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January 4, 2012

New York Court Rejects Challenge to DEC Endangered Species Regulations

By: Christopher Amato — Filed under: Administrative Law, Emerging Issues, Endangered Species, New York Environmental Law — Posted at 1:26 pm

In a December 1, 2011 decision, the Supreme Court, Albany County, dismissed on procedural grounds two lawsuits challenging newly promulgated regulations by the New York State Department of Environmental Conservation (DEC) governing permits for projects that may affect species listed as endangered or threatened under State law (6 NYCRR Part 182).  Among other things, the new regulations set forth application requirements, review procedures and standards for “incidental take” permits that must be obtained for any activity that may result in a “take” of a listed species.  The regulations define “take” to include both direct taking by killing, capturing, harassing or similar acts, and indirect taking through the adverse modification of occupied habitat.  The two lawsuits, Association for a Better Long Island et al. v. New York State Department of Environmental Conservation and Town of Riverhead, et al. v. New York State Department of Environmental Conservation (Index No. 1268-11) were consolidated for decision.

Petitioners challenged the regulations on numerous grounds, including that in adopting the regulations, DEC had failed to seek approval from the State Environmental Board, failed to hold public hearings, and violated the State Administrative Procedures Act and the State Environmental Quality Review Act; that the regulations are ultra vires and constitute an improper delegation of a governmental function; and that petitioners’ due process rights had been violated.  DEC moved to dismiss both proceedings on the grounds that the issues raised were not ripe for review and that petitioners lacked standing.

In considering the ripeness issue, the court reviewed appellate case law establishing that ripeness turns on whether the potential harm from a challenged administrative action is sufficiently concrete.  The court noted that none of the petitioners had shown that they were undertaking or planned to undertake an activity subject to Part 182.  Although one petitioner alleged that future development of its land may require review under the new regulations, the court found that “[t]he fact that petitioners may be required, in the future, to undergo the DEC Part 182 review process is insufficient to constitute an actual or concrete injury.”  Because petitioners had failed to demonstrate any concrete injury resulting from the regulations, the court concluded that petitioners’ actions were not ripe for judicial review.

With respect to standing, petitioners argued that, as owners of land that may be utilized by endangered or threatened species, they had standing similar to that of landowners who challenge a zoning change in their zoning district.  The court rejected this argument, noting that, in contrast to a municipal zoning ordinance, Part 182 has statewide application “and does not impose any immediate and tangible change in land use.”  The court went on to conclude that petitioners had failed to establish standing because they had not shown any injury different from the public at large, and had not applied for an incidental take permit, sought a jurisdictional determination from DEC under Part 182 or been subject to an enforcement action under the regulations.

The court also rejected the claim by two petitioners that they had standing as citizen-taxpayers under State Finance Law 123-b, finding that their allegations with regard to the alleged unlawful expenditure of state funds were “nonspecific and conclusory and thus fail[ed] to support a claim of standing.”

For more information on DEC’s endangered species regulations, contact Christopher Amato.

November 4, 2010

DEC Adopts Regulations Protecting Endangered and Threatened Species

On November 3, 2010, the New York State Department of Environmental Conservation (“DEC”) adopted revisions to the State Endangered Species Act (“ESA”) Regulations, 6 N.Y.C.R.R. Part 182. As discussed previously on this blog, the revised regulations are notable for their coverage of incidental take permits, which are required when there is a “taking” (which includes killing and lesser acts such as disturbing species) of endangered or threatened species incidental to other lawful activity. Our previous post discusses the interaction between this obligation and existing obligations for environmental review under the State Environmental Quality Review Act (“SEQRA”).

The final regulations, available on DEC’s website, do not differ substantively from the draft regulations issued on August 4, 2010. Revised versions of the Regulatory Impact Statement, Regulatory Flexibility Analysis, and Rural Area Flexibility Analysis associated with the new regulations, as well as DEC’s assessment of public comments received, are available in the November 3, 2010 issue of the New York State Register.

For more information about New York’s Endangered Species Act, contact Steven Russo or Jessica Steinberg.

August 2, 2010

DEC Set to Publish Proposed Regulations Protecting Endangered and Threatened Species

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:

April 23, 2010

DEC Begins to Exercise its Authority Pursuant to the New York Endangered Species Act

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.