N.Y. Comp. Codes R. & Regs. tit. 6 § 182.11

Current through Register Vol. 46, No. 45, November 2, 2024

Section 182.11 - Incidental take permit; specific application requirements

A permit under this section is required for any activity that is likely to result in the take or a taking of any species listed as endangered or threatened in this Part as determined by the department and that is not otherwise exempt under section 182.13 of this Part.

(a) Incidental take permit. The department may, at its discretion, issue a permit that authorizes the incidental take of a species listed as endangered or threatened in this Part. An incidental take permit shall include an endangered or threatened species mitigation plan as described in subdivision (d) of this section that the department has determined will result in a net conservation benefit to the listed species and which has been approved by the department.

(b) Eligible applicants. Generally, the person implementing the proposed action or the person most involved in the proposed action that is subject to this Part.

(c) Permit application requirements. A complete application for an incidental take permit must include a properly completed application for the permit and any supplemental forms. In addition to the general requirements for permit applications, an applicant must provide to the department's appropriate regional permit administrator:

(1) the applicant's full name, mailing address and telephone numbers. If the applicant is a corporation, firm, partnership, association, institution, or public or private agency, the name and address of the person responsible for the proposed activity or project requesting the permit, the president or principal officer, and the registered agent (if any) for the service of process;

(2) a detailed description of the proposed activity and its location, the species listed as endangered or threatened in this Part for which a take or taking is likely to occur in connection with the activity, the nature and expected extent of the take or taking, and the impacts on the species that are likely to occur as a result of the proposed activity including but not limited to effects on essential behaviors and occupied habitat;

(3) an analysis of whether issuance of an incidental take permit would jeopardize the continued existence of the subject population of the species in question. The analysis shall include any studies of current or past use of the occupied habitat by the species, maps or descriptions of any occupied habitat, consideration of the species' capability to survive and reproduce, and a discussion of any adverse impacts of the taking on those capabilities based upon known population trends and known threats to the species;

(4) a description of any efforts to modify the proposed activity in order to minimize or avoid entirely any take or taking of the species;

(5) an endangered or threatened species mitigation plan as described in subdivision (d) of this section;

(6) an implementation agreement as described in subdivision (e) of this section; and

(7) an executed certification statement as follows: "I certify that the information submitted in this application is complete and accurate to the best of my knowledge and belief. I understand that any false statement herein may subject me to denial, suspension or revocation of this permit, and to civil and criminal penalties under the laws of the State of New York."

(d) Endangered or threatened species mitigation plan. The endangered or threatened species mitigation plan required by this section shall include:

(1) the measures the applicant will undertake to minimize and fully mitigate impacts to any species listed as endangered or threatened in this Part for which the incidental take permit application is being submitted. All proposed measures shall be capable of successful implementation, and shall be legally, technologically, economically and biologically practicable;

(2) data and information to ensure that the taking sought to be authorized by the incidental take permit will not reduce the likelihood of the survival or recovery of the species in New York;

(3) a proposed method for monitoring the effectiveness of the plan; and

(4) a description of the funding source, the level of funding, and the guarantee or assurance of funding that the applicant will provide to implement the endangered or threatened species mitigation plan including but not limited to bonds, insurance, or escrow.

(e) Implementation agreement. The implementation agreement required by this section must:

(1) identify all persons that will be involved in implementing the endangered and threatened species mitigation plan, with individuals responsible for funding and implementing the plan clearly identified;

(2) specifically identify the timeline for implementation of measures required by the plan;

(3) specify the funding available for, and dedicated to, implementation of the plan and describe the method of assurance or guarantee that the funds will be available as necessary; and

(4) be signed by all involved persons identified pursuant to paragraph (1) of this subdivision.

(f) Federal requirements. In the event that a proposed activity is also subject to regulation under the Federal Endangered Species Act, the department will work cooperatively with Federal agencies in the review and processing of any associated Federal habitat conservation plan, safe harbor agreement, and incidental take license issued, approved, or adopted pursuant to the Federal Endangered Species Act. In all such cases, compliance with Federal requirements shall not relieve a person from compliance with this Part for any proposed activity occurring in New York State that is likely to result in the take or taking of a species listed as endangered or threatened in this Part. In the discretion of the department, a Federal habitat conservation plan or safe harbor agreement may be substituted in whole or in part for the application, endangered and threatened species mitigation plan and implementation agreement required by this Part.

(g) Additional requirements and information. The department may, at its discretion, require the applicant to provide reasonable access to the project site by department personnel or their designee for the purpose of assessing the effects of the proposed activity, determine compliance with permit conditions and the endangered and threatened species mitigation plan, and monitoring the effectiveness of any permit conditions or measures required by an endangered and threatened species mitigation plan. Supplemental information that the department determines is necessary to review the permit application may be requested at any time.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 182.11