The Burrowing Owl Affidavit: What Cape Coral Requires Before Your Permit

Somewhere in the stack of paper that gets a Cape Coral house permitted is a two-page form most buyers never hear about until it is in front of them. It is called the Burrowing Owl/Gopher Tortoise Affidavit, the City revised it in March 2026, and it is the one document in the packet that asks you to swear to something you personally did rather than something a professional drew. It is not a permit, it does not come from the state, and it does not by itself stop anything. What it does is move an obligation onto you, and it reaches past your property line in a way nothing else in the packet does.

Where the affidavit sits in the packet

The form's letterhead is the City of Cape Coral Development Services Department, and the header on page one reads "Revised_03/19/26". Page two prints the same stamp unpadded, as "Revised_3/19/26". The one- or two-family dwelling packet asks for it, and so do the City's dock, boat lift and captain's walk guidelines, which is why it turns up behind a dock or boat lift permit. The in-ground pool guideline asks for it, and since 1 March 2026 the separate pool safety barrier permit asks for it again, alongside the screen enclosure requirements. A buyer on a waterfront build can sign the same affidavit five or six times on one project.

The sentence you sign, in full

The attestation on page one begins "Within the last 30 days, I have inspected the property described above AND all vacant properties near" and continues "the jobsite where I or my subcontractors may drive vehicles or place construction material."

Two things follow from that second clause. The thirty days means an inspection done when the lot was bought does not satisfy a form signed four months later. The scope means the duty extends to vacant land you do not own, and the test is not proximity in the abstract but whether your trucks, your crew or your material will end up there. The reporting line covers burrows "including those located in the abutting City rights-of way", while a parenthetical stops the obvious misreading: acknowledging a neighboring burrow "does not authorize entry onto or use of any private property". Page two warns that failing to secure permits or maintain the buffers will result in "a STOP WORK ORDER being issued on my site", one more way a job stops alongside the inspection failures the City names itself.

Three buffers, two species, each stated twice

The affidavit prints all three figures, and prints each as a radius and again as a diameter, which removes the ambiguity that sinks most writing on the subject.

• Burrowing owls, in season. "Burrowing Owls: a protection zone shall extend a radius of 33 feet (66-foot diameter) from the burrow entrance", during a season the form gives as "(February 15th- July 10th)".

• Burrowing owls, out of season. "or a minimum of 10 feet (20-foot diameter) outside of nesting season."

• Gopher tortoises. "Gopher Tortoises: a radius of 25 feet (50-foot diameter) is required from the burrow entrance year-round", which the form attributes to "(Ordinance 20-19)".

Inside those zones the rule is absolute: "No activity, materials, fill, equipment, or parking is allowed within these buffers." The barrier has to be physical, built from "rope, silt fence, orange" and "construction fencing or other previously approved materials", and the City's owl procedures handout adds that it "must be installed prior to commencement of construction activities."

The tortoise half is where every other page in this market stops. The form is named for two species, yet of the three pages a Cape Coral buyer is most likely to land on searching this subject, one a builder's, one a lot broker's and one a wildlife charity's, all three mention the tortoise only inside the form's own title. Not one gives the 25-foot figure or cites the ordinance. If your lot has a tortoise burrow rather than an owl burrow, the buffer is larger than the off-season owl buffer and it does not shrink in July.

Where the City's form and the state's guidelines do not line up

Read the affidavit alone and the owl buffer looks purely seasonal: 33 feet from mid-February to mid-July, 10 feet the rest of the year. The state's own document is stricter, and the difference matters if you are planning winter work.

The Florida Burrowing Owl Species Conservation Measures and Permitting Guidelines were approved by the Commission in February 2018 and incorporated by reference into Rule 68A-27.003, F.A.C. in April 2019. They treat the ten feet as permanent: "Disturbances within 10 feet of a Potentially Occupied burrow entrance at any time of year are expected to cause take," and separately "Disturbances within 33 feet of a Potentially Occupied burrow entrance during the breeding season (February 15-July 10)" are expected to cause take as well.

So ten feet is not an off-season concession. It is the floor, and thirty-three feet is added on top of it in season. The guidelines print their reasoning, which is what makes the figure stick: "Given that burrows are typically 5-10 feet long," they note, "most activities within 10 feet of a burrow can result in collapse of the burrow."

"Potentially Occupied" is the phrase that decides your lot

The most expensive misunderstanding here is that an empty burrow is a free burrow. The state's category is not occupied or unoccupied but Potentially Occupied, and a burrow qualifies whether or not anything has been seen using it. The guidelines include "burrows previously occupied by burrowing owls where no indications of recent" "occupancy are evident, but the burrow entrance is still open", and state that impacts "may cause take, even when burrows are inactive".

A burrow nature has collapsed is a different thing, and the guidelines exempt those as Abandoned. The exemption is deliberately narrow: "Burrows with collapsed or blocked entrances resulting from human actions will still be considered" "Potentially Occupied burrows, because natural processes were not the cause of burrow collapse or blockage." You cannot manufacture an abandoned burrow. The City's FAQ handout answers the same question outright, that "Inactive burrows still require a state permit to remove", and gives the reason: "Juvenile burrowing owls often move into inactive burrows."

The permit has two names, and that is why nobody can find it

If the buffer cannot be held, the route is a state permit. The authorization is an Incidental Take Permit, and the guidelines give the plainest example of what it covers: "Impacts to burrows in the act of building a house is an example of incidental take."

It is not filed under that name. The state's burrowing owl permitting FAQ, stamped "Updated 6/24/19", warns that "Please note that incidental take permits currently are called Migratory Bird Nest Removal Permits" "on the online permitting site." The City's two handouts use both names without reconciling them, one calling it a Nest Removal Permit and the other an incidental take permit. Nothing published locally says they are the same thing, which is the ordinary reason someone searches one name and concludes the permit does not exist.

Two mechanics are worth having first. Active nests are close to unobtainable, and the City's handout notes that such a permit "will normally apply only to inactive nests from July 11th thru February 14th." And the clause that catches builders runs opposite to expectation: the state's FAQ requires that excavation and filling happen within the 48 hours before work begins in the active part of the site, and its guidance is that doing it before you hold local authorization is likely to breach the permit's own conditions. The state permit comes first on paper and last in the field. Where that leaves a calendar is a question about review queues rather than owls, and the statutory deadlines on permit review are set out separately.

What the City does, and what it says it does not

The City collects the affidavit and reviews the package. It does not issue the wildlife permit, and its handout says so flatly: "The City does not grant or deny any owl Nest Removal Permits." Enforcement is referred out, the affidavit stating that "The City shall notify the law enforcement division of the Florida Fish & Wildlife Conservation Commission" where a violation is observed. The inspection the City relies on is yours, not a City field visit, and the handout tells you what you are looking for: "The owl burrow entrances range from 3 to 8 inches in diameter."

Starter burrows, and what relocation is not

Relocation is not an option. The state calls translocation "experimental and is therefore not considered a mitigation option at this time, except in rare circumstances." The City is blunter: "Burrowing Owl burrows (nests) cannot be "moved"; they can only be destroyed by obtaining a permit from the State." What does exist is the starter burrow, an angled hole dug to resemble a natural one with a perch beside it. Its legal status is the useful part: it "would not have any protected status until used as a nest by Burrowing Owls." The state asks for commitment rather than a gesture, in that "Starter burrows shall be maintained for a minimum of 3 years."

Two dates that are missing

The absences here are as useful as the figures. Neither of the City's two burrowing owl handouts carries a printed date anywhere: no header stamp, no footer, no effective date. One is published under a filename containing 9-1-2020, but a filename is not a document's date. Only the affidavit itself is dated, at Revised_03/19/26.

The second absence is at state level and it is live now. On 13 August 2025 the agency announced that the Commission had approved revisions to the burrowing owl guidelines, standardizing mitigation for projects involving significant habitat modification, expanding options for long-term permitting, and clarifying concepts, definitions and requirements. More than a year later the revised document is published with its effective date left as a placeholder, its header reading "Effective Month, XXXX", while the agency's own index still lists the February 2018 version under the heading for guidelines approved by the Commission. Everything quoted above comes from the 2018 document, because that is the version carrying both a date and a rule citation.

What it means when you are choosing a lot

Walk the lot and the vacant land around it before the drawings are far along, because a burrow found at the siting stage is usually a design constraint while the same burrow found at submittal is not. Then decide whether the house, the driveway, the pool deck and the construction access can all live outside the buffer, because if they can, no state permit is needed at all.

The buffer is a no-build, no-park, no-stockpile circle, and on a typical Cape Coral lot it competes with the driveway and the pool deck for the same square footage the impervious coverage cap is already rationing. The affidavit arrives in the same packet as the survey, the impervious calculation and, on waterfront lots, the seawall affidavit. Lux Development Group builds custom homes in Cape Coral, and its completed Cape Coral work is collected on the projects page.

Frequently asked questions

Can I build on a Cape Coral lot that has a burrowing owl burrow on it?

Yes. The City's procedures handout states it in four words: "Properties with owls are developable." If the house and all construction activity can stay outside the protection zone, no state permit is required at all. It becomes a permit question only when the buffer cannot be held. The lot-selection version of this question sits with the other checks to run before you build.

What is the Burrowing Owl/Gopher Tortoise Affidavit?

A two-page City of Cape Coral Development Services form, revised 19 March 2026, on which a permit applicant states they have inspected the property and nearby vacant land for burrows within the last thirty days, reports how many were found, and accepts responsibility for protecting them during construction.

How far from a burrowing owl burrow can you build in Cape Coral?

The City's affidavit sets a protection zone with a radius of 33 feet, a 66-foot diameter, during nesting season, and a minimum of 10 feet, a 20-foot diameter, outside it. The state's 2018 guidelines are stricter on the smaller figure, treating disturbance within 10 feet as expected to cause take at any time of year. The safe reading is 10 feet year-round and 33 feet in season.

Is the burrowing owl buffer different during nesting season?

Yes. The City's form gives nesting season as February 15th to July 10th and sets the buffer at 33 feet during it. The state calls the same window the breeding season and notes owls can breed earlier or later, so the dates are a rule rather than a biological certainty.

Does the gopher tortoise have its own buffer in Cape Coral?

Yes, and it differs in two ways. The affidavit requires a radius of 25 feet, a 50-foot diameter, from the burrow entrance, and it applies year-round with no seasonal variation. The form attributes it to Ordinance 20-19. The City's two burrowing owl handouts do not mention tortoises or state any tortoise buffer at all.

Can I fill in a burrow if I have not seen an owl in months?

No. The City's FAQ handout states that "Inactive burrows still require a state permit to remove." The state's classification covers a burrow with no sign of recent occupancy for as long as the entrance is still open, and a burrow blocked or collapsed by human action stays regulated rather than becoming abandoned.

Do I need to worry about a burrow on my neighbor's vacant lot?

The affidavit asks you to report burrows on adjacent properties and in the abutting City right-of-way, and the sentence you sign covers vacant land where you or your subcontractors may drive vehicles or place material. The state also asks that surveys extend 33 feet beyond the project footprint, because burrows on adjacent property can be affected by the work.

Who issues the burrowing owl permit, the City or the State?

The State. The City's procedures handout says plainly: "The City does not grant or deny any owl Nest Removal Permits." The City's role is the affidavit, the permit package, and referring a suspected violation to state law enforcement.

What is the burrowing owl permit called in the state's online system?

The authorization is an Incidental Take Permit, but the state's permitting FAQ warns that incidental take permits "currently are called Migratory Bird Nest Removal Permits" on its online permitting site. Searching the first name and not finding it is the usual reason people conclude the permit does not exist.