Endangered And Threatened Animal Species Incidental Take Permits

Implications and Guidance on Project Review Needs

Endangered and Threatened Animal Species (ETS) and the habitat they occupy are protected by state law and regulation: Environmental Conservation Law §11-0535 and 6 NYCRR Part 182 (links leave DEC website). This page provides information on how to address concerns with ETS and how to avoid adverse impacts to these species from proposed projects. In most cases, if you follow all Department-issued guidance, you can avoid regulatory requirements or the need for an ETS incidental take permit. If your proposed project will negatively impact ETS, permits and additional review from the Department may be needed. In addition, there may still be a need for a coordinated Department review and other permits from the town, state, or federal government before a project may begin.

Please note that this guidance does not apply to large-scale renewable energy projects or listed plant species or scientific study; see Other Important ETS concerns below.

Determining Presence of a Listed Species on or Near Your Project Site

The best ways to determine if ETS are on or near your project site are to visit the Request Natural Heritage Information webpage or run your prospective project location through the DEC Online EAF Mapper.

After following the guidance on the referenced webpages above, if no ETS are indicated near your site, and there is no other evidence of occupied habitat, such as from site-specific surveys prepared for environmental impact review, then your proposed project will likely not have ETS concerns.

If after following the directions on the above referenced webpages, the response indicates that your proposed project occurs in the vicinity of an ETS, this means the project location may contain occupied habitat. Occupied habitats are locations where individuals of a listed species have been documented to be breeding, nesting, roosting, foraging, sheltering, migrating, or overwintering (i.e., essential behaviors). If your proposed project may result in either direct harm or disturbance to listed species, or reduce the amount or quality of occupied habitat, your project may result in a "take" of a listed species as defined in 6 NYCRR Part 182 (leaves DEC website) and described on New York's Endangered Species Regulations webpage.

Please note, projects that may result in increased, ongoing threats or operational impacts may need additional evaluation, even if occupied habitat is not identified presently or known to occur on the site. The Department should be notified if a listed species is observed in the vicinity of the proposed project even if the above review did not identify it occurring there.

Find Out If a Permit Is Needed

To determine if a proposed project will result in a take of ETS , a project sponsor (applicant) should submit information to the appropriate Regional Division of Environmental Permits office in the form of a Request for Determination whether an activity is subject to regulation (leaves DEC website) by the Department, also referred to as a Jurisdictional Determination. The information must be submitted in writing and take the form of a narrative that includes:

  • Project location information: site location map identifying the town, county, and nearest crossroads, and the proposed project boundaries (e.g., USGS, DOT, tax parcel map, shapefiles, etc.)
  • Photographs: include any photos of the proposed project location or habitats (forest cover, wetlands, etc.)
  • Project Description: narrative including project details, proposed activities, and scope and scale of the project
  • Preliminary project plans or drawings:
    • The plan must show existing conditions and the proposed work to be performed, including estimated limits of ground disturbance
    • Extent of any natural resources or habitats (e.g. wetlands, grasslands, or forests), and proposed impacts to those resources
    • View example wetlands plans (PDF)
  • Project timeline: what time of year work will take place, duration of proposed activities, timeline of project completion that details phasing, etc.
  • ETS information: any ETS-related survey information for the site including current habitat types or vegetation, and a narrative description of changes in land cover/vegetation that may result from your proposed project.
  • Conservation or take-avoidance and minimization measures: proposed based on species-specific or other available guidance.

Your proposed project may need permits and additional review from the Department. A formal Jurisdictional Determination letter will be sent by the Regional Division of Environmental Permit Administrators, listing all Department concerns. If you have questions after receiving the letter, reach out to your Regional Division of Environmental Permits Office for a pre-application meeting. The Department encourages potential applicants to come in early in the process to explore ways to avoid negative impacts to ETS.

Next Steps If Your Project May Impact ETS

The Department makes the final determination as to whether an ETS incidental take permit would be needed for a proposed project. If all impacts are avoided, the project can proceed without the need for an ETS incidental take permit. Species-specific guidance provides recommendations on how to achieve avoidance (i.e., elimination) of negative impacts to ETS.

  • Avoidance: The policy of the Department is to first work with an applicant to avoid impacts to ETS whenever practicable. Avoidance means there would be no adverse impacts to ETS, their occupied habitat, or to any of their essential behaviors. Avoidance is frequently accomplished by modifying the project such that no occupied habitat will be negatively impacted and ensuring that no construction occurs when ETS are present.

If a proposed project will not fully avoid all adverse impacts to ETS, an ETS incidental take permit from the Department is likely required. Impact-minimization and mitigation proposals are important components of permit applications. For a permit to be issued, the proposed actions must be expected to result in a Net Conservation Benefit (see definition below) for the species.

  • Minimization is frequently done by reducing the impacts to occupied habitat as much as possible and either timing construction activities to occur when ETS are least likely to be in the active construction area, or using a qualified species monitor. When avoidance cannot be accomplished, impacts should be reduced to the maximum extent practicable.
  • Mitigation in the broadest sense is all actions taken to counter negative effects of a proposed project and to achieve a Net Conservation Benefit.
  • Net Conservation Benefit means a successful enhancement of the species' local population, successful enhancement of the species' overall population, or some other 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 ETS or its habitat to a greater degree than if the applicant's proposed project were not undertaken.

Appropriate Net Conservation Benefit efforts are based primarily on the impacts of the specific project and must be determined through consultation with the Department. To ensure the Net Conservation Benefit effort and other mitigation measures will take place as proposed, an Implementation Agreement is required and could include upfront financial assurances.

There is a wide variety of potential methods to achieve a Net Conservation Benefit, and the regulations do not identify specific actions. Some examples include:

  • Creating more habitat for the ETS than is lost. The ratio of habitat creation needed varies by species.
  • Activities (in addition to take-avoidance and minimization measures) that reduce or remove existing threats or enhance or expand suitable habitat for the ETS, such as those discussed in species recovery, conservation, and/or management plans (see species-specific guidance below).

How To Apply For a Permit

If the Department has determined that your project needs an ETS incidental take permit because all impacts to an ETS or its habitat cannot be fully avoided, you should apply for a permit. Applications for incidental take permits are handled by Regional Division of Environmental Permits offices in collaboration with other Department technical staff.

The following links provide general guidance and information about ETS regulations. If you have additional questions after reviewing the following information, please reach out to your Regional Division of Environmental Permits office for a pre-application meeting:

Disclaimer: This webpage provides general guidance and information about ETS and project review and is not meant to substitute for a full review and Jurisdictional Determination by the Department. If you have additional questions about your project, please contact the Regional Division of Environmental Permits office.

Species-Specific Impact Avoidance and Minimization Guidance

Other Important ETS Concerns

Large-scale renewable energy projects greater than 25 megawatts in size fall under Executive Law 6-94-C and 19 NYCRR Part 900, that have specific ETS requirements only for those eligible projects. Additional information on this process can be found on the New York State Office of Renewable Energy Siting webpage (leaves DEC website).

State-protected native plants are covered by Environmental Conservation Law §9-1503 6 NYCRR 193.3 (leaves DEC website). More information can be found on the State Protected Plants webpage.

View information on obtaining permission for scientific or educational uses or exhibition or propagation of threatened and endangered species.