In what appears to be a significant emerging trend, the New York State Department of Environmental Conservation (“DEC”) is beginning to exercise its long-dormant authority to regulate endangered and threatened species and their habitat. This trend could have a significant impact on developments proposed in or near these species’ habitat.
The DEC recently issued four licenses, or New York State Endangered Species Act permits (“ESA Permits”) under Article 11 of the Environmental Conservation Law (“ECL”), a number which is notable for far exceeding past issuances. The permits were issued for the construction of a wind power plant, a retail facility, a road project, and a residential development. These ESA Permits authorize the “taking” of endangered and/or threatened species, which includes the killing, capturing, disturbing and worrying the species, or modification of its habitat. ECL § 11-0535; see also State v. Sour Mt. Realty, Inc., 714 N.Y.S.2d 78 (2d Dept. 2000); State v. White Oak Co., 787 N.Y.S.2d 333 (2d Dept. 2004).
To receive the ESA Permit, the applicants had to demonstrate a net conservation benefit to the identified species once all mitigation measures and permit conditions are complete. Although DEC determines necessary mitigation measures on a case-by-case basis depending upon the type of species involved, DEC required similar mitigation conditions for each of the ESA Permits. Conditions included permanently protecting land by transferring title or a conservation easement, and securing a performance bond before commencing any activities on site to cover the estimated costs of habitat restoration and mitigation. Setting aside crucial habitat or new habitat that did not exist may become a standard permit requirement.
Under Governor Pataki, the DEC did not exercise its endangered species authority pursuant to Article 11. Instead, endangered and threatened species issues were dealt with pursuant to the State Environmental Quality Review Act (“SEQRA”). Under the new administration, and Commissioner Pete Grannis, DEC has notably begun to exercise its Article 11 authority. Therefore, projects that might “take” a listed species and cannot be modified to avoid the taking entirely will have to obtain an ESA Permit.
Although developers have always had to consider the impacts of a proposed project on listed species under SEQRA, if the mitigation measures minimized the adverse impacts, then the requirements of SEQRA were usually satisfied and the review ended, even if the project resulted in alteration or destruction of the species’ habitat. Now, it appears that even when the project satisfies SEQRA requirements, if the project’s impacts alter or destroy listed species’ habitat or “take” a listed species, the developer must apply for an ESA Permit. To receive the permit, the developer must demonstrate a “net conservation benefit” from the proposed mitigation measures, which may include setting aside crucial habitat or creating new habitat for the listed species. Therefore, when planning a project, the developer should try to ensure that impacts to listed species and their habitat are considered and avoided entirely. Otherwise, the developer will need an ESA Permit.
DEC has sent draft regulations to the Governor’s office for approval, a required step before releasing them for public comment. The draft regulations are expected in the near future. The content of the draft regulations are unknown, but based on the ESA Permits issued, they may likely require mitigation measures like permanent protection and monitoring of habitat, and securing a performance bond to ensure that the mitigation measures are implemented.
DEC’s Article 11 enforcement authority was made clear in the recent ESA Permits and DEC’s recent letter (pdf) denying Entergy’s application for a Water Quality Certificate pursuant to Section 401 of the Clean Water Act for Indian Point Units 2 and 3 (“Indian Point”) in Buchanan, New York. Sampling data from 1975-1990 determined that Indian Point’s operations harmed (i.e., resulted in a “taking” of) shortnose sturgeon, a New York listed endangered species, and Atlantic sturgeon, a federally protected species, by impinging the sturgeon on and entraining them in the cooling water intake structures. Although recent sampling data was not available, DEC determined that based on prior studies and Indian Point’s unauthorized “take” of the listed species, the relicensing of Indian Point “would continue to cause mortality to the sturgeon species” and therefore was not in compliance with Article 11.