ENV-31-10-00020-P Endangered and Threatened Species of Fish and Wildlife
8/4/10 N.Y. St. Reg. ENV-31-10-00020-P
NEW YORK STATE REGISTER
VOLUME XXXII, ISSUE 31
August 04, 2010
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-31-10-00020-P
Endangered and Threatened Species of Fish and Wildlife
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 182 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, section 11-0535
Subject:
Endangered and Threatened Species of Fish and Wildlife.
Purpose:
To clarify process and procedures for handling listed species issues in New York State.
Substance of proposed rule (Full text is posted at the following State website:http://www.dec.ny.gov):
The Department of Environmental Conservation (the department) proposes to amend the regulations pertaining to endangered, threatened and special concern species under Part 182 of 6 NYCRR. Under the New York State Endangered Species Law, endangered and threatened species may not be taken except under permit by the department. These amendments clarify the department's jurisdiction pertaining to listed species, delineate an application and review process for addressing proposals that will take listed species and establish standards for permit issuance. An incidental take permitting program for projects that will result in a take of listed species as part of otherwise legal activities is described in detail. A process consistent with Uniformed Procedures Act procedures is established for the issuance of incidental take permits when proposed actions are anticipated to result in the taking of listed species. The standard for permit issuance is that the proponent of an action that will take listed species must also take actions that ensure that the affected species will be afforded a net conservation benefit. This requirement ensures that the applicant's actions will have an overall positive affect on the status of the affected species, even if some portions of the project may be detrimental to the listed species or its habitat. Further clarification is also provided by the inclusion of several new definitions of terms associated with listed species project review.
Text of proposed rule and any required statements and analyses may be obtained from:
Dan Rosenblatt, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4750, (518) 402-8884, email: wildliferegs@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Additional matter required by statute:
SEQR documentation including an EAF and Negative Declaration are on file with the department.
Regulatory Impact Statement
1. Statutory authority: Environmental Conservation Law (ECL) 11-0535.
2. Legislative objectives: To protect threatened and endangered species from going extinct and recover populations of same to a level where listed status is no longer required.
3. Needs and benefits: The current Endangered Species Act regulations (6 NYCRR Part 182) list species that have been classified by the department as endangered or threatened and provide for the prohibition against the "take" of listed species unless permitted by the department. However, the current regulations do not establish procedures or standards for review of such permit applications. Recent court decisions in relation to the enforcement of ECL 11-0535 have provided additional clarity on the situations where such permits are necessary and how the department should proceed in such cases. These revised regulations build upon those decisions to provide a predictable regulatory framework for establishment of jurisdiction under 11-0535 and the process for addressing listed species issues, including the review and issuance of relevant permits.
4. Costs: Since these regulations do not create a new regulatory burden, there will be no significant additional costs to the department or the regulated community as a result of these regulations. However, due to an increase in the availability of information on listed species through recently initiated programs, there may be an apparent increase in the number of projects that fall under the jurisdiction of these regulations. However, those same projects would still be subject to similar requirements under the existing regulations.
5. Local government mandates: None.
6. Paperwork: The proposed regulations define the paperwork that would be necessary to obtain a permit under the new regulations. Currently, the lack of regulations delineating the information necessary for the department to render decisions and issue permits has led to the need for multiple correspondences between applicants and the department. The new regulations make explicit the information necessary to complete an application. In addition to reducing the amount of written correspondence currently required under existing regulations, the new regulations require information that should already be generated under existing regulations, including the State Environmental Quality Review Act.
7. Duplication: The proposed regulations do not duplicate any State requirement. However, there is some duplication of Federal requirements where there is overlap with species listed by the Federal Government. This overlap is necessary in order for New York State to be in compliance with federal programs regarding the issuance of permits to take listed species. This also allows the State greater flexibility in tailoring conditions for federally listed species to meet State management objectives.
8. Alternatives: There are no significant alternatives. By law (ECL, section 11-0535), when the department has determined that an endangered species will be taken, the proposed action may only legally continue under a permit issued by the department. The proposed regulatory changes provide guidance to the regulated public as to how the permit process works and when it is applicable.
9. Federal standards: For Federally listed species, standards are well established. These regulations would not supercede or replace federal standards for permit issuance. Instead, these regulations borrow definitions liberally from Federal regulations (50 CFR - Wildlife and Fisheries - part 17 - revised as of October 1, 1998 - pages 95-177) in developing a regulation that is compatible with Federal guidance. These regulations will allow for the department to participate in Federally funded species management programs such as Safe Harbor Agreements and Habitat Conservation Plans that require the issuance of incidental take permits. State permits for federally protected species would be invalid without the project proponent procurring the appropriate permit from the regulating Federal entity.
10. Compliance schedule: The proposed changes are largely based on current interpretations of the existing law and regulations, as supported by recent court decisions. Therefore, the department will be able to comply with the proposed regulatory changes within one month of implementation. It is anticipated that the regulated community be able to comply with the requirements within one month of implementation due to the similarity of the proposed regulations to existing regulations and implementation by department personnel. The regulated community will also have the opportunity to become familiar with the regulatory changes during the public review process.
Regulatory Flexibility Analysis
1. Effect of rule: This rule making will provide businesses and local governments with a better understanding of the types of projects that fall under the jurisdiction of Article 11-0535 and the requirements and procedures for projects to follow once such jurisdiction has been determined.
2. Compliance requirements: Compliance requirements are not altered over existing regulations. As already required under SEQR and Article 11-0535, listed species impacts must already be addressed. Compliance with this requirement is made easier through the issuance of better guidance and the creation of a predictable, transparent process for evaluating the need for permits and the regulatory requirements necessary for the issuance of said permits.
3. Professional services: As is the case under the existing regulations, environmental consultant services will continue to be necessary for projects subject to the jurisdiction of this rule making.
4. Compliance costs: This regulation does not impose any additional burden on affected local governments and small businesses. Instead, it provides a better defined process for project proponents to follow when they fall under the jurisdiction of this rule making. Those entities that pursue projects subject to the jurisdiction of this rule making will continue to adjust their projects to avoid the taking of listed species. This rule making makes the alternative process explicit, creating an opportunity for project proponents to proceed by preparing and funding an effective listed species mitigation plan and obtaining a permit to authorize the planned activity.
5. Economic and technological feasibility: The implementation of this rule making is both economically and technologically feasible.
6. Minimizing adverse impact: These regulations are clarifications of the existing law and regulation based on over 30 years of program implementation under the existing regulations and supplemented with legal decisions relevant to this regulation. As such, this rule making is not anticipated to create any new or additional impacts on local government or small business, as the existing rule already established the prohibitions and permit needs that are clarified in this rule making. The focus of the rule making is on avoidance. Projects that are able to achieve avoidance of impacts do not require permits at all. Minimization of adverse environmental impacts is accomplished through permitting standards. Permits will only be issued when projects achieve a net conservation benefit, which requires that status of impacted listed species and/or their occupied habitats are improved over pre-project conditions.
7. Small business and local government participation: The State Administrative Procedures Act requires agencies to provide public and private interests the opportunity to participate in the rule making process and/or public hearings. The Department will hold public hearings on Part 182 throughout the state and will notify interested parties of this proposed rulemaking. Listed species issues will also still primarily be addressed through the SEQR process, with local governments continuing to frequently be lead agencies.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
Part 182 applies statewide and this rule making will not alter that. However, a new exemption for routine and ongoing agricultural activities may reduce the extent of application of this regulation in some rural areas.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The changes that the department is proposing will establish a predictable and transparent process for the implementation of the State's Endangered Species Law. Existing law and regulation requires permits for activities that result in harm to listed species, but the current regulations do not provide any relevant guidance on how the department will review projects or permits. This rule provides guidance and procedures to assist project proponents assess and avoid impacts to listed species. Permit procedures are established for those projects that can not avoid such impacts. These regulations codify the existing process utilized by the department and make that process open and accessible to the public.
3. Costs:
The proposed rule does not create any new requirement for landowners or municipalities, as it provides clarification to existing regulations where little guidance currently exists. The impact of this rule making on rural communities may actually reduce any costs associated with this rule as an exemption is provided for routine and ongoing agricultural activities, where none previously existed.
4. Minimizing adverse impact:
These regulations are clarifications of the existing law and regulation based on over 30 years of program implementation under the existing regulations and supplemented with legal decisions relevant to this regulation. As such, this rule making is not anticipated to create any new or additional impacts on rural communities, as the existing rule already established the prohibitions and permit needs that are clarified in this rule making. Additionally, there are explicit exemptions for routine and ongoing agricultural activities which should mitigate the likelihood of adverse impacts in rural farming communities.
5. Rural area participation:
The State Administrative Procedures Act requires agencies to provide public and private interests in rural areas the opportunity to participate in the rule making process and or public hearings. The department will hold public hearings on Part 182 in upstate and rural areas and will notify interested parties of this proposed rule making.
Job Impact Statement
1. Nature of impact:
This rule making will modify the existing regulations to clarify the jurisdictional authority of the department over endangered species and creates standard procedures for the determination of jurisdiction and establishes the parameters for the application, review and issuance of required permits. The actions outlined in the regulation have been undertaken by the department under existing regulatory authority and supported through legal decisions relevant to the underlying law and regulations. Therefore, the impact on jobs is estimated to be neutral.
2. Categories and numbers affected:
As with the existing regulation, projects may not take listed species. While there may be a perception that this regulation may increase the requirements of project proponents in relation to listed species, this rule making provides guidance and delineates procedures that will enable project proponents to more effectively design their projects and assemble the information required by the department. The result will be an increase in the efficiency in which listed species issues are addressed, potentially resulting in more rapid project approvals. This rule making clarifies the types of actions that would result in a take of listed species and provides a transparent process for applicants to pursue alternatives to harmful projects. No net impact to jobs is expected.
3. Regions of adverse impact:
This rule making makes no modification of the regions impacted by the existing regulation.
4. Minimizing adverse impact:
This rule making includes explicit exemptions for routine and ongoing agricultural activities, where no such exemption formerly existed. Therefore, any adverse impacts of the existing regulation may actually be reduced through this rule making.
