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DEC "Incidental Take" Permit Regulations Survive Challenge

On July 26, 2012 the Appellate Division, Third Department affirmed the dismissal of a challenge to the New York State Department of Environmental Conservation's recently amended endangered species regulations. The regulations, contained in 6 NYCRR Part 182, included a requirement for a party contemplating development to obtain a DEC permit if that activity is likely to cause a "taking" or even an "incidental taking" of a species that is classified as threatened or endangered under New York State or Federal law. 

In Assoc. for a Better Long Island v. NYS Dept. of Environmental Conservation, 514121 (July 26), the Third Department affirmed the Albany County Supreme Court's order dismissing the Petitioners' combined Article 78/declaratory judgment action on procedural grounds. The court explained that without a specific stake in the matter, such as a pending permit application, any potential harm to the Petitioners was merely speculative. As a result, they lacked the requisite standing to proceed with the case.

The court distinguished the Petitioners' speculative harm in the case of the "incidental take" permit with the more particularized harm presented by potential zoning reclassifications. Unlike zoning reclassifications, which can alter or outlaw existing legal land uses with the stroke of a planning board's pen, the need for an incidental take permit is not a foregone conclusion in the case of every activity potentially impacting endangered or threatened species.

In fact, the court explained that whether a permit is required would likely depend on "the application of the regulations to a specific development plan", and any harm that the Petitioners complain of is "contingent on events that may not come to pass". Notably, none of the Petitioners alleged that the regulations burdened any specific project, or even that they were planning any project that would be burdened by the regulations in the foreseeable future.

A taking of an endangered or threatened species is defined by the regulations as any "pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting", and includes "lesser acts such as disturbing, harrying or worrying" of the species. 6 NYCRR Part 182.2(x). In November of 2010, the Endangered and Threatened Species Regulations were amended to expand the permit requirement to "incidental takings" as well. Incidental takings occur when an endangered or threatened species is disturbed or harmed during an activity that may not be specifically designed or intended to affect the species in any way.

The DEC requires an "incidental take" permit for any activity that is likely to negatively affect a habitat where a threatened or endangered species undertakes an "essential behavior". These behaviors include hibernating, feeding, mating or migration. Part 182.5of the regulations list the endangered or threatened species native to New York, and generalized ranges of these species can be found using the Environmental Resource Mapper on the DEC website.

While the "incidental take" regulations should put developers on notice that their project might inadvertently cause a "taking" prohibited by the State's endangered species law, the decision in Association for a Better Long Island was based on procedural, rather than substantive grounds, and is by no means the last word on the regulations. The Third Department is simply saving for another occasion a better challenge to the regulations, one in which challengers can demonstrate the unfairness or some other undue burden presented by the regulations.

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