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Frequently Asked Questions About New York's Endangered Species Regulations

The Department of Environmental Conservation (DEC) has recently adopted changes to its Endangered and Threatened Species Regulations, which are codified at 6 NYCRR Part 182. DEC has prepared these Frequently Asked Questions (FAQs) to explain the regulatory changes and to respond to some of the more commonly asked questions from stakeholders regarding the changes.

Q: What is the purpose of the changes to the regulations?

The regulatory changes are intended to accomplish the following goals:

(1) Establish clear criteria that the Department will apply in determining

(i) whether a species should be added to the list of endangered and threatened species,

(ii) whether to change the "endangered" or "threatened" classification of a listed species, and

(iii) whether to remove a species from the list of endangered and threatened species;

(2) Clarify under what circumstances DEC's obligation under ECL § 11-0535 (the State Endangered Species Act) to protect endangered and threatened species and their habitat will be triggered;

(3) Clarify the circumstances under which the "incidental take permit" established by ECL § 11-0535 will be required;

(4) Clarify the application requirements for an incidental take permit;

(5) Specify the procedures and the timeframes that DEC will adhere to in reviewing an application for an incidental take permit;

(6) Clarify the standards and criteria DEC applies when determining whether to grant or deny an incidental take permit application; and

(7) Clarify the definitions of key terms used in ECL § 11-0535 in order to ensure that they conform to recent court rulings interpreting those terms.

Q: Why were these regulation changes necessary?

The previous regulations required a permit for any "taking" of threatened or endangered species. However, they did not explain when a permit was required, did not explain how to apply for a permit, did not specify timeframes or procedures for DEC review of permit applications, did not explain the standards and criteria DEC applies in reviewing permit applications, and did not define some key terms used in ECL § 11-0535. The previous regulations also failed to explain the criteria DEC applies in determining whether to add or remove species from the list of endangered and threatened species.

Q: Do these changes impose a new regulatory burden on developers, forestland managers, and other landowners?

No. Existing law (ECL § 11-0535) and previous regulations (Part 182) already prohibited the "take" of endangered and threatened species without a DEC permit. These changes clarify under what circumstances a permit is required, how to apply for a permit, and how DEC will review and make decisions on permit applications.

Q: The regulations refer to an "incidental take permit." Isn't this a new permit requirement?

No. The permit required under existing law (ECL § 11-0535) and previous regulations (Part 182) for activities that may result in the "take" of endangered or threatened species is an incidental take permit. These regulations now refer to the permit as an "incidental take" permit because the "take" authorized by the permit is incidental to (i.e., not the primary purpose of) an otherwise lawful activity.

Q: Do the regulations expand the scope of the Department's jurisdiction by requiring previously unregulated activities to apply for an incidental take permit?

No. As before, only proposed activities that may result in a "take" of an endangered or threatened species are subject to regulation.

Q. These regulations define "take" to include the adverse modification of the habitat of an endangered or threatened species. Didn't this expand the Department's jurisdiction?

No. The Department peviously regulated activities that resulted in adverse modification of the occupied habitat of endangered or threatened species. The Department's authority to regulate such activities is based upon appellate court decisions that have ruled that the term "take," as used in the State's Endangered Species Act, includes adverse modification of the habitat of protected species. These regulations adopt the definition of "take" as articulated by those court decisions.

Q: Does the adverse modification of any habitat that may have been used by an endangered or threatened species trigger the requirement of an incidental take permit?

No. In order to trigger the permit requirement, a proposed activity must involve an adverse modification of occupied habitat, which is defined in the regulations as the geographic area in which a protected species has been determined by the department to exhibit one or more essential behaviors. Examples of essential behaviors include breeding, hibernation, reproduction, feeding, sheltering, migration and overwintering.

Q: How will the Department determine whether habitat is occupied habitat for the purpose of determining jurisdiction under these regulations?

The Department will determine whether habitat is occupied habitat for jurisdictional purposes based on whether there exists a verified report of a protected species engaging in one or more essential behaviors in the geographic area in question. A verified report is one for which DEC has been able to ascertain the accuracy and reliability of the information contained in the report. This is normally accomplished either through direct observation by Department staff or by Department staff verifying the veracity of reports made by third parties.

Q: Is a single sighting of an endangered or threatened species in a particular area sufficient to establish that area as occupied habitat?

In most cases, the answer is no. For example, a single observation of an endangered or threatened bird species flying over a field is not sufficient to classify that field as occupied habitat under these regulations. However, if that same protected bird species is observed using the field for breeding, it is likely that the field would be classified as occupied habitat.

Q: How will the Department treat habitat that was formerly utilized by a protected species, but is not presently being used by that species?

Habitat that was formerly occupied by a protected species will be assumed to remain occupied unless there have been recent surveys confirming that the species is no longer present. No incidental take permit would be required if surveys confirm that the species is no longer present in the habitat.

Q: Does the fact that a proposed activity may occur in the general vicinity of identified habitat for an endangered or threatened species automatically mean that an incidental take permit will be required?

No. In fact, most projects ultimately do not require an incidental take permit. For example, in 2008 approximately 700 projects were identified as taking place in proximity to protected species. However, only one of those projects was ultimately required to apply for an incidental take permit. The remaining projects were not required to apply for a permit either because additional analysis by DEC staff revealed that the proposed project would not affect occupied habitat, or the project was modified to avoid impacts to protected species or occupied habitat.

Q: Will landowners need an incidental take permit under these regulations for routine land management activities such as mowing lawns or harvesting firewood?

In general, the answer is no. A permit will not be required unless an activity is occurring in occupied habitat (see above) and will result in adverse modification of that habitat. Generally, lawns do not provide important habitat for protected species, and as such would not be considered occupied habitat. Likewise, most small scale timber harvesting and forest management activities do not adversely affect protected species or their occupied habitat.

Q. Is there publicly available information on where endangered and threatened species and their occupied habitat occur in New York State?

Yes. The Department's Natural Heritage Program maintains a database on documented occurrences of protected species in New York. Anyone can obtain a report from the Natural Heritage Program concerning the potential presence of protected species in a particular location by submitting a map of the area in question to the Natural Heritage Program, 625 Broadway, Albany, NY 12233. In addition, information on protected species and their habitat is available on the Department's website through the Environmental Resource Mapper and Nature Explorer web applications. The Environmental Resource Mapper highlights areas of concern around documented locations of protected species but does not give the specific location or the identity of the species. Nature Explorer can generate lists of the species that have been confirmed within any particular county in addition to generalized mapping of areas where protected species have been documented to occur. Additional information concerning the presence of protected species can be obtained from regional DEC offices.

Q. What happens if a protected species is taken by accident, such as by being hit by a vehicle?

These regulations provide a specific exemption for an accidental and unforeseeable take of a protected species. Thus, for example, a true accident in which a vehicle collides with a protected species crossing a highway would be exempt from the permit requirement and would not be subject to enforcement. However, repeated "accidental" take of a protected species by the same manner or means in the same geographic area would not be exempt on the ground that it is foreseeable and that measures should have been instituted to avoid additional take of the species.

Q: Why are agricultural activities exempt from the incidental take permit requirement?

The regulations exempt existing, routine and ongoing agricultural activities from the incidental take permit requirement because the habitat types created by those activities are generally not used by endangered or threatened species, are frequently transitory in nature (e.g., crops only present for part of the year or changed between years), and are rapidly replaced in the landscape.

Q: Why are forest management activities not exempt from the incidental take permit requirement?

In contrast to the habitat types created by agricultural activities, forest habitat may be utilized by endangered and threatened species year round and over many years. The Department recognizes that most forest management activities do not result in permanent conversion of habitat and thus are not anticipated to result in adverse impacts to protected species or their habitat. Nevertheless, forests cover more than 60% of New York's landscape and, over the long term, conversion and alteration of forests for land development activities could potentially affect the survival of protected species in New York.

Q: Are there any protected species that forest owners should consider when planning their forest management strategies?

Yes. Bald eagles, cricket frogs, tiger salamanders, and spruce grouse are protected species that rely on forests in certain areas of New York for portions of their lifecycle. Eagles may be found throughout most of New York, and generally utilize tall trees for nesting and perching, usually near large bodies of water. Cricket frogs are found in the Hudson Highlands and Shawangunk area, and tiger salamanders are found on Long Island. Both species utilize the substrate of forest habitat for foraging and overwintering habitat outside of the breeding season. Spruce grouse are found in the western portion of the Adirondack region, and spend their entire lives in early to mid-successional stage coniferous forests of primarily spruce and fir.

Q: Are state agencies or activities on state lands exempt from the regulations?

No. State agencies and activities undertaken on state lands are subject to the regulations.

Q: What procedures and timeframes will DEC follow in reviewing an application for an incidental take permit?

The regulations specify that DEC will follow the procedures and timeframes set forth in the Uniform Procedures Act (UPA) in reviewing an application for an incidental take permit. Under these regulations, regional Division of Environmental Permits staff will serve as the coordinating entity for receipt of applications and issuance of any permits.

Q: What form will DEC use for incidental take permits?

We will use the UPA Joint Application for Permit form. It has been modified to include incidental take permits.

Q: What criteria will DEC apply in determining whether or not to issue an incidental take permit?

The criteria to be applied by DEC in determining whether or not to issue an incidental take permit are set forth in section 182.12 of the regulations. Generally, in order to obtain an incidental take permit, an applicant must provide the Department with a mitigation plan that commits the applicant to undertake measures that will result in a net conservation benefit to the protected species impacted by the proposed activity.

Q: What is a "net conservation benefit" and how will DEC determine whether a mitigation plan achieves this requirement?

The regulations define a "net conservation benefit" as a successful enhancement of the species' overall or local population or a contribution to the recovery of the species in New York. Generally, a net conservation benefit is achieved when the adverse impacts of a proposed activity on a protected species or its occupied habitat will be outweighed by the positive impacts anticipated from the mitigation measures proposed by the applicant. These regulations do not impose rigid requirements for mitigation plans because it is DEC's intention to provide applicants with flexibility in devising ways to achieve a net conservation benefit. Flexibility is also necessary in order to account for the variability among project types and locations, as well as the particular habitat and life history needs of protected species.

Q: Has the Department ever issued an incidental take permit and, if so, what types of mitigation plans have been found to achieve a net conservation benefit?

Yes, DEC has issued incidental take permits for a variety of projects, including housing and commercial developments, a wind energy project, and a new highway. These projects affected a wide range of protected species, including Indiana bat, tiger salamander, bald eagle, Henslow's sparrow, upland sandpiper, northern harrier, and short-eared owl. The mitigation plans approved by DEC for these projects included a diverse array of mitigation measures, including the purchase and protection by conservation easement of occupied habitat; permanent protection of migration corridors; creation of new suitable breeding habitat; construction of vegetated berms to avoid vehicle collisions; and other land management activities designed to enhance survival and recovery of the protected species.

Q: Are there mitigation measures available beyond land set asides and management?

Yes, depending on the particular facts and circumstances involved. For example, in appropriate situations acceptable mitigation measures could include critical research necessary to develop management guidance on the listed species, or development of innovative technologies or business practices that reduce or remove known threats to the species.

Q: Are species of special concern protected under these regulations?

An incidental take permit is not required for activities affecting species of special concern. However, a DEC license is required to collect, possess, transport, buy, sell, broker the sale of, attempt to sell, export, import or possess with intent to sell any species of special concern. The regulations will not impact other activities already authorized under other Environmental Conservation Law provisions, such as rendering aid to distressed wildlife (ECL § 11-0919), wildlife rehabilitation (ECL § 11-0515), or falconry (ECL Article 11, title 10).

Q: Under what authority did the Department promulgate these regulations?

The Department promulgated these regulations pursuant to its general powers under ECL Article 3 and pursuant to specific authority under ECL § 11-0535 (the State Endangered Species Act) and court decisions interpreting the Department's authority under that statute.