list if they do not meet any of the criteria in Rule 68A-27.001, F.A.C., in accordance with the Guidelines for Using the IUCN Red List Categories and Criteria.

(4) No change.

68A-27.003 Florida Endangered and Threatened Species; Prohibitions.

(1) Federally-designated Endangered and Threatened species:-

(a) through (b) No change.

(c) Fish:

1. Gulf sturgeon (Acipenser oxyrinchus [=oxyrhynchus] desotoi)(T),

2. through 4. No change.

(d) No change.

(e) Reptiles:

1. American alligator (Alligator mississippiensis)(T[S/A]); Listed only because of similarity of appearance to the American crocodile,

2. through 5. No change.

6. Green sea turtle seaturtle (Chelonia mydas)(E),

7. Hawksbill sea turtle seaturtle (Eretmochelys imbricata)(E),

8. Kemp’s ridley sea turtle seaturtle (Lepidochelys kempii)(E),

9. Leatherback sea turtle seaturtle (Dermochelys coriacea)(E),

10. Loggerhead sea turtle seaturtle (Caretta caretta)(T),

11. No change.

(f) Birds:

1. No change.

2. Bachman’s wood warbler (Vermivora bachmanii)(E),

3. through 8. No change.

9. Kirtland’s wood warbler (Dendroica kirtlandii)(E),

10. through 12. No change.

13. Whooping crane (Grus americana)(XNE); Listed as experimental population in Florida,

14. No change.

(g) Mammals:

1. through 4. No change.

5. West Indian Florida manatee (Trichechus manatus latirostris)(E),

6. through 11. No change.

12. Key deer (Odocoileus virginianus clavium)(E). No person shall feed Key deer (Odocoileus virginianus clavium) by hand or by placing any food that serves to attract such species,

13. through 14. No change.

15. Lower Keys marsh rabbit (Sylvilagus palustris hefneri)(E),

16. through 20. No change.

21. Silver rice rat (Oryzomys argentatus)(E),

22. through 24. renumbered 21. through 23. No change.

(h) through (j) No change.

(k) Mollusks:

1. Chipola slabshell (mussel) (Elliptio chiplolaensis)(T),

2. Fat threeridge three-ridge (mussel) (Amblema neislerii)(E),

3. Gulf moccasinshell (mussel) (Medionidus penicillatus)(E),

4. Ochlockonee moccasinshell (mussel) (Medionidus simpsonianus)(E),

5. Oval pigtoe (mussel) (Pleurobema pyriforme)(E),

6. Purple bankclimber (mussel) (Elliptoideus sloatianus)(T),

7. Shinyrayed pocketbook (mussel) (Lampsilis subangulata)(E),

8. Stock Island tree snail (Orthalicus reses) [not incl. nesodryas])(T).

(2) State-designated Threatened species.-

(a) through (c) No change.

(d) Reptiles:

1. Florida brownsnake brown snake (Storeria victa); lower Keys population only,

2. No change.

3. Gopher tortoise. (Gopherus polyphemus). The Gopher tortoise (Gopherus polyphemus) shall be afforded the protective provisions specified in this paragraph. No person shall take, attempt to take, pursue, hunt, harass, capture, possess, sell or transport any gopher tortoise or parts thereof or their eggs, or molest, damage, or destroy gopher tortoise burrows, except as authorized by Commission permit or when complying with Commission approved guidelines for specific actions which may impact gopher tortoises and their burrows. A gopher tortoise burrow is a tunnel with a cross-section that closely approximates the shape of a gopher tortoise. Permits will be issued based upon whether issuance would further management plan goals and objectives.

4. through 7. No change.

(e) through (g) No change.

(h) Insects:

Miami blue butterfly (Cyclargus [ = Hemiargus] thomasi bethunebakeri). The Miami blue butterfly (Cyclargus [ = Hemiargus] thomasi bethunebakeri), shall be afforded the protective provisions specified in this subsection. No person shall take, harm, harass, possess, sell, or transport any Miami blue butterfly (Cyclargus [ = Hemiargus] thomasi bethunebakeri), or parts thereof or their eggs, larvae or pupae except as authorized by permit from the executive director. Permits will be issued based upon whether issuance would further management plan goals and objectives.

68A-27.005 Designation of Species of Special Concern; Prohibitions; Permits.

(1) During the moratorium created in subsection 68A-27.0012(4), F.A.C: Management plans will be developed for the species listed in this rule and the species will be evaluated under the listing criteria in subsection 68A-27.001(3), F.A.C., for listing as a State-designated Threatened species. If the Commission determines that the species warrants listing as a State-designated Threatened species, final Commission action on the listing shall include removing reference to the species from this rule. If the species evaluation demonstrates the species does not qualify for listing as a State-designated Threatened species, the Commission will remove the species from this rule upon completion of a management plan. After a biological status review is conducted and a management plan is approved, the Commission will decide whether a species should remain listed when the species is Species that are determined to be data deficient pursuant to the Guidelines for Using the IUCN Red List Categories and Criteria shall not be removed from the Species of Special Concern list.

(2) No change.

68A-27.007 Permits and Authorizations for the Take of Florida Endangered and Threatened Species.

(1) Permit requirements for the taking of Federally-designated Endangered and Threatened Species: The purpose of this subsection is to eliminate the need for both federal and state permits for take and incidental take of Federally-designated Endangered and Threatened Species. Activities that result in take or incidental take of Federally-designated Endangered and Threatened Species do not require a permit from the Commission when authorized by the U.S. Fish and Wildlife Service or the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service pursuant to 16 U.S.C. Section 1539, or other authorization provided by 16 U.S.C. Section 1536. The Commission permit or other authorization will only be issued to take or incidentally take Federally-designated Endangered and Threatened Species if specifically authorized under a written agreement or regulatory delegation by the U.S. Fish and Wildlife Service or the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service provided that the issuance shall not be inconsistent with federal law. The incidental take of a Federally-designated Endangered and Threatened Species that results from activities which the U.S. Fish and Wildlife Service or the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service has determined in writing does not require a permit under 16 U.S.C. Section 1539, or other authorization provided by 16 U.S.C. 1536 does not require a permit under this section and is not prohibited under Rule 68A-27.003, F.A.C.

(2) The permit requirements for the taking of a State-designated Threatened species are as follows:

(a) Intentional take: The Commission may issue permits authorizing intentional take of Florida State-designated Threatened species for scientific or conservation purposes which will benefit the survival potential of the species except for species that have a permitting standard for intentional take in Rule 68A-27.003, F.A.C., and then that standard will apply. For purposes of this rule, a scientific or conservation purpose shall mean activities that further the conservation or survival of the species, including collection of scientific data needed for conservation or management of the species. The following factors shall be considered in determining whether there is a scientific or conservation purpose which will benefit the survival potential of the species;

(b) Incidental take: The Commission may issue permits authorizing incidental take of State-designated Threatened species upon a conclusion that the following permitting standards have been met: the standards for species when contained in Rule 68A-27.003, F.A.C., take precedence; for blackmouth shiner, striped mud turtle, Florida mastiff bat, and pillar coral, a permit may be issued if the permitted activity clearly enhances the survival potential of the species; for activities and all proposed mitigation will provide an overall other State-designated Threatened species, the permit may be issued when there is a scientific or conservation benefit and only upon a showing by the applicant that the permitted activity will not have a for the species and no negative impact on the survival potential of the species. Factors which shall be considered in determining whether a permit may be granted are:

1. through 7. No change.

(c) Land management activities that benefit wildlife or agriculture, as defined in Section 570.02, Florida Statutes, conducted in accordance with Department of Agriculture and Consumer Service’s adopted best management practices and that are not inconsistent with Management Plans for species as defined in this rule chapter are authorized and do not require a permit authorizing incidental take despite any other provision of this section.

(d) Agriculture, as defined in Section 570.02, Florida Statutes, conducted in accordance with best management practices (BMPs) adopted by the Department of Agriculture and Consumer Service pursuant to Section 403.067 and Section 597.004, Florida Statutes, is authorized and does not require a permit authorizing incidental take despite any other provision of this section. The Commission will work cooperatively with the Florida Department of Agriculture and Consumer Services, landowners, and other stakeholders to legislatively authorize, develop, and adopt BMPs to protect wildlife species within three years of the effective date of these rules.

(e)(d) Wildlands fire suppression actions necessary to ensure public safety during emergency circumstances, including but not limited to, setting counterfires, removing fences and other obstacles, digging trenches, cutting firelines, or using water from public and private sources are authorized and do not require a permit authorizing incidental take despite any other provision of this section, unless specified in management plans for species as defined in this rule chapter.

(f)(e)Take of a marine organism as defined in Chapter 68B-8, F.A.C., and life identified as a Florida Endangered and Threatened Species will be permitted pursuant to the provisions of Chapter 68B-8, F.A.C.

No other changes were made to the rule amendments as proposed.