New York's Endangered Species Regulations
DEC's Endangered Species Regulations
The Department of Environmental Conservation (DEC) last adopted changes to its Endangered and Threatened Species Regulations on March 23, 2021. The current regulations are found in 6 NYCRR Part 182 (leaves DEC website).
Changes made in 2021 included:
Clarification of exemptions to the need for incidental take permits.
- Existing agricultural activity exemption applies as long as activity occurred within the past 5 years (e.g. row crop field left fallow for 4 years can be converted back to row crops without a permit).
- Revises experimental population exemption to include incidental take.
- Creates new exemption for "habitat" that occurs within or upon human structures.
- Exemptions apply only to incidental take, not the intentional harm of listed animals.
Improvements to the jurisdictional determination review process (making an official identification).
- Specifies the need for site plans, description of activity, tax parcel ID, and limits of disturbance to be included in request.
- DEC response time for a compliant jurisdictional request will be 30 calendar days.
- Determinations of non-jurisdiction will be valid for one full year from the date of issuance.
Created a new experimental population definition.
- Experimental population designation could apply to any endangered or threatened species. Designation requires the following:
- public posting of proposal in the Environmental Notice Bulletin;
- posting must specify geographic area to which designation applies;
- area must be outside of current occupied habitat of the species; and
- area must include enough protected suitable habitat so that population establishment is deemed likely.
- Once designated, no incidental take permits are required within the specified geographic area.
- Enables the DEC to take advantage of recovery opportunities without incurring regulatory impacts on non-cooperating landowners.
Corrected a discrepancy in the listing of threatened and special concern species.
- Criteria for considering threatened status changed from being listed in one adjacent state or province to being listed in three adjacent states or provinces.
- Criteria for special concern status changed from being listed in three adjacent states or provinces to being listed in any adjacent state or province.
How the New York Endangered Species Regulations Work
DEC utilizes its authority under the State Environmental Quality Review Act and other permitting authorities to assess potential environmental impacts and make recommendations to project proponents on how to avoid or reduce those impacts. The same approach is followed for the protection of endangered and threatened animals (listed species). However, when a project proponent cannot fully avoid adverse impacts to listed species, the regulations regarding issuing a permit under 6 NYCRR Part 182 come into play. The regulations require a permit for any taking of threatened or endangered species. Taking is defined in the regulations to include not only the direct killing of listed species, but also actions that are expected to result in harm to individuals, including adverse impacts to habitats occupied by listed species. The permit required under existing law (ECL Section 11-0535) and regulations (Part 182) for activities that may result in the take of endangered or threatened species is an incidental take permit. These regulations 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.
Please note that some situations are not subject to these regulations:
- Plants listed under the authority of ECL Section 9-1503.
- Large scale renewable energy projects are reviewed and approved under separate laws and regulations (e.g. Article 10 of Public Service Law and Section 94-C of the Executive Law).
The permit requirements under these regulations only apply to animal species listed as endangered or threatened as defined in Part 182. An incidental take permit is not required for activities affecting species of special concern in Part 182. DEC regulates activities that will result in direct harm to listed species or the adverse modification of the occupied habitat of endangered or threatened species. The DEC'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. The regulations adopt the definition of "take" as articulated by those court decisions.
Proposed Activities that Trigger a Permit Requirement
In order to trigger the permit requirement, a proposed activity must either be likely to result in the take of individuals of a listed animal or 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:
DEC determines whether habitat is occupied habitat for jurisdictional purposes based on whether there are verified reports of a protected species engaging in one or more essential behaviors in the geographic area in question. A verified report is one for which the DEC has been able to determine the accuracy and reliability of the information contained in the report. This is normally accomplished either through direct observation by DEC staff or by DEC staff verifying the accuracy of reports made by third parties. DEC works with the New York Natural Heritage Program to map verified reports and provide screening tools for both the public and DEC staff to identify areas where listed species are known to occur.
In most cases, identification of a location as occupied habitat requires more than just a single observation of a listed species at a location. 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 the regulations. However, if that same protected bird species is observed using the field for breeding (i.e., nesting or raising young), it is likely that the field would be classified as occupied habitat.
Once habitat is verified to be occupied by a protected species, the location will be assumed to remain occupied unless the habitat is no longer suitable and there have been recent surveys confirming that the species is no longer present. No incidental take permit would be required if appropriate surveys confirm that the species is no longer present in the habitat.
DEC uses a screening distance around verified reports that is generally based on the home range sizes of the species. This screening distance allows the DEC to identify projects that have the potential to harm listed species. However, most projects ultimately do not require an incidental take permit.
For example, in 2015 approximately 5500 new projects were reviewed by the DEC, of which approximately 600 were identified as taking place in proximity to protected species. However, only 5 of those projects were 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.
Determining if a Permit is Required
A permit is only required when an activity is likely to cause direct harm to listed animals or is occurring in occupied habitat and will result in adverse modification of that habitat.
DEC's Natural Heritage Program maintains a database on documented occurrences of protected species in New York. This data is made accessible through the online application, the Environmental Assessment Form Mapper. This tool allows anyone considering a project to enter their project area and generate a Long or Short Environmental Assessment Form that will be pre-filled with data from all of the Department's relevant databases, including the Natural Heritage locations for listed animals. Alternatively, landowners and project sponsors 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 and a description of the proposed activity to:
Natural Heritage Program
Albany NY, 12233
Additional information concerning the presence of protected species can be obtained from regional DEC offices.
Exemptions from Permit Requirements
The regulations provide a specific exemption for an accidental and unforeseeable take of a protected species. 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 be put into place to avoid additional take of the species.
Ongoing Agricultural Activities
The regulations also 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. For grassland-dependent species, agricultural activity is sometimes directly responsible for maintaining appropriate habitat on the landscape.
Management of Forests
In contrast to the habitat types created by agricultural activities, forested habitat may be utilized by endangered and threatened species year-round and over many years. DEC recognizes that most forest management activities in most locations do not result in permanent conversion of habitat and thus are not anticipated to result in adverse impacts to protected species or their habitat. However, bald eagles, rattlesnakes (timber and Eastern massasauga), cricket frogs, tiger salamanders, bats (Indiana and Northern long-eared), and spruce grouse are examples of 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.
- Rattlesnakes can be found throughout forested habitat in many areas outside of the New York City and Long Island Region.
- 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.
- Listed bats can be found in almost any forested habitat outside of New York City, but they all spend the winter hibernating outside of forested habitat.
- 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.
When protected species are present, there are frequently options for harvesting that can avoid adverse impacts to most species. Nevertheless, forests cover more than 60% of New York's landscape and, over the long term, conversion of forests for land development activities could potentially affect the survival of protected species in New York.
Permit Application and Review Process
When a permit is determined to be necessary, 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. The regional Division of Environmental Permits staff serve as the coordinating entity for receipt of applications and issuance of any permits. The UPA Joint Application for Permit (PDF) includes incidental take permits. The information necessary to complete an application for an incidental take permit is outlined in Part 182.11. The application must include all the relevant information to be considered complete and start the review time frame under UPA.
The application must include:
- a full project description;
- an assessment of the efforts made to avoid and minimize impacts to listed species;
- an assessment of the extent of the impacts to listed species or their habitats;
- an endangered species mitigation plan that lays out how the applicant proposes to provide a net conservation benefit; and
- an implementation agreement that identifies the funding available and who is responsible for implementing the proposed endangered species mitigation plan.
Net Conservation Benefit
The regulations define a "net conservation benefit" as a successful enhancement of the species' overall population or 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. The proposed 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, and in the particular habitat and life history needs of protected species.
The criteria applied by DEC in determining whether or not to issue an incidental take permit are set forth in Part 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 perform measures that will result in a net conservation benefit to the protected species impacted by the proposed activity.
DEC has issued incidental take permits for a variety of projects, including residential, industrial, and commercial developments in habitats varying from marine waters, freshwater streams, wetlands, grasslands, and forests. These projects affected a wide range of protected species, including Indiana bat, tiger salamander, bald eagle, shortnose sturgeon, Henslow's sparrow, upland sandpiper, northern harrier, timber rattlesnake, freshwater mussels, and short-eared owl.
The mitigation plans approved by DEC for these projects included many options for mitigation measures, including:
- the purchase and protection by conservation easement of existing occupied habitat;
- permanent protection of migration corridors;
- creation of new suitable breeding habitat;
- construction of features to avoid vehicle collisions; and
- other land management activities designed to enhance survival and recovery of the protected species.
In appropriate situations, additional 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. The regulations do not specify how a net conservation benefit must be met, so applicants have flexibility on what they can propose.