Earlier this month, the New York State Department of Environmental Conservation (DEC) adopted changes to its Endangered and Threatened Species Regulations, codified at 6 NYCRR Part 182. The regulations, which took effect on Nov. 3, contain several significant changes, including the establishment of criteria for adding and removing endangered and threatened species from the state’s listing and changes to the so-called “incidental take permit” requirements, which generally require a permit for any activity “that is likely to result” in the take or a taking of any endangered or threatened species. The latter changes set forth the application requirements for an incidental take permit and describe the standards and criteria the DEC will apply when determining whether to grant or deny such a permit.
As construction and development begin to pick up across the state, the incidental take permit regulations will garner increasing attention from developers, property owners and local governments. Already, there has been some concern expressed that the regulations impose new requirements (the term “incidental take permit” is new) that will severely burden or limit development, even though the law has long required a permit for activities that result in the “take” of endangered or threatened species, including where the “take” is incidental to, rather than the primary purpose of, an action.1 A fair review of these rules, however, demonstrates that these new regulations should make the land use road clearer and more easily navigated for all involved.
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