Endangered and Threatened Species of Fish and Wildlife Comments to NYS DEC

September 20, 2010

Dan Rosenblatt
625 Broadway
Albany, NY 12233-4750 

Re: Endangered and Threatened Species of Fish and Wildlife

Dear Mr. Rosenblatt:

The Business Council submits these comments for consideration in the Department’s efforts to finalize its draft regulations on endangered and threatened species. It is essential that New York’s policy consider the state’s economic objectives as well as its environmental quality objectives, and avoid approaches that are unnecessarily expensive or burdensome to industry.

The Business Council is the state's largest statewide employer advocate, representing nearly 3,000 private sector employers across New York. Our membership includes construction, and transportation builders, and other developers, many of whose business operations are directly impacted by the state’s endangered species regulations.

Our membership includes some developers that are current permit holders that would be directly impacted by this proposed change in regulation, while others could be impacted by permitting requirements and restrictions imposed on developers through additional costs and delays in development.

The Business Council has a number of concerns with the draft Endangered and Threatened Species Regulation.

Specifically, we recommend that this policy specify more clearly the types of projects that come within the scope of the regulation.

The policy should also have a more defined timeline for approving permits.

Finally, we recommend that Department conduct an independent study that takes into account the time and cost constraints of complying with the permitting mandates of this regulation and the economic impact to communities struggling as a result of slow development and job creation.

  1. All Development Projects Subject to Permitting Process

Section 182.8 of this draft regulation holds that:

“(a) No person shall take or engage in any activity that is likely to result in a take of any species listed as endangered or threatened…except as authorized by an incidental take permit issued by the department... ”

In essence construction projects that may result in an incidental taking of an endangered or threatened species must receive a permit before construction can begin. This gives the Department broad discretion to require permits for any construction it deems a threat to an endangered or threatened species. There is no limitation in application to just commercial interests. This regulation would apply to construction companies as well as homeowners.

There is no minimum size criterion for review of proposed projects, which means that someone building an addition to their home, installing a deck or a swimming pool would be obligated to apply for the permit if their activity could impact a species’ “habitat”. This permitting process will also apply to forest management activities.

These changes could be disastrous for small developers and homeowners who would be required to go through a costly and burdensome permitting process. The application itself will require preparation by professional land planners, biologists and surveyors that could cost thousands of dollars. Small developers and homeowners are not in a position to develop studies and analysis on a particular habitat and how an activity will affect the populations of that habitat. Nor can they affectively provide data and information necessary to complete the required mitigation plan. These groups are not in a position to provide this kind of information without incurring considerable personal costs to hire experts who can.

We believe these standards to be unreasonable. The Department should develop permitting standards based on the size of the activity affecting a particular habitat. Large construction projects that affect a larger area should be the focus of this regulation. Not small projects done by small developers and homeowners that are unlikely to have a significant impact on protected species in a designated habitat.

  1. The Department should codify time periods for approving permits.

The regulation calls for a 30-day period for a response to an initial “Request for Determination”, which DEC can extend another 30-days with a further indefinite extension should “weather, the subject species essential behavior, habitat conditions or other environmental factors prevent the Department from making a determination within 30-days.”  This gives the Department broad authority to delay the approval of any project for any reason as long as it can be stated to be related to an “environmental factor.”

Projects could ultimately be delayed months if not years subject to the Department’s prerogative.  New York cannot afford the kinds of sharp delays that stifle construction costing communities much needed economic development and jobs.

We urge the department to establish a fixed deadline to approve an application of no more than 90-days when the request for determination is extended past the second 30-day extension due to factors such as weather, the subject species essential behavior, habitat conditions or other environmental factors prevent the department from making a determination within 30-days.

  1. The Department Needs to Conduct and Independent Study on Feasibility

The application process for affected parties is not quick and inexpensive. In some cases it could take many months and thousands of dollars to meet the requirements of the permit application set out in this regulation

The cost to hire professional land planners, biologists and surveyors varies greatly with the size of a land area. In some cases we have been told that it could cost 10’s of thousands of dollars to do the required studies. In many cases the studies to receive a permit alone could cost more than the projects themselves.

The Department should seek ways to limit excessive costs for businesses and homeowners. The last thing we need is for developers to cease construction in this state due to the costs of receiving a permit to build.

We request the Department conduct an independent study to assess the impact of permitting requirements on feasibility, costs, and jobs. Any new permitting policy should take into account the costs and benefits of those seeking a permit.

For the reasons discussed herein, we appeal to the Department to adopt a policy that is fair to all seeking to build in this state, and provides a reasonable timeframe for permit approval, and can be implemented without excessive cost.

The Business Council thanks you for the opportunity to submit these comments. We encourage the Department to use the Business Council and its members as a resource for developing sound regulatory policy.

Please feel free to contact me if you would like to discuss these issues further. We look forward to working with you and your staff as the Department finalizes its Endangered and Threatened Species of Fish and Wildlife Regulation.