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Interlocal agreement best choice on scrub jays issue

March 26, 2011
Cape Coral Daily Breeze

The cost of environmental regulation has again come home to roost in Cape Coral.

City Council is scheduled on Monday to reconsider a habitat conservation plan that would allow the city to actually use land purchased in the north Cape for a park suitable for festivals and major events.

The property, bought piecemeal through the height of the construction boom for millions of dollars, is home to an estimated three scrub jay "families," a species protected at both the state and federal level.

To use the land for anything other than "minimal" gatherings or passive recreation, the city must now enter into a conservation plan that would provide protected habitat at a 2-1 ratio, meaning to use the 75 acres affected, it must now set aside 150 acres of habitat-specific lands for the continuation of the protected species.

Let us be clear: the city has no choice on the habitat conservation issue, just some options on how to get there.

It can clean up the existing site by removing fill dirt it placed there and replanting a substantial number of scrub oaks. It can convert the festival park site into protected habitat, setting aside all the assembled parcels and creating a protection area at an estimated cost of $1 million - an option that may not be a long-term fix citywide. It can take part in the state's Florida Scrub Jay Compensatory Fund at a cost estimated at $8.1 million.

Or it can enter into an interlocal agreement with Lee County, the option to be considered again Monday.

As proposed, the agreement calls for the city to contribute $465,025 to restore 125 areas within the Alva Scrub Preserve, protected land purchased with countywide tax dollars under the voter-approved 20/20 Conservation Plan. The restoration money would be paid over time, with an initial payment of $80,000 and a final payment due in 2018. The city also would pay $323,000 into a perpetual maintenance fund and would seek grant money, to be paid to Lee County, in hope of off-setting some or all of the costs of this Habitat Conservation Plan.

In exchange, the city would be able to develop the entire 213 acres of what it hopes will become Festival Park, including the 75 acres affected. It also would be off the hook for potential fines and restoration mandates associated with violations of the Endangered Species Act as well as the potential for private lots owners to be forced to pay a fee of up to $25,000 per standard, double lot building site should the existing scrub jay families reproduce and extend their range.

It's a pricey proposition - the reason city council has, to date, opted for the do-nothing approach with some board members commenting that perhaps the birds might die, thus mitigating the problem the cheapest way possible.

We point out that that's not quite accurate as the federal and state requirements are not the same as those associated with, say bald eagle nests, or tortoise burrows. With scrub jays, the policies are less about protecting individual birds than their very specific habitat, the destruction of which has been the cause of the species' decline.

Scrub jays are indigenous only to Florida. They require a particular type of natural habitat that is rapidly disappearing throughout the state due to development - native "scrub" lands comprised of specific plants, including scrub oaks, which provide the acorns the bird families store for winter forage.

Unlike species like the burrowing owl, which can adapt and nest in residential neighborhoods, the scrub jay requires these wilds, hence the emphasis on habitat conservation rather than bird relocation or nest protection.

We can debate whether the small birds that mate for life and raise their young in narrowly defined territories they seldom leave are "worth" the cost asked here.

But fighting the feds on this one will make the on-going battle over whether to re-install the barrier at the North Spreader or implement a water quality mitigation plan look like child's play. Just multiply the number of local and regional environmental groups involved in the canal barrier debate by those at the state and national level, all with the full weight of the federal hammer behind them.

We'll not enter into that fray and recommend that the city not, either.

Meanwhile, for those who suggest Cape Coral continue on with its do-nothing approach, hoping for dead birds, a blind eye on the part of regulators or, perhaps, a visit from a benevolent Mother Nature with birdie-flight tickets in hand, we have a suggestion: Talk to the city of North Port.

The Sarasota County community to our north had a nice little scrub jay habitat map laid out in accordance with state and federal rules and regulations. As defined, protected habitat largely bordered the Myakkahatchee Creek, property already owned by the city and designated as passive and protected parkland, so there was little worry.

Hurricane Charley, though, scattered the birds hither and yon. The new map - required by regulators due to new nesting territories - expanded the protected habitat into neighborhoods very similar to the north Cape. Lot owners hoping to build - this was during the boom - found themselves dealing with mitigation and conservation requirements based on whether their property was in a green, yellow, or red zone, with red lots designated as protected habitat, although for most, there was nary a nest - or scrub jay - anywhere nearby.

It's not a scenario Cape Coral wants to risk.

This problem is not going away. Resolution is not going to be free. The only "choice" is to pick the best, most cost-effective option.

That's the pay-as-you-go interlocal agreement with Lee County, already approved by those who hold the regulation manuals in hand.

We urge council to approve this agreement on Monday. It's time to get the issue resolved.

- Breeze editorial



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