What is Gopher Tortoise?
A comprehensive understanding of gopher tortoise laws in Florida begins with an understanding of gopher tortoises themselves. Gopher tortoises are a state threatened species endemic only to the southeastern United States and are one of only two land tortoises native to North America. Gopher tortoises generally construct and occupy burrows or holes (sometimes 40 feet long or longer) for approximately 80% of their lifetime, only emerging from the burrow to forage for food and mate. Since the burrows are often the only shelter in the area, they provide refuge for many other species such as rabbits, amphibians, lizards and other reptiles, and even insects helpful to the ecosystem such as the red imported fire ant.
After several studies concluded that gopher tortoises were becoming too sparse in many areas of Florida, in 1991 Florida enacted legislation that made gopher tortoises a state threatened species. The State advises that there are only around one million left in the wild , and that they are disappearing rapidly from the northwest panhandle and most of Florida’s interior, with south and central Florida providing many of the last true safe havens. Sea Turtle Conservancy also reports that gopher tortoises are susceptible to theft and poaching both in the wild and while being illegally kept as pets.
Florida law generally prohibits the harassment, harm, pursuit, hunting, shooting, wounding, killing, possession, sale, delivery, offer for sale, transportation, export, import, or purchase of gopher tortoises and tortoise parts unless authorized by rule of the FWC.
The FWC’s plan for managing gopher tortoises provides a means for accelerating the effort to conserve gopher tortoises in Florida, lessening the burden on gopher tortoise habitats within urban landscapes and improving the prospects for the species in Florida’s remaining rural habitats through restoration and management initiatives.
Florida’s Gopher Tortoise Conservation Laws Explained
Approximately 124 plants and animals are listed as threatened or endangered in Florida, including the gopher tortoise, according to the Florida Fish and Wildlife Conservation Commission. The conservation status of a species impacts what activities can be legally conducted on private property and what property owners can legally do to control pests.
State statutes that protect the gopher tortoise include: the Florida Endangered and Threatened Species Act (FETSA), the West Indian Manatee Protection Act, and the Bald Eagle Management Plan. These laws govern the gopher tortoise habitat or species statewide.
The Florida Gopher Tortoise Management Plan regulates the management of gopher tortoises and their burrows. It was created by the Florida Fish and Wildlife Conservation Commission and the Florida Department of Environmental Protection, as the primary state agencies responsible for the conservation of gopher tortoises.
The Wildlife Conservation Commission took this step to strengthen gopher tortoise conservation in Florida, and encourage the use of best management practices by landowners and land managers.
The Gopher Tortoise Management Plan adopts the best management practices designated by the U.S. Fish and Wildlife Service. The management practices created by the wildlife service apply to Florida and Alabama. The wildlife service says that Florida’s plan went beyond their own by including a whole-range population survey methodology of managing gopher tortoises.
The Permit or License Needed
Every individual or entity wishing to engage in land clear cutting or other activities that disturb the area where any tortoise burrow exists must first apply for and obtain an "Incidental Take Permit" ("ITP"). In order to obtain an ITP, the applicant must develop a "Conservation Management Plan". The conservation management plan is intended to offset the impact of any development or activity on gopher tortoises or their burrows.
Florida law provides that the Florida Fish and Wildlife Conservation Commission (FWC) may not issue an ITP "unless the applicant demonstrates that the take of gopher tortoise is incidental to, and not the purpose of, the activity for which the permit is requested." Under the statute, the FWC is required to establish criteria for the conservation management plan. The conservation management plan must provide for the conservation of the affected gopher tortoises in perpetuity. The FWC requires a qualified biologist to prepare of the conservation management plan. The plan is submitted along with the application for the incidental take permit. The ITP application and the conservation management plan are submitted to FWC for review and approval. After the application is approved, the landowner may proceed with the activity assuming all of the terms of the approved plan are followed. You can review the ITP application and Florida’s required information by following this link.
Involvement of Government and Administrative Agencies
In Florida, four primary agencies are responsible for the regulations and enforcement of Florida’s gopher tortoise laws: the Florida Fish and Wildlife Conservation Commission (FWC), the Army Corp of Engineers (ACOE), the Florida Department of Environmental Protection (DEP) and local governments (county and city levels).
The FWC is the principal state agency in charge of gopher tortoises and their protection, regulation and management as well as creating policies which impact these activities. It is also the wildlife agency largely responsible for permitting related to gopher tortoises. The FWC issues permits for the construction, operation and maintenance of highway projects. FWC also issues permits for most activities conducted on state lands, such as the Metro Rail and for timber harvest activities on state lands. It is the lead agency for all programs designed to offset the loss of gopher tortoises through active management and habitat improvements. Finally, FWC has the responsibility to enforce gopher tortoise regulations by using a variety of enforcement tools to ensure compliance with gopher tortoise regulations and permit conditions.
The ACOE permits development activities in wetlands and waters of the U.S., including gopher tortoise habitat. Federal law, namely the Clean Water Act, Sec. 404, does not specifically address gopher tortoises but does include language addressing both endangered species and state threatened species, mandating special considerations. Section 7 of the Endangered Species Act specifically requires federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) when they are involved in a federal action that could affect a listed endangered or threatened species or its critical habitat. This initiative is done to ensure that the federal action will not adversely impact the existence of the species or the habitat known as "consultation." In most circumstances, the FWS and ACOE use the Biological Opinion to provide guidance to collaborative projects that may impact an endangered species; such as the gopher tortoise.
The DEP has coordinated off-site gopher tortoise mitigation banks. It does not directly handle gopher tortoise permitting or enforcement actions related to gopher tortoises. Its officers focus on wild areas.
Local jurisdictions do not have responsibility for the use of state-owned uplands in the same manner as the state agencies do, but have a large role in the implementation of the law. Local governments build, maintain, and operate roads and highways. Local governments should, when possible, undertake the preparation of properly-documented habitat management plans for gopher tortoises on the roads they have jurisdiction over. When possible, gopher tortoises should be relocated instead of allowing them to remain and be impacted.
Potential Penalties for Violation
Violations of the gopher tortoise protection laws carry both administrative and criminal penalties. Individuals charged with a violation are subject to a fine of up to $500 for each violation, as well as administrative costs, due care costs, and the amount of the cost estimated by the Florida Fish and Wildlife Conservation Commission ("FWC") to be incurred in undertaking any remedial activities in response to the violation . The FWC may also issue an order requiring the violator to undertake written remedial activities as stated in the order.
Criminal penalties for noncompliance include up to one year in jail and a $1,000 criminal fine per violation. Further, for persons found to be undeveloped property without obtaining the required gopher tortoise permit, there is optional mandatory mitigation of the habitat on the undeveloped property or on an impacted property up to a 1-to-1 mitigation ratio.
Conservation and Community Involvement
Residents and conservationists play a critical role in the protection of gopher tortoises in Florida, where development encroaches more each day. Active conservation efforts can be both large and small, and any contribution can have a positive effect on the survival of these threatened reptiles. From conducting tortoise surveys to ensuring proper habitat management and participating in nest protection programs, there are many ways to get involved.
For neighborhoods undergoing redevelopment or new development, it is wise to consult with consultant wildlife professionals to determine if gopher tortoises are present and the extent to which they must be protected. Once known, experts can determine the prevalence of tortoises on the property, create mitigation plans that can be incorporated into legal plans, and discuss requirements, such as burrow fall and weed removal to facilitate relocation or site protection.
Local wildlife rescue organizations also have initiatives to protect gopher tortoises on a smaller scale. For example, they may monitor gopher tortoise nests and relocate eggs to artificial nests until the young hatch. To learn more, contact your local wildlife rescue center or wildlife office.
Small-scale community conservation efforts can also make a difference. Increasing habitat area for gopher tortoises by planting their favorite food plants and controlling invasive nonnative plants can help provide much needed protection for these threatened reptiles. Additionally, public education about gopher tortoises can promote understanding and dispel commonly held misconceptions about these long-lived residents of the Sunshine State.
Successful Cases and Examples
The strength of Florida’s gopher tortoise laws can be seen in a few notable case studies. One such example is in Monroe County, where the Monroe County School Board’s Craig Carey quickly and effectively expanded the typical tortoise survey process. After conducting the baseline survey for a proposed middle school site, Mr. Carey located a gopher tortoise nest. To avoid delaying construction, he immediately contacted the Florida Fish and Wildlife Commission ("FWC"), where a permitting arrangement was formulated that would allow for a streamlined relocation process.
The project manager was issued a FWC Scientific Collecting Permit, which authorizes him to capture and relocate the gopher tortoises involved in the project at issue in accordance with FWC guidelines, provided that the project manager allows the new owner of the relocation site to be permitted at the time of the issuance. The landowner then registers its gopher tortoise recipient site on the statewide Gopher Tortoise Strategic Habitat Conservation Assessment Tool ("S-HAT-CAT"), which provides guidance about the amount and distribution of gopher tortoise subpopulations within a recipient site that may be needed to form viable gopher tortoise populations.
Using the S-HAT-CAT map, Mr. Carey identified a site with adequate habitat and gopher tortoise burrows. FWCED approved this site as a recipient site, issued the appropriate relocation permit authorizing the relocation and offered transportation assistance at no charge. The construction company took over all travel for the tortoises (FWCED simply directed them to the sheds and nests); transportation permits are issued free of charge. When the tortoises arrived at their new site, the reintroduction permit was signed, and the tortoises were released.
One size does not fit all regarding gopher tortoise mitigation. As can be seen from the efforts in Orange County and Lee County, the circumstances of each project were different, but both found successful outcomes. In Orange County, the Gopher Tortoise Working Group, made up of gopher tortoise experts, advocates, and FWC employees, was able to eliminate gopher tortoise relocation as mandatory for most residential developments. They achieved this through the creation of the Orange County D8 Permit program that allows net gain projects, offsets for development impacts, in addition to other BMPs, to qualify for the carrying out of the 2012 imperiled species management plan in Orange County.
Hernandez v. commissioner of transportation demonstrates the power of citizen action in prompting regulatory change. In this case, the citizen group, Save the Tortoises, with the help of the Center for Biological Diversity, petitioned the U.S. Fish and Wildlife Service (USFWS) to list gopher tortoises as endangered under the federal Endangered Species Act. The USFWS eventually agreed to list gopher tortoises as threatened.
The Florida Wildlife Conservation Commission has also been remarkably diligent in its commitment to hiking fees on hunting tags and fishing licenses from $60 to $300 to fund gopher tortoise conservation efforts after rebuffing citizen efforts to have the tax liens on developments for gopher tortoise conservation.
Future Path and Potential Issues
The future for the gopher tortoise in Florida is yet unknown. Given that the State’s populations of this threatened species continue to decline, additional opportunities for growth would hopefully significantly increase its status to "least concern" prior to its 2050, goal. Obstacles to populations growth include increasing development within the State which could lead to habitat loss where management is inactive; fires that can destroy both tortoise burrows and their habitat (although these are generally beneficial to tortoise populations); as well as other nuisance species that forage on gopher tortoise eggs and larger snakes that prey on their hatchlings.
Although gopher tortoises are federally protected due to their population declines, federal laws may become more lenient over time. For example, the United States Fish and Wildlife conservation program , United States Department of the Interior, recently amended its regulations governing the process for designating critical habitat for threatened and endangered wildlife species. 84 FR 45020 (Aug. 27, 2019). This amendment, among other things, clarifies the circumstances under which areas can be designated as habitable for species with the potential to be adversely impacted if not otherwise protected. 86 FR 26485 (May 13, 2021) (codification of 84 FR 45020, supra). Further, while the federal Endangered Species Act (ESA) continues to recognize threatened and endangered species, the private property and land use issues that occur when a listed species is detected on a tract of land may lead to additional ESA reforms in the future. Such reforms could curtail the number of parcels designated as habitable or limit the extent of those designated parcels.