2023 Vermont Statutes › Title 10 Appendix - Conservation and Development › Chapter 1 - Game › App § 10. Vermont endangered and threatened species rule

§ 10. Vermont endangered and threatened species rule
1.0 Authority
This rule is adopted pursuant to 10 V.S.A. Chapter 123 which provides that the Secretary “shall adopt by rule a State endangered species list and a State threatened species list,” and may “adopt rules for the protection, conservation, or recovery of endangered and threatened species.”
2.0 Purpose
The purpose of this rule is to identify and list species of wild plants and animals and designate critical habitats that have been determined by the Secretary to require protection under Vermont law. The rule also sets out a process for the issuance of permits for the taking and possession of endangered and threatened species and the destruction or adverse impact to designated critical habitat.
3.0 Definitions
3.1 “Accepted silvicultural practices” means the accepted silvicultural practices defined by the Commissioner of Forests, Parks and Recreation, including the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont adopted by the Commissioner of Forests, Parks and Recreation.
3.2 “Critical habitat” for a threatened species or endangered species means: (A) a delineated location within the geographical area occupied by the species that: (i) has the physical or biological features that are identifiable, concentrated, and decisive to the survival of a population of the species; and (ii) is necessary for the conservation or recovery of the species; and (iii) may require special management considerations or protection; or (B) a delineated location outside the geographical area occupied by a species at the time it is listed under 10 V.S.A. § 5402, Vermont Endangered and Threatened Species Rule that: (i)(I) was historically occupied by a species; or (II) contains habitat that is hydrologically connected or directly adjacent to occupied habitat; and (ii) contains habitat that is identifiable, concentrated, and decisive to the continued survival of a population of the species; and (iii) is necessary for the conservation or recovery of the species.
3.3 “Destroy or adversely impact” means, with respect to critical habitat, a direct or indirect activity that negatively affects the value of critical habitat for the survival, conservation, or recovery of a listed threatened or endangered species.
3.4 “Endangered Species” means a species that has been listed as endangered by the Secretary because the species normally occurs in the State and its continued existence as a sustainable component of the State’s wildlife or wild plants is in jeopardy, or it is listed as an “endangered species” under the federal Endangered Species Act.
3.5 “Farming” shall have the same meaning as used in 10 V.S.A. § 6001(22) of this title.
3.6 “Forestry operations” means activities related to the management of forests, including a timber harvest; pruning; planting; reforestation; pest, disease, and invasive species control; wildlife habitat management; and fertilization. “Forestry operations” include the primary processing of forest products of commercial value on a parcel where the timber harvest occurs.
3.7 “Habitat” means the physical and biological environment in which a particular species of plant or animal lives.
3.8 “Harming,” as used in the definition of “take” or “taking” in this rule means: an act that kills or injures a threatened or endangered species; or the destruction or imperilment of habitat that kills or injures a threatened or endangered species by significantly impairing continued survival or essential behavioral patterns, including reproduction, feeding, or sheltering.
3.9 “Plant” means any member of the plant kingdom, including seeds, roots, and other parts thereof. As used in this rule, plants shall include fungi.
3.10 “Possession” means holding, controlling, exporting, importing, processing, selling, offering to sell, delivering, carrying, transporting, or shipping by any means a member of a species.
3.11 “Secretary” means the Secretary of the Agency of Natural Resources except where otherwise specified.
3.12 “Take and taking”
(a) With respect to wildlife designated a threatened or endangered species, means: (1) pursuing, shooting, hunting, killing, capturing, trapping, harming, snaring, or netting wildlife; (2) an act that creates a risk of injury to wildlife, whether or not the injury occurs, including harassing, wounding, or placing, setting, drawing, or using any net or other device used to take animals; or (3) attempting to engage in or assisting another to engage in an act set forth under subdivision (1) or (2) of this subdivision.
(b) With respect to a wild plant designated a threatened or endangered species, means uprooting, transplanting, gathering seeds or fruit, cutting, injuring, harming, or killing or any attempt to do the same or assisting another who is doing or attempting to do the same.
3.13 “Threatened Species” means a species that has been listed as threatened by the Secretary because the species is a sustainable component of the State’s wildlife or wild plants; it is reasonable to conclude based on available information that its numbers are declining; and unless protected, it will become an endangered species or, a species determined to be a “threatened species” under the federal Endangered Species Act.
4.0 Critical Habitat Designations
4.1 “Critical habitat,” as defined in 10 V.S.A. § 5401(4) and 10 V.S.A. § 5402a, has been designated for the following locations:
(a) Three (3) Common Tern Nesting Islands.
(b) Four (4) Spiny Softshell Nesting Areas.
(c) One (1) Bat Hibernaculum.
5.0 Permits for Taking and Possession
5.1 No person shall take or possess an endangered or threatened species without a permit, unless exempt as provided for in 10 V.S.A. § 5408(d) and as follows:
(a) No enforcement shall be taken, and no permit shall be required for the taking of listed threatened or endangered plants in instances where the plants are legally acquired and exist in a cultivated state or are artificially propagated (produced and grown under controlled conditions or originated from cultivated parental stock); unless the plants are cultivated or artificially propagated as part of a recovery plan or, for mitigation purposes in accordance with a takings permit, a directive of the Secretary, or an enforcement action.
(b) Prior to requiring a permit or initiating enforcement for the taking of any threatened or endangered bee(s), the Secretary of the Agency of Natural Resources shall:
1. notify affected landowners and persons who are engaged in activities that may result in taking the threatened or endangered bees of the presence of threatened or endangered bees and the requirement to avoid taking the bees or to obtain a permit; and
2. notify and consult with affected or interested state agencies including as applicable: the Agency of Commerce and Community Development (ACCD), the Agency of Transportation (AOT), the Vermont Department of Health (VDH), and the Agency of Agriculture, Food, and Markets (AAFM) whenever the presence of bees may impact farming or the application of pesticides.
(c) Upon discovering the presence of a threatened or endangered grassland bird on or in proximity to any farm or land used for farming, the Secretary of the Agency of Natural Resources shall:
1. consult with the Secretary of the AAFM prior to requiring a taking permit or engaging in enforcement activities; and
2. ensure that the regulatory actions taken to protect the species do not cause undue interference with farming.
5.2 No person shall destroy or adversely impact the designated critical habitat of an endangered or threatened species without a permit.
5.3 Pursuant to 10 V.S.A. § 5408(a) the Secretary may, after receiving the advice of the Endangered Species Committee, grant permits for the taking and possession of an endangered or threatened species:
(a) for scientific purposes;
(b) to enhance the propagation or survival of species;
(c) for zoological exhibition;
(d) for educational purposes;
(e) for noncommercial cultural or ceremonial purposes; or
(f) for a special purpose consistent with the purpose of the Federal Endangered Species Act (see16 U.S.C. § 1531(b)).
5.4 Pursuant to 10 V.S.A. § 5408(b), the Secretary may allow the incidental take of a threatened or endangered species or the destruction or adverse impact to critical habitat only if:
(a) the taking is necessary to conduct an otherwise lawful activity;
(b) the taking or the destruction and impact to the critical habitat, is attendant or secondary to, and not the purpose of, the lawful activity;
(c) the impact of the permitted incidental take or impact to critical habitat is minimized; and
(d) the incidental taking or the impact to critical habitat will not impair the conservation or recovery of any endangered species or threatened species.
5.5 An applicant for a Taking and Possession permit shall submit an administratively complete application to the Secretary, specifying for which purpose(s) the permit is required, as listed in 10 V.S.A. § 5408(a) and (b). The permit application shall include:
(a) a description of the activities that could lead to a taking of a listed threatened or endangered species or the destruction of or adverse impact on critical habitat;
(b) the steps that the applicant has or will take to avoid, minimize, and mitigate the impact to the relevant threatened or endangered species or critical habitat;
(c) a plan for ensuring that funding is available to conduct any required monitoring and mitigation, if applicable;
(d) a summary of the alternative actions to the taking or destruction of critical habitat that the applicant considered and the reasons that these alternatives were not selected, if applicable;
(e) the name or names and obligations and responsibilities of the person or persons that will be involved in the proposed taking or destruction of critical habitat;
(f) a description of the possible impacts due to the proposed action, and as applicable a plan for conservation or mitigation;
(g) permit fees and mitigation funding, if applicable; and
(h) any additional information that the Secretary may require.
5.6 Avoidance and Minimization
(a) Applicants for Taking and Possession permits shall have the burden to show that reasonable steps have been taken to avoid and minimize takings. The Applicant must provide information that demonstrates:
(1) The proposed activity cannot practicably be designed to avoid taking or the destruction or adverse impact to critical habitat, and still satisfy the basic project purpose; and
(2) If avoidance of taking of a listed species or the destruction or adverse impact to critical habitat, cannot practicably be achieved, the proposed activity has been planned to minimize adverse impacts on the listed species.
(b) The Secretary may require an applicant to submit additional information that the Secretary considers necessary to make a decision on the issuance or denial of a permit. The Secretary may dismiss the application without prejudice if the requested information is not provided to the Secretary within sixty (60) days of the Secretary's request.
(c) In determining whether the burden has been met, the Secretary shall evaluate the potential effect of any proposed activity on the basis of both its direct and immediate effects, as well as on the basis of any cumulative or on-going effects on the listed species.
(d) The Secretary may develop, and require the implementation of, best management practices (BMPs) to avoid and minimize the taking of threatened and endangered species. The Secretary shall consult with the AAFM, the AOT, VDH, and any other interested state agency prior to finalizing the BMPs.
5.7 Mitigation
The Secretary may require the implementation of mitigation strategies and may collect mitigation funds, in addition to the permit fees, in order to mitigate the impacts of a taking or the destruction of or adverse impact on critical habitat. Provided that the mitigation is commensurate with the taking or adverse impact proposed, mitigation may include:
(a) a requirement to rectify the taking or adverse impact or to reduce the adverse impact over time;
(b) a requirement to manage or restore land within the area of the proposed activity or in an area outside the proposed area as habitat for the threatened or endangered species, including treatment of conserved areas for the purposes of restoration or propagation of listed species;
(c) compensation, including payment into the Threatened and Endangered Species Fund for the uses of that Fund; or
(d) permanent conservation of habitat in which the same species exists, and ongoing monitoring of conserved areas.
5.8 Hearings
(a) The Secretary may conduct a non-adversarial, public hearing in order to evaluate the application. Such a hearing will be held within 60 (sixty) days of the receipt of the administratively complete application.
(b) When a petition has been denied and no public hearing has been held, the Applicant may request in writing to the Secretary that a hearing be held regarding the proposed activity. The Secretary will conduct a hearing within 30 (thirty) days of receipt of the request.
5.9 The Secretary may require, as part of an issued permit, conditions for the protection and conservation of endangered species.
5.10 The Secretary shall inform an applicant of a decision to approve or deny a permit no more than 60 (sixty) days following an application being deemed administratively complete unless the Secretary determines there is just cause.
5.11 The Secretary maintains continuing jurisdiction over activity permitted under this rule and may, at any time, order the permittee to undertake remedial measures to ensure the protection and conservation of listed species.
6.0 Listing
6.1 The following list of plants and animals is adopted as the Vermont Endangered and Threatened Species List pursuant to 10 V.S.A., chapter 123.