Endangered & Protected Species In Land Development
Endangered & Protected Species
(In case you are wondering, the picture is of spawning salmon)
Awareness of endangered and protected species is an essential component in the acquisition and ownership of real property. Sometimes even with proper advance knowledge and solid planning the unexpected can occur. That’s what happened to me when a pair of bald eagles decided to move into my unfinished project.
Unwanted guests:
I was doing road construction in Phase III of a large residential land project in the Pacific Northwest. This phase had a well-defined steep slope running on the west edge of the project for about ½ mile. The land had been logged two times before, one time in the 1930’s and once by me. However, there were dozens of old growth trees still left on the steep slopes and they had never been part of either logging operation.
Eagles like to pick the high spots for nesting and these old boy trees were perfect habitat for them to set up shop. Before “what came next” happened I had been pretty happy about the project. Most of the cost basis had been recaptured on Phases I and II, so I would be in the green soon and ready to start dishing out money to the investors, or so I thought.
The best laid plans…
One unforgettable day I got a Certified Letter from my state Department of Fish & Wildlife telling me that a bald eagle nest had been discovered on Lot 114 of Phase III. After carefully reading the letter and then changing my underwear I knew the project was in trouble. I called the guys doing the road grading and stopped all construction activity since this seemed the best course of action. I didn’t know the scope of the problem and sure as heck didn’t want to unintentionally make it worse.
For the record, I had done my environmental due diligence before acquisition and in the pre-application phases, but these eagles were new residents. The new nest had been located by the state through routine overflying in that part of the county.
How I handled this problem:
It’s a 4-month story, but through multiple onsite meetings with the state I was able to comply with some very strict requirements to protect the eagle nest and surrounding habitat. First, I had to geographically locate the nest tree by survey. Then, under the state’s guidance I created a Bald Eagle Management Plan that included a buffer around the nest tree that was composed of 3 concentric circles starting at the base of the tree, then extending out for several hundred feet around it. These zones were off limits to any impacts including clearing, construction, or even foot traffic in the affected area. After state sign-off the approved Management Plan was recorded with the county and Lots 82, 83 and 114 were officially subject to it.
I was lucky since the perimeter of the outer circle in the Management Plan did not touch the building envelope of Lot 114, which was the most impacted of the three lots. I got out of this one because it was relatively easy to comply with the federal requirements overseen by the state. If the nest had been in a different area, compliance might have required me to relocate roads and pull underground infrastructure, so by dumb luck the eagles were kind to me.
My Sellers Disclosure Statement:
When the project was marketed, I knew I had to disclose the presence of the eagle nest and the Management Plan with the prospective Buyers. The section below was Specific Term 6, in an addendum to the Purchase & Sale Agreements for Lots 82, 83 and 114. It has been slightly edited for confidentiality:
6. Bald Eagle Management. A Bald Eagle’s nest has been discovered in a tree to the immediate west of the western boundary of Lot 114, as shown on the face of the record of survey recorded under ________County Auditors File # _________. All use, development, improvement or other modification of or activity on any lot shown on the face of the survey (each a "lot") shall comply with the terms and requirements of all Federal, State, County and Local Codes, Rules, Regulations and Laws that relate to the protection of Bald Eagles and their habitat, including without limitation that certain Bald Eagle Management Plan, dated February __, 0000, specifically referencing Lots 82, 83, and 114, and any successor plans (collectively, the Eagle Protection Rules). It is the exclusive responsibility of any and all buyers of a lot to investigate all Eagle Protection Rules prior to the purchase of a lot, and to fully comply with all Eagle Protection Rules in connection with the use and improvement of any lot. Seller makes no representations or warranties concerning the meaning, application or effect of the Eagle Protection Rules.
Here's how not to do it:
Years after the above experience I picked up a project for a large national builder in Florida. It was a pretty straight-forward land project except for one thing. The previous Project Manager had hired a large construction firm out of Miami for the clearing and dirt work. Somehow the Project Manager and the construction guys failed to notice that there was a Recorded Conservation Easement protecting a bald eagle nesting tree and a significant zone around it.
Of course, you can figure it out what came next. When clearing the area, they blasted right into the conservation easement and whacked the nesting tree, then cleared the understory and bladed it flat. Months later, when I showed up on the project, I spent about ¼ of my time working on the plat and ¾ of my time getting the builder out of Code Enforcement with the County who was the lead enforcement agency in this case.
How the hammer dropped:
The previous Project Manager for the builder had been fired, the construction company was put on 5-year probation for their contractor license by the state of Florida, the builder lost about 9 months of development time and both were heavily fined.
That’s how stupidity and not paying attention gets you in trouble. Remember, it’s not only rookies that can screw up big time. The builder had been around since the mid 1900’s and the construction company had been one of the bigger outfits in the state for decades.
Review:
Endangered and protected species are serious business for a land developer. It’s much easier to avoid a problem during property inspection prior to closing, but as described above, these species can decide on their own where and when to set up shop.
I always pay close attention to the habitat characteristics of a property during inspection since it is an indicator of the susceptibility of a property to attract and hold certain species. Wildlife biologists exist for a reason and a standard procedure I routinely use before closing is to employ them to understand where known habitat exists and the potential of a property to become habitat.
The Florida case illustrating “how not to do it” is instructional because it points to the need for the person in charge of the project to be on-site and make sure the clearing, grading and construction plans are followed. That did not happen since the project plans clearly showed the Conservation Easement, but the contractor didn’t pick it up and no one was on site to catch it.
