New York State Incidental Take Permit (12-NY-d)
“Take” or “taking” means the pursuing, shooting, hunting, killing, capturing, trapping, snaring, netting, disturbing, harrying or worrying of an endangered or threatened species. The “take” or “taking” of an endangered or threatened species also includes the adverse modification of the habitat of protected species. N.Y. Code R. & Regs. tit. 6 § 182.2(x). An “incidental take” is the “taking” of an endangered or threatened species that is incidental to, and not the intended purpose of, an otherwise lawful activity. N.Y. Code R. & Regs. tit. 6 § 182.2(j).
Listings of New York’s endangered and threatened species are available at N.Y. Code R. & Regs. tit. 6 §§ 182.5(a) and (b).
Note: The DEC does not require a hydropower developer to obtain an incidental take permit for a FERC-licensed project that is subject to regulation under Section 7 of the Federal Endangered Species Act. For more information on the Federal Endangered Species Act Section 7 Consultation Process, see:New York Department of Environmental Conservation – Frequently Asked Questions About New York’s Endangered Species Regulations.
State Incidental Take Permit Process
12-NY-d.1 to 12-NY-d.2 – Schedule Pre-Application Conference
Early on in the planning process, the developer should schedule a pre-application conference with the appropriate DEC regional Environmental Permits Office. The pre-application conference provides the developer with an opportunity to explain the proposed project to the DEC staff and to obtain preliminary answers to questions regarding:
- Permit requirements;
- Listed endangered and threatened species in the project area;
- Application procedures; and
- Standards for permit issuance.
Contact information for the DEC regional Environmental Permits Offices is available at the agency’s Department of Environmental Conservation – Regional Permit Administrators (New York) website.
12-NY-d.3 – Incidental Take Permit Application
To apply for an Incidental Take Permit, the developer must submit an application to the regional permit administrator. The developer’s complete application must include the following:
- A completed Joint Application Form;
- The developer's full name, mailing address and telephone number;
- A detailed description of the proposed activity and its location, the endangered or threatened species likely to be taken, the nature and expected extent of the taking, and the impacts on the species;
- An analysis of whether issuing an incidental take permit would jeopardize the continued existence of the species in question;
- A description of any efforts to modify the proposed activity to minimize or avoid the taking;
- An endangered or threatened species mitigation plan, which must include the following:
- The measures the developer will undertake to minimize and fully mitigate impacts to any species listed as endangered or threatened for which the developer is submitting the incidental take permit application. All proposed measures shall be capable of successful implementation, and must be legally, technologically, economically and biologically practicable;
- 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;
- A proposed method for monitoring the effectiveness of the plan; and
- A description of the funding source, the level of funding, and the guarantee or assurance of funding that the developer will provide to implement the endangered or threatened species mitigation plan including but not limited to bonds, insurance, or escrow. N.Y. Code R. & Regs. tit. 6 § 182.11(d);
- An implementation agreement, (see N.Y. Code R. & Regs. tit. 6 § 182.11(e)); and
- 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."
For further details on the requirements of an Incidental Take Permit application, see N.Y. Code R. & Regs. tit. 6 § 182.11(c).
12-NY-d.4 to 12-NY-d.7 – Review Application Materials for Completeness
Within 15 days of receiving the developer’s application for an Incidental Take Permit, the DEC must inform the developer of whether the application is complete. If the application is incomplete, the DEC will provide the developer with a Notice of Incomplete Application and request any additional information or documents required for the DEC to make a determination. N.Y. Code R. & Regs. tit. 6 § 621.6.
At any time during the review process, the DEC may request any additional supplemental information the DEC determines is necessary in order to review the developer’s permit application. N.Y. Code R. & Regs. tit. 6 § 182.11(g).
12-NY-d.8 – Is the Proposed Project Considered a Major Project or a Minor Project?
The DEC may consider a project with a pre-existing DEC approved Federal habitat conservation plan or Safe Harbor Agreement—having demonstrated a “net conservation benefit”—a minor project. The DEC generally considers all other projects to be major projects.
12-NY-d.9 – Publish Notice of Complete Application
If the proposed project is considered to be a major project, the DEC must publish notice of the developer’s complete Incidental Take Permit application in the Environmental Notice Bulletin and a designated local newspaper. In the Notice, the DEC sets a public comment period. N.Y. Code R. & Regs. tit. 6 § 621.7.
12-NY-d.10 to 12-NY-d.11 - Will the DEC Hold a Public Hearing?
After evaluating the developer’s application and any comments received, the DEC determines whether to hold a public hearing. If the DEC decides to hold a public hearing, the DEC must notify the developer and all persons who filed comments on the project within 60 days of determining that the developer’s application is complete. N.Y. Code R. & Regs. tit. 6 § 621.8.
12-NY-d.12 – Hold Public Hearing
The DEC must conduct the public hearing within 90 days after determining that the developer’s application is complete. N.Y. Code R. & Regs. tit. 6 § 621.8. At the public meeting, interested parties may ask questions and provide oral and written comments regarding the developer’s permit application.
12-NY-d.13 – Review Developer’s Application and Public Comments (If Applicable)
Once the developer’s application is complete and the hearing (if held) has concluded, the DEC reviews the developer’s application and any public comments received. The DEC may decide to approve, conditionally approve, or deny the developer’s request for an incidental take permit. For minor projects, the DEC must make a permit decision within 45 days of determining that the developer’s application is complete. N.Y. Code R. & Regs. tit. 6 § 621.10. For major projects, the DEC must make a permit decision within 90 days of determining that the developer’s application is complete if no hearing is held or, if a hearing is held, within 60 days after receiving the final hearing records. N.Y. Code R. & Regs. tit. 6 § 621.10.
12-NY-d.14 – Does the DEC Approve the Developer’s Application for an Incidental Take Permit?
In order to issue an incidental take permit, the DEC must determine the following:
- The taking of an endangered or threatened species would be incidental to, and not the purpose of, an otherwise lawful activity;
- The developer has submitted an endangered and threatened species mitigation plan and an implementation agreement, approved by the DEC in writing;
- The conditions of the incidental take permit and measures set forth in the developer’s mitigation plan will result in a net conservation benefit to the species in question.
“Net conservation benefit” means a successful enhancement of the species’ subject population, successful enhancement of the species overall population, or a contribution to the recovery of the species within New York. N.Y. Code R. & Regs. tit. 6 § 182.2(n). Generally, a net conservation benefit is achieved when the adverse impacts of the proposed activity on a protected species or its habitat will be outweighed by the positive impacts anticipated from the mitigation measures proposed by the developer. New York Department of Environmental Conservation – Frequently Asked Questions About New York’s Endangered Species Regulations.
12-NY-d.15 - Incidental Take Permit
Once the DEC issues an incidental take permit, the developer may continue with the proposed project. The permit term of the developer’s Incidental Take Permit runs concurrently with the duration of the developer’s implementation agreement, as approved by the DEC. If the project may result in an incidental take beyond the period of time covered in the Incidental Take Permit, the developer must file for renewal of the Incidental Take Permit at least 60 days prior to the permit expiration date. N.Y. Code R. & Regs. tit. 6 § 182.12(c)-(d).
The DEC may require the developer to provide reasonable access to the project site in order to assess the effects of the project and to assess the developer’s compliance with permit conditions and the mitigation plan. N.Y. Code R. & Regs. tit. 6 § 182.11(g).
12-NY-d.16 – Request a Hearing (If Appropriate)
If the DEC denies the developer’s application for an incidental take permit, or if the permit is issued with significant conditions attached, the developer may request a hearing. To request a hearing, the developer must submit a request, in writing, to the regional or chief permit administrator within 30 days of the date the DEC mailed the notice of denial or the permit. N.Y. Code R. & Regs. tit. 6 § 621.10.
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