Community Association Management of Wetland Fish and Wildlife

By Senior Attorney, Erin Glover-Frey

I was out walking my dog last week, when I saw a pair of unfamiliar duck-like birds at a retention pond. They were tan and brown with a dark ring around their eyes and seemed thoroughly unafraid of me or my fearsome 8 pound dog. Google Lens told me they were Egyptian Geese. I’ve never seen an Egyptian Goose in Ormond Beach, so why not take a deeper dive into what they are and where they came from.

Egyptian Geese came from – duh – Egypt. They look like they are wearing Cleopatra’s eyeliner and figure in hieroglyphics from her era. They are well-established in South Florida and are already dividing homeowners in condos and HOAs down there on how to handle them. Some owners want to eliminate them from common area ponds while others have banded together to protect nesting pairs.

With so many community associations owning retention ponds, what is the best practice to manage native and non-native fish and wildlife species that may take up residence? Typical lawyer answer – it depends. Most fish and wildlife will be harmless, but some will not. Harm to the pond and harm to persons from a particular species can occur. A flock of Egyptian Geese can provide enough “fertilizer” to cause an unhealthy algal bloom in the pond and resultant fish kill. In one extreme case, an HOA had to pay a $5 million settlement to a Miramar woman who lost her leg to a water moccasin bite on HOA wetlands. With risks to persons and property posed by wetland wildlife, how does the association proceed?

Option 1 – Leave the concerning species be. This is generally only advisable after checking with Florida Fish and Wildlife (FWC) or your pond management company.

Option 2 – Fish it out. Often the problem species is a fish. Encourage (licensed) residents to fish out the overpopulated species. A kid’s fishing derby can be a great community-building event.

Option 3 – Restock with a beneficial species to crowd out the invader. FWC has great resources for how to restock ponds to eliminate certain undesirable fish species and the animals that prey on the undesirable fish.

Option 4 – Call in the experts. For alligators over 4 feet, you can call FWC to remove them. For those under 4 feet, call a trapper. FWC has trapper resources for alligators and other species. Some birds may be protected under the Federal Migratory Bird Treaty Act (as of 2020, Canada Geese were protected but Egyptian Geese were not) and cannot be removed without a special permit. An expert will be able to advise on whether your problem species should stay or go.

The state of Florida Coastal Construction Control Line (CCCL) emergency permitting requirements apply to post storm recovery activities seaward of the coastal construction control lines established for 25 sandy beach counties or seaward of a 50-foot setback from mean high water on beaches of coastal counties without established CCCLs.

• Post-Storm Emergency Permitting Resources – An overview of the CCCL Program’s emergency permitting, storm recovery assistance and local government emergency relief measures available seaward of a coastal construction control line after a coastal storm emergency has been declared. 
• Post-Storm Public Information Handout: Emergency Permitting Guidance for Beachfront Property Owners – This is the first of two post storm information handouts.  This handout provides an explanation of post storm recovery activities by property owners and managers that are authorized seaward of the CCCL under the department’s Emergency Final Order (EFO). The type of permits, exemptions or approvals needed for each project and the required construction conditions are detailed by recovery activity and location. Additional regulatory tips for post-storm work on private property under the EFO.
• Post-Storm Public Information Handout: Emergency Permitting Guidance for Local Governments, State Agencies and Public Utilities – This second handout gives an explanation of post storm recovery activities that are authorized for governmental entities to undertake seaward of the CCCL under the department’s Emergency Final Order (EFO) without additional CCCL permits. The type of permits, exemptions or approvals needed for each post-storm project and the required construction conditions are detailed by recovery activity and location. Expedited emergency permitting procedures are also described for local governments to act on behalf of the Department for CCCL approvals through local building permits.
• Guidance to Local Governments for Emergency Temporary Coastal Armoring and Other Measures Seaward of the CCCL – Instructions to local governments on post-storm permitting of temporary protective measures such as sandbags and temporary walls.
• Post Storm Permit Assistance Request Form – Technical assistance request for property owners and others to send in to the CCCL program for help.  Accurate contact, location and activity descriptions will make sure the technical assistance request is routed to staff that can respond with guidance on how best to approach the storm recovery situation.
• Permit Application Information – CCCL permit application webpage with guidance documents and emergency permitting application form.
• Post-Hurricane Recovery Sand Specification – Sand material quality specifications for sand grain sizes, sand colors and other sediment characteristics that will meet the CCCL sand rule’s (section 62B-33.005(7), F.A.C.) beach compatibility standard for use of fill sand seaward of the coastal construction control line in post storm recovery activities such as emergency fill placement or dune restoration. 
• Hurricane Ian Emergency Permitting Response – Volusia County Beachfront Communities – Emergency permit procedures specific to Volusia County, which will be issuing emergency permits under the Department’s EFO.

---

Coastal Storm Information 

• DEP’s Hurricane Page – DEP’s Communication Office site for information related to agency-wide storm response.
• Current Season Storms – DEP’s Division of Water Resource Management site with DEP Emergency Final Orders and information on environmental resource permits and drinking water and wastewater facilities.
• Post-Storm Report Archives – Historical record of coastal storm damage assessment reports prepared by Beaches Coastal Engineering and Geology Program.
• C.O.A.S.T.S. Search Page – Collection of Aerials and Shorelines Trend System that can be searched by storm name, year, county or range monument for aerial, still and video photography and other digital data.
• Post-Storm Windshield Surveys – State of Florida Emergency Operations Center, ESF10 Event Portal. This ESRI ArcGIS browser includes DEP agency-wide storm recovery data. Select the Beaches tab along the top to view the Windshield Survey sites. Select the red dots to view general data recorded at the beach, including beach condition observations and ground still photography.

Click here to watch our seminar – https://bit.ly/ReservesAndBudgeting

Hurricane Ian’s impact is being felt throughout Florida, as such, it is likely that several condo and associations will need to access units to repair, dry out or replace common elements or limited common elements, sometimes even on an emergency basis. Even though the majority of owners will cooperate and allow the Association or its agents access to perform necessary repairs, some owners may be more difficult and even refuse to allow the Association access into their units to perform repairs.

In those instances, condo Association’s must utilize their emergency statutory emergency powers granted pursuant to Florida Statute §718.111(5)(a) which states, “The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.” The law is well established in Florida, condominium associations have the irrevocable right of access to each unit during reasonable hours when it is necessary for the maintenance, repair or replacement of the common elements, limited common elements, or any portion of the unit that the association is required to maintain, as well as to prevent damage to common elements.

It is a basic principle of condominium law that, by choosing to live in a condominium, individual unit owners give up certain freedoms and accept certain restrictions upon rights which could be expected in separate, privately-owned property. Woodside Village Condo. Ass’n, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002); Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975). The statute provides two broad purposes for access: for maintenance or to prevent damage. Cypress Isle at the Polo Club Condo. Ass’n. Inc. v. Shelton, Arb Case No. 98-4090 (July 22, 1998).

Use of the word “irrevocable” emphasizes the legislative intent that the right of access cannot be limited by governing documents of a condominium or by a negotiated condition in the sale of units. Access will be allowed even when a unit owner has given a written warning that the association should not enter a unit. See Hidgon v. Seaspray Condo. Ass’n, Inc., Arb. Case No. 96-0430, Final Order (March 24, 1998). The interest of a unit owner to protect his or her property behind the locked door of his or her unit must yield to the need for the Association to protect condominium property. An association’s Declaration of Condominium puts unit owners on notice that condominium property also lies behind the locked door to his or her unit, including walls, pipes, wires, conduits and utility lines.

generally, issues of the timing of the entry and notification to the owners are a function of good business judgment, prudence, and civility. That being said, Florida Statute §718.1265(1)(j) does provide condominium associations with emergency power to “mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.” 

Whenever possible, the association and property management should contact the unit owner in advance of using their right to access the unit and attempt to coordinate such access with the unit owner. However, in cases involving property damage of an emergency nature, the association would be able to use the key to access the unit even without advance notice to the owner. Associations should review their governing documents to determine if there are any additional rights afforded to the Association in relation to accessing units and/or performing necessary repairs within units.