DEC Issued Draft Proposals to Strengthen Endangered and Threatened Species Regulations
On August 5, 2010, DEC announced a 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 would establish criteria for the listing and de-listing of species and requirements for restoration and recovery plans. The proposals would 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.
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: (1) if the current number of viable and self-sustaining populations of the species statewide is not sufficient to ensure its continued survival; (2) if threatened destruction, modification or curtailment of the species' habitat or range within the state threatens the continued survival of the species, and (3) the absence of existing regulatory mechanisms to protect the species or its habitat. Examples of de-listing criteria include: (1) 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; (2) other regulatory mechanisms have been adopted to adequately protect the species or its habitat; and (3) the sources of population declines, such as disease or habitat loss, have been addressed and abated.