Briefing on Proposed Amendments to Endangered Species Regulations

1. Briefing on Proposed Amendments to Endangered Species Regulations

2. New York Endangered Species ActECL Article 11-0535 • Enacted in 1970 • Section 1 defines “endangered” and “threatened” species and authorizes DEC to promulgate list of protected species. • Section 2 prohibits “the taking” of any endangered or threatened species “except under license or permit from the department.” • “Taking” is defined in ECL-11-0103(13) as including “pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting . . . and all lesser acts such as disturbing, harrying or worrying . . . .”

3. Current Implementing Regulations 6 NYCRR Part 182 • Defines few terms but leaves many important terms undefined • Lists protected species • Prohibits “taking” without permit (but does not define “take”)

4. Current Regulation for Incidental Take Permit Issuance §182.4 License or permit: • The department may, at its discretion, issue a license or permit to a person to take, transport, sell, import and/or possess endangered or threatened species of fish and wildlife for purposes it deems legitimate. Such license or permit shall state the species to which it applies and any other conditions the department may deem appropriate.

5. Deficiencies in Current Regulations: • No criteria for listing or delisting species • No procedures for incidental take permit application or review • No specific standards or criteria for incidental take permit issuance or denial • Key terms are not defined and fail to incorporate key court interpretations of “take”

6. “We hold that a prohibited taking of a protected species may occur upon the modification of its habitat . . . We conclude that habitat interference may constitute a taking under ECL 11-0535.” State v. Sour Mountain Realty, 276 AD2d 8, 9, 15 (2nd Dept. 2000). “White Oak . . . failed to establish that some legal or factual basis existed for precluding the DEC from exercising its power to provide for the preservation of the tiger salamanders . . . we find no triable issue of fact exists as to whether the construction will result in an illegal “taking” of tiger salamanders.” State v. White Oak Co., 13 AD3d 435, 437 (2nd Dept. 2004).

7. Uncertainty Exists Within the Regulated Community Regarding Endangered Species Issues: • Each year, DEC conducts approximately 600 project reviews involving endangered or threatened species • One incidental take permit issued (White Oak) • Eight projects currently in review need Article 11 permits

8. White Oak Incidental Take Permit DEC issued incidental take permit because: (i) take is incidental to an otherwise lawful activity (housing development); (ii) take does not jeopardize the survival of the population at issue (tiger salamander); and (iii) permit requires mitigation measures that achieve a net conservation benefit for the species.

9. Net Conservation Benefit as Benchmark for Permit Issuance Example from White Oak incidental take permit To offset permanent loss of 7 acres of occupied tiger salamander habitat and isolation of remaining habitat areas: • Required restoration of 4 acres of denuded habitat within core habitat area to enhance existing habitat • Required construction of 2 new vernal pools within protected area to enhance migration and recruitment • Required construction of chain link fencing around protected habitat to reduce habitat threat from ATV use • Required upland connectivity with adjacent occupied sites

10. What the Amendments Do: • Establish criteria for listing and delisting species • Define key terms such as “lesser acts,” “essential behavior,” “adverse modification of habitat,” and “net conservation benefit” • Specify that Article 11 permits are only required for projects that have unavoidable negative impacts on protected species or their occupied habitat • Provide that Article 11 permit review will follow UPA procedures • Establish specific standards for permit issuance or denial

11. Key Definitions: “Take or Taking” means the pursuing, 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.

12. Key Definitions: “Lesser acts”means, for the purposes of this Part, harassing, harming, maiming, wounding or collecting any species listed as endangered or threatened in [this] Part, any act which is likely to cause the death of or injury to any individual member(s) of a [listed] species, an adverse modification of habitat of a [listed] species, and any interference with or impairment of an essential behavior of a [listed] species.

13. Key Definitions: “Adverse modification of habitat” means any alteration of the occupied habitat of any species listed as endangered or threatened in this Part that, as determined by the department, is likely to negatively affect one or more essential behaviors of such species.

14. Key Definitions: “Occupied habitat”means the geographic are in New York within which a species listed as endangered or threatened in this Part has been determined by the department to exhibit one or more essential behaviors. Once designated as occupied habitat, the designation will continue until the department determines that the habitat is no longer suitable or that monitoring has indicated that reoccupation is unlikely.

15. Key Definitions: “Essential behavior” means any of the behaviors exhibited by a species listed as endangered or threatened in this Part that are a part of its normal or traditional life cycle and that are essential to its survival and perpetuation. Essential behavior includes behaviors associated with breeding, hibernation, reproduction, feeding, sheltering, migration, movement and overwintering.

16. Key Definitions: “Net conservation benefit”means a successful enhancement of the species’ overall population or contribution to the recovery of the species in New York. To be classified as a net conservation benefit, the enhancement or contribution must benefit the affected species . . . or its habitat to a greater degree than if the applicant’s proposed activity were not undertaken.

17. Permit Issuance: • Proposed activity is lawful and take is incidental • Mitigation plan and implementation agreement approved by department • Mitigation plan provides net conservation benefit

18. Permit Denial: • Proposed activity will result in loss of occupied habitat, loss of individual member(s) of species, or interference with essential behaviors; and • Net conservation benefit cannot be achieved; or • Survival or recovery of species is jeopardized by proposed activity

19. CONCLUSION The new regulations will provide the public, Department staff, lead agencies and potential applicants with clear guidance regarding: • The criteria DEC applies in determining whether to list or delist a species; • What triggers DEC’s jurisdiction over protected species and their habitat; • Under what circumstance an incidental take permit is required; • The procedures to be followed during the permit application and review process; and • The standards and criteria DEC applies when determining whether to grant or deny a permit.

20. QUESTIONS?