N.Y. Comp. Codes R. & Regs. tit. 6 § 182.9

Current through Register Vol. 46, No. 50, December 11, 2024

Section 182.9 - Request for determination whether activity is subject to regulation

(a) Any person proposing an activity or any entity with regulatory oversight over a proposed activity may request a determination from the department as to whether the proposed activity is likely to result in the take or taking of any species listed as endangered or threatened in this Part and is therefore subject to regulation under this Part. Failure to ask the department for such a determination does not remove the subject activity from the potential for regulation under this Part.

(b) A request for a determination under subdivision (a) of this section shall be directed to the appropriate regional permit administrator, shall be in writing and shall, at a minimum, contain a full description of the activity being proposed that includes a proposed site plan showing the limits of disturbance and a map of the location of the proposed activity that includes the address and tax parcel identification.

(c) Department response to request for determination.

(1) Within 30 calendar days of receipt of a request for determination, the department shall provide a written answer to the person making the request stating whether the proposed activity is subject to regulation under this Part, requesting additional information necessary to make such a determination, or advising that one or more of the factors cited in paragraph (3) of this subdivision require an extension of the 30-day time period.

(2) If the department determines that the proposed activity is subject to regulation under this Part, the department's response must describe the take or taking that may result from the proposed activity, including any adverse modification of habitat and/or interference with or impairment of an essential behavior of a species listed as endangered or threatened in section 182.5 of this Part.

(3) In the event that weather, the subject species' essential behavior, habitat conditions or other environmental factors prevent the department from making a determination within 30 calendar days, it may extend such time period until a determination can be made.

(4) If the department determines the proposed activity is not subject to regulation under this Part, the department's determination is valid for one year from date of issuance as long as there are no changes to the activities or locations proposed in the jurisdictional request and no federally listed species are confirmed within the project footprint prior to the expiration of one year.

(d) All determinations made under this section will be kept on file at the appropriate regional office for three years.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 182.9

Amended New York State Register March 17, 2021/Volume XLIII, Issue 11, eff. 3/17/2021

Adopted New York State Register December 4, 2024/Volume XLVI, Issue 49, eff. 12/4/2024