The Department of Environmental Conservation (DEC) recently adopted regulations implementing New York’s Endangered Species Act. The regulations reinstate previous regulatory provisions that were vacated in a 2022 court ruling. The re-issued regulations, which were finalized after a public comment period, include the entirety of the endangered and threatened species regulations as they existed prior to the 2022 court decision. The regulations define what constitutes a “take” of an endangered or threatened species; include provisions protecting the habitat of such species; and specify the application procedures and standard of review for permits authorizing the incidental take of an endangered or threatened species. According to the regulations “take” or “taking” means “pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting” of, plus “disturbing, harrying or worrying,” endangered and threatened species.
An incidental take permit is necessary when the take of a protected species is unavoidable and is not the intended purpose of the activity. An example is the take of protected frog/salamander species by a development project, which requires an incidental take permit limiting the number of individuals that can be taken, monitoring the number of fatalities from construction and requiring mitigation measures to limit mortality of the endangered species.
The tiger salamander is an endangered species in New York
PROTECT submitted comments strongly supporting the regulations, which provide crucial protections for imperiled species and their habitat. As PROTECT pointed out, the regulations reflect DEC’s years of experience in conserving at-risk species and in administering the incidental take permit program, and are consistent with prior court decisions interpreting New York’s Endangered Species Act. PROTECT noted that the regulations provide clarity and guidance concerning procedures, application requirements and standards for incidental take permits. In addition, PROTECT emphasized its full support for the requirement that applicants demonstrate a “net conservation benefit” to a protected species in order to obtain an incidental take permit. Because such permits allow the take of an already imperiled species or its habitat, it is appropriate and necessary that such action be counterbalanced by measures that provide a net benefit for the continued survival of the species and/or protection of habitat.
