In a July 21 email to wildlife stakeholders, the New York State Department of Environmental Conservation (“DEC”) announced that draft revisions to the State Endangered Species Act (“ESA”) Regulations, 6 N.Y.C.R.R. Part 182, pursuant to Article 11 of the Environmental Conservation Law (“ECL”), were ready for public review and comment and would be published in the State Register, Environmental Notice Bulletin, and on DEC’s website on August 4.
If promulgated as proposed, the State ESA regulations will be significantly changed. Several sections have been added, including how DEC will list endangered and threatened species and species of special concern; requirements for recovery and restoration plans; requests for determination whether a specific action is subject to Part 182; and penalties and enforcement for violations. The most significant changes are the new sections regarding “incidental take permits.” The draft regulations define “incidental take” as “any taking of a species listed as endangered or threatened in Part 182.5 and otherwise prohibited by section 11-0535 of the [ECL] that is incidental to, and not the intended purpose of, an otherwise lawful activity.” Proposed 6 N.Y.C.R.R. § 182.2(k). “Take” or “taking” would be defined as “pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting of any species listed as endangered or threatened in this Part, and all lesser acts such as disturbing, harrying or worrying.” Id. § 182.2(y). This proposed definition is similar to the definition of “take” under the federal ESA, where it is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
The proposed regulations state that “any activity that is likely to result in the take or a taking of any species listed as endangered or threatened in this Part as determined by the [DEC] . . .” must be done pursuant to an incidental take permit. Proposed 6 N.Y.C.R..R § 182.11. The permit application will have to include a mitigation plan and implementation agreement, an analysis of whether being issued the permit would jeopardize the continued existence of the species’ population, a description of ways to modify the project to minimize or completely avoid a take of the species, and a certification statement, in addition to describing the proposed project and its potential impacts to the listed species.
Significantly, the applicant will have to demonstrate that measures taken pursuant to the mitigation plan will result in “a net conservation benefit to the listed species,” which is defined as:
[A] successful enhancement of the species’ overall population or contribution to the recovery of the species within New York. To be classified as a net conservation benefit, the enhancement or contribution must benefit the affected species listed as endangered or threatened in this Part or its habitat to a greater degree than if the applicant’s proposed activity were not undertaken.
Id. § 182.2(o). Based on recently issued State ESA Permits, a net conservation benefit most likely may be demonstrated by measures to set aside critical habitat or create new habitat for the listed species, depending on the species affected. Applicants also must include a monitoring plan and a description and guarantee of how the plan will be funded. For example, the applicant may post a performance bond that will cover habitat monitoring costs.
An applicant’s permit application will also have to identify involved persons, the timeline for implementing the plan (which will become the permit term), specify the source of funding, and be signed by all involved persons. DEC will issue an incidental take permit if it determines that any taking will be incidental to, and not the purpose of, the proposed activity, and there will be a net conservation benefit to the species. The Department will base its decision “upon the best scientific and other information that is reasonably available to [DEC].” Id. § 182.12.
These new regulations, as evidenced by the recently issued ESA permits, will add a regulatory hurdle to projects proposed in areas where there may be a take of a listed endangered or threatened species. Developers previously addressed a project’s potential impacts to such species during the State Environmental Quality Review Act (“SEQRA”) process. Now, they will have to go through two processes – a SEQRA review process and a separate ESA permitting process. This independent permitting jurisdiction means that DEC now will be a SEQRA “involved agency.” This means DEC will have formal commenting authority, and may even claim “lead agency” status in certain matters, potentially displacing local town or village boards, and driving the entire SEQRA review process. Regardless, unless the project’s mitigation measures result in a net conservation benefit to the listed species, as opposed to just minimizing any potential adverse impacts under SEQRA, DEC will not have legal authority to issue a State ESA Permit.
As we stated previously, when planning a project, developers should try to ensure that any potential impacts to listed species are considered and avoided in a manner consistent with DEC’s regulations.
Update (August 4, 2010):
Today, DEC published its proposed ESA regulations. DEC will accept comments from August 4 – September 20, 2010. Comments may be submitted via email to: Proposed Rulemaking Part 182 – Endangered and Threatened Species of Fish and Wildlife; Species of Special Concern or by mail to:
Dan Rosenblatt
New York State Department of Environmental Conservation
628 Broadway
Albany, New York 12233-4750
For additional information on submitting comments:
- Proposed ESA Regulation
- How to Comment on Fish, Wildlife, and Marine Resources Proposed Regulations
- Regulatory Impact Statement
