(a) Activity means any land use, construction or action.

(b) Adverse modification of habitat means any alteration of the occupied habitat of any species listed as endangered or threatened in this Part that, as determined by the department, is likely to negatively affect one or more essential behaviors of such species.

(c) Commissioner means the Commissioner of the Department of Environmental Conservation.

(d) Department means the Department of Environmental Conservation.

(e) Endangered species are species that:

(f) Essential behavior means any of the behaviors exhibited by a species listed as endangered or threatened in this Part that are a part of its normal or traditional life cycle and that are essential to its survival and perpetuation. Essential behavior includes behaviors associated with breeding, hibernation, reproduction, feeding, sheltering, migration and overwintering.

(g) Experimental population means a group of individuals of a threatened or endangered species listed in this Part that has been designated by the department in accordance with section 182.17 of this Part for introduction into an experimental population area to aid in the recovery of the species within New York.

(h) Experimental population area means a discrete geographical area composed of sufficient, suitable habitat capable of sustaining a population of a specific listed species that is established in accordance with section 182.17 of this Part for the purposes of establishing an experimental population.

(i) Extinct means species no longer living or existing.

(j) Extirpated or Extirpation means not extinct, but no longer occurring in a wild state within New York, or no longer exhibiting patterns of use traditional for that species in New York (e.g., historical breeders no longer breeding here).

(k) Incidental take means any taking of a species listed as endangered or threatened in section 182.5 of this Part and otherwise prohibited by section 11-0535 of the Environmental Conservation Law that is incidental to, and not the intended purpose of, an otherwise lawful activity.

(l) Incidental Take Permit means a document issued by the department pursuant to section 11-0535 of the Environmental Conservation Law and this Part allowing the incidental take of any species listed as endangered or threatened in this Part.

(m) Lesser acts means, for the purposes of this Part, harassing, harming, maiming, wounding or collecting any species listed as endangered or threatened in section 182.5 of this Part, any act which is likely to cause the death of or injury to any individual member(s) of a species listed as endangered or threatened in section 182.5 of this Part, any adverse modification of habitat of any species listed as endangered or threatened in section 182.5 of this Part, and any interference with or impairment of an essential behavior of a species listed as endangered or threatened in section 182.5 of this Part.

(n) Native means any species that spends some portion of its life cycle within New York State, has occurred here on a regular basis for many years, and was not intentionally or accidentally released into New York. A species is also considered native if it formerly met the conditions of this definition.

(o) 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. To be classified as a net conservation benefit, the enhancement or contribution must benefit the affected species listed as endangered or threatened in this Part or its habitat to a greater degree than if the applicant's proposed activity were not undertaken.

(p) Occupied habitat means a geographic area in New York within which a species listed as endangered or threatened in this Part has been determined by the department to exhibit one or more essential behaviors. Once identified as occupied habitat, the department will continue to consider that area as occupied habitat until the area is no longer suitable habitat for that species or monitoring has indicated that reoccupation by that species is unlikely.

(q) Person means any Federal or State department, agency, board, public benefit corporation, public authority or commission, a county, municipal corporation, or any other political subdivision of the State, and any individual, corporation, partnership, firm or any other legal entity whatsoever.

(r) Population means members of the same species occupying a defined geographic area of limited extent.

(s) Regional permit administrator means an employee of the department located in one of the nine regional offices of the department and designated to act on the commissioner's behalf in carrying out the provisions of 6 NYCRR Part 621 (Uniform Procedures).

(t) Self-sustaining means a species or population whose abundance and distribution throughout the State is maintained by natural recruitment at a level sufficient to allow for its continued existence such that there is not a need for ongoing, intensive management or intervention.

(u) Species means any subspecies, distinct group or any distinct population segment of any such group of fish or wildlife which interbreeds when mature. The term species refers not only to independent or adult individuals, but also to any life form, stage, or part of the species, including but not limited to eggs, larvae or pupae. The term species does not include fish or wildlife produced as a result of artificial hybridization.

(v) Species of special concern are native species of fish and wildlife found by the department to be at risk of becoming threatened in New York based on the criteria for listing in section 182.4(a) of this Part and that are listed species of special concern in section 182.5(c) of this Part. Species of special concern do not qualify as either endangered or threatened, as defined in subdivisions (e) and (y) of this section, but have been determined by the department to require some measure of protection to ensure that the species does not become threatened. Species of special concern are listed in section 182.5(c) of this Part and are protected wildlife pursuant to Environmental Conservation Law section 11-0103(5)(c).

(w) Subject population means any individual member(s) of any species listed as endangered or threatened in this Part utilizing occupied habitat within or adjacent to the geographic area of an activity subject to this Part.

(x) Subspecies means a taxonomic group that is a division of a species and usually, but not always, arises as a consequence of geographical isolation within a species. The term subspecies does not include fish or wildlife produced as a result of artificial hybridization.

(y) Take or taking means the pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting of any species listed as endangered or threatened in this Part, and all lesser acts such as disturbing, harrying or worrying.

(z) Threatened species are any species that: