For Release: Thursday, August 5, 2010

DEC Releases Draft Regulations to Strengthen, Codify Endangered Species Regulations

Proposed Changes Will Provide Predictable Framework for Projects

New York State Department of Environmental Conservation (DEC) Commissioner Pete Grannis today announced the agency's plan to update the state's regulations to strengthen protections for endangered and threatened species and to provide developers, local officials and others with a clear regulatory framework.

The draft proposals, which are published in this week's Environmental News Bulletin, would establish criteria for the listing and de-listing of species and requirements for restoration and recovery plans. The proposals will also establish time lines, procedures and standards for reviewing applications for construction projects and other projects that might impact endangered and threatened species. The proposals would define the "taking" of a protected species to include the adverse modification of habitat - conforming to New York court decisions interpreting the term.

The regulations also call for applicants to develop a mitigation plan that results in a net conservation benefit to the listed species.

"With this proposal, we are codifying practices that had been in place for several years as a result of court decisions over the past decade," Commissioner Grannis said. "While improving the protection of rare species, these revisions also will benefit landowners, developers, local planners and others by providing clear guidance and predictability in planning and designing projects."

Construction projects that might result in the "incidental take" of an endangered or threatened species (i.e., the taking of a protected species or the harming of a species' habitat while engaged in an otherwise lawful activity) must complete a DEC permitting process before going forward. While current state regulations do not specify procedures or standards for reviewing such projects, the proposed regulations will clarify the permitting process.

For the first time, state regulations also will spell out criteria for listing or de-listing a species. Examples of listing criteria include:

If the current number of viable and self-sustaining populations of the species statewide is not sufficient to ensure its continued survival.
If threatened destruction, modification or curtailment of the species' habitat or range within the state threatens the continued survival of the species.
The absence of existing regulatory mechanisms to protect the species or its habitat.

Examples of de-listing criteria include:

If the current number of viable and self-sustaining populations of the species statewide is increased to a level sufficient to ensure continued survival of the species in the state.
Other regulatory mechanisms have been adopted to adequately protect the species or its habitat.
The sources of population declines, such as disease or habitat loss, have been addressed and abated.

To access the proposal, the text of the regulation and related links please visit the DEC website.

Public comments will be accepted through Sept. 20, 2010. To comment, write to Dan Rosenblatt, NYSDEC 625 Broadway, Albany, NY 12233-4750 or send e-mail to wildliferegs@gw.dec.state.ny.us.