The regulations are authorized by Environmental Conservation Law (ECL), section 9-1503, which authorizes the Department to promulgate and adopt a list, or lists, of protected native plants which, by reason of their endangered, threatened, rare or exploitably vulnerable status, should not be picked or removed from their habitat.

Endangered species are listed in 6 NYCRR Section 193.3 subdivision (a), threatened species in subdivision (b), rare species in subdivision (c) or exploitably vulnerable species in subdivision (d) of this regulation. All of these plants are protected native plants pursuant to ECL section 9-1503. The common names contained on these lists are included for informational purposes only. The scientific names shall be used for the purpose of determining any violation. Site means a colony or colonies of plants separated from other colonies by at least one-half mile.

Endangered native plants listed are in danger of extirpation throughout all or a significant portion of their ranges within the State and require remedial action to prevent such extinction. Listed plants are those with five or fewer extant sites, or fewer than 1,000 individuals, or restricted to fewer than four U.S.G.S. 7½ minute series maps, or species listed as endangered by the United States Department of Interior in the Code of Federal Regulations. (Please note: the list of 352 plants designated as endangered are omitted for this summary).

The listed threatened native plants are likely to become endangered within the foreseeable future throughout all or a significant portion of their ranges within the State. Listed plants are those with six to fewer than 20 extant sites, or 1,000 to fewer than 3,000 individuals, or restricted to not less than four or more than seven U.S.G.S. 7½ minute series maps, or species listed as threatened by the United States Department of Interior in the Code of Federal Regulations. (Please note: The list of 155 plants designated as threatened are omitted for this summary).

Rare native plants have from 20 to 35 extant sites or 3,000 to 5,000 individuals statewide. (Please note: The list of 86 plants designated as rare are omitted for this summary).

Exploitably vulnerable native plants are likely to become threatened in the near future throughout all of a significant portion of their ranges within the State if causal factors continue unchecked. (Please note: The list of 148 plants designated as exploitably vulnerable are omitted for this summary).

It is a violation for any person, anywhere in the State, to pick, pluck, sever, remove, damage by the application of herbicides or defoliants, or carry away, without the consent of the owner, any protected plant. Each protected plant so picked, plucked, severed, removed, damaged or carried away shall constitute a separate violation.

The proposed revisions to the endangered, threatened, rare or exploitably vulnerable lists are the result of new information compiled by the Natural Heritage Program in its database. The Natural Heritage Program is a partnership between the New York State Department of Environmental Conservation and the Nature Conservancy. Through field inventories, analysis and a comprehensive database, the Natural Heritage Program keeps track of the status of rare plants in New York State. The Exploitably vulnerable list was originally developed through cooperation with The Department of Environmental Conservation, The Nature Conservancy, The Natural Heritage Program, State Garden Clubs, and many universities and colleges. The species on the Exploitably Vulnerable list have remained the same since 1989, other than a few plants that have been moved to another list, nomenclature changes and one species being removed from the list that was determined to be a misidentification and not native to New York State. When the regulation was proposed, the State Botanist's check list was used as a reference, however it had not been updated since 1997. It was not known that the Flora Atlas used by the Natural Heritage Program for nomenclature of scientific names had the updated scientific names for the Protected Plants List including the Exploitably Vulnerable List. This reference will be used for all future updates to the Protected Native Plants List.

The proposed rank changes are based on information contained in the Natural Heritage Program database and reflect the numbers of plants or the numbers of sites or locations of listed species. When new populations of species are found or when existing populations grow in number, plants may meet the criteria of a lower rank, or may be removed from the lists. Plants may increase in number due to the discovery of new sites or populations, environmental factors such as climate change, decrease of herbivores or better protection of habitat. Plants that were previously thought to have been extirpated in the State may have been re-discovered and then need to be added to one of the lists, based on their numbers. Two examples of this are plants that were re-discovered this past summer. Small whorled pagonia (Isotria medeoloides) had not been seen in the State for decades, even after years of searching the most likely sites. It is Federally listed as threatened. It has now been found again in New York. It will be added to the endangered list. Northeastern bulrush (Scirpus ancistrochaetus) is a Federally endangered plant that was thought to have been extirpated with little chance of ever finding it again in New York State. It was also found during a field survey this summer. It will be added to the endangered list. When existing populations decrease in numbers, or when entire sites or populations disappear, plants may meet the criteria of a higher rank. Plants may decrease in numbers due to environmental factors such as climate change, increase in herbivores, or destruction of habitats.

The proposed changes include 33 plants being moved from the endangered to the threatened list, two plants being moved from the endangered to the rare list, 30 plants from the endangered list being removed from all lists and 28 unlisted plants being added to the endangered list. Twenty plants are being moved from the threatened to the endangered list, 23 plants are being moved from the threatened to the rare list, seven threatened plants are being removed from all lists and nine unlisted plants are being added to the threatened list. Six plants are being moved from the rare to the threatened list, and 48 unlisted plants are being added to the rare list. One exploitably vulnerable plant is being moved to the threatened list and one is being removed from the list. There wasn't significant movement from one list to another. Most of the unlisted plants were added to the lists because of extensive field surveys and technological advances such as Geographic Information Systems and aerial mapping which allow better prediction of potential sites based on specific habitat requirements of plant species compared to the past when these tools were not available.

Many plants were removed from the lists due to an increase in their numbers, but many other plants were added to the lists because their populations have decreased. Plants that were thought to have been extirpated from the State have been found and are being added to the lists.

New York State is unique since it is a crossroads of plant distribution with a great variety of ecosystems, from the Long Island beaches to the Adirondack's high peaks. The State is on the boundary of many plant's ranges; the southern edge of many northern and even Arctic species; the northern limit for many southern species; and the eastern limit for many Midwestern prairie species. Because of this distribution, New York State has a long list of plants that, while common in many other locations, are rare in New York.

The new Protected Native Plants list has 162 scientific name changes. These changes were made to reflect new taxonomical information or the reclassification of plant families and genuses, or to correct inaccurately listed plants. The International Code of Botanical Nomenclature is the internationally recognized authority for the naming of plants. The New York State Botanist at the State Museum also approves the names of plants in New York State, based on the international classification. The Natural Heritage Program uses the New York Flora Atlas, housed at the University of South Florida as the authority for scientific nomenclature.

1. Statutory authority:

The regulations are authorized by Environmental Conservation Law (ECL) section 9-1503, allowing the Department of Environmental Conservation (Department) to promulgate and adopt a list, or lists, of protected native plants which, by reason of their endangered, threatened, rare, or exploitably vulnerable status, should not be picked or removed from their natural habitat. The Department has adopted lists of protected native plants under this section of the law. This rule updates the lists to reflect changes in plant populations since the lists were last updated in 2000. These regulations are also authorized by ECL section 9-0105(1), which states that the Department has the power, duty, and authority to "exercise care, custody, and control" of certain State lands, and to "make necessary rules and regulations to secure proper enforcement" of the provisions of section 9-0105(3).

2. Legislative objectives:

The legislature recognized that historically, plants are the property of the landowner, unlike animals, which are the property of the State. Consequently, the legislature's objective in the statute was to give the landowner additional rights, over and above trespass laws, to approve or deny others the right to take plants from their property. The legislature further recognized that certain plants are threatened with extinction by unauthorized removal from landowner's lands. In giving the Department authority to give plants additional protection, the legislature recognized various classes of plants based on their rareness and exploitability. The legislature recognized that these classes of plants may require special protection.

3. Needs and benefits:

New York State has a Protected Native Plants list that lists endangered, threatened, rare or exploitably vulnerable plants. Plants of many species have become rare and some extirpated in New York due to exploitation and loss of habitat. The Protected Native Plants list was developed in 1989 to give landowners additional rights to prevent or prosecute unlawful taking of listed plants and to help in the conservation and preservation of plants. However, the status and knowledge of the distribution of many plant species has changed dramatically since the list was last revised eleven years ago. Many plants need additional protection over and above trespass laws of the State. Furthermore, as important as increasing landowner's rights to protect plants, official designation needs to be given to truly rare plants. An official list of endangered, threatened, rare or exploitably vulnerable plants under this section is beneficial to landowners and for plant conservation and preservation. The ability to enforce the regulation reduces the occurrence of unlawful taking of plants and, since the collection of plants contributes to their extirpation, the enforcement of the regulation leads to plant conservation and preservation.

The updated lists will be based upon the current existing definitions of endangered, threatened, rare or exploitably vulnerable plants, as defined in Section 193.3. The proposed revisions are the result of new information compiled by the Natural Heritage Program in its database.

The Natural Heritage Program is a partnership between the New York State Department of Environmental Conservation and the Nature Conservancy. Through field inventories, analysis and a comprehensive database, the Natural Heritage Program keeps track of the status of rare plants in New York State. The Exploitably Vulnerable List was originally developed through cooperation with The Department of Environmental Conservation, The Nature Conservancy, The Natural Heritage Program, State Garden Clubs, and many universities and colleges. The species on the Exploitably Vulnerable list have remained the same since 1989, other than a few plants that have been moved to another list, nomenclature changes and one species being removed from the list that was determined to be a misidentification and not native to New York State. When the regulations were proposed, the State Botanist's Check list was used as a reference, however it had not been updated since 1997. It was not known that the Flora Atlas used by the Natural Heritage Program for nomenclature of scientific names had the updated scientific names for the Protected Native Plants List, including the Exploitably Vulnerable List. This reference will be used for all future updates to the Protected Native Plants List.

The proposed rank changes are based on information contained in the Natural Heritage Program database and reflect the numbers of plants or the numbers of sites or locations of listed species. When new populations of species are found or when existing populations grow in numbers, plants may meet the criteria of a lower rank, or may be removed from the lists. Plants may increase in numbers due to the discovery of new sites or populations, environmental factors such as climate change, decrease of herbivores or better protection of habitat. Plants that were previously thought to have been extirpated in the State may have been re-discovered and need to be added to one of the lists, based on their numbers. Two examples of this are plants that were re-discovered this past summer. Small whorled pagonia (Isotria medeoloides) had not been seen in the State for decades, even after years of searching the most likely sites. It is Federally listed as threatened. It has now been found again in New York. It will be added to the endangered list. Northeastern bulrush (Scirpus ancistrochaetus) is a Federally endangered plant that was thought to have been extirpated with little chance of ever finding it again in New York State. It was also found during a field survey this summer. It will be added to the endangered list.

When existing populations decrease in numbers, or when entire sites or populations disappear, plants may meet the criteria of a higher rank. Plants may decrease in numbers due to environmental factors such as climate change, increase in herbivores, or destruction of habitats. The State lists of endangered, threatened, rare or exploitably vulnerable plants have similar State rankings under the Natural Heritage Program.

The proposed changes include 33 plants being moved from the endangered to the threatened list, two plants being moved from the endangered to the rare list, 30 plants from the endangered list being removed and not being added to any other list and 28 unlisted plants being added to the endangered list.

Twenty plants are being moved from the threatened to the endangered list, 23 plants are being moved from the threatened to the rare list, seven threatened plants are being removed from all lists and nine unlisted plants are being added to the threatened list. Six plants are being moved from the rare to the threatened list, and 48 unlisted plants are now on the rare list that were previously unlisted. One exploitably vulnerable plant is being moved to the threatened list. Another is being removed from the list since the species was originally misidentified and it is not native to New York State. There wasn't significant movement from one list to another. Most of the unlisted plants were added to the lists because of extensive field surveys utilizing technological advances such as Geographic Information Systems and aerial mapping which allow better prediction of potential sites based on specific habitat requirements of plant species compared to the past when these tools were not available.

The new Protected Native Plants list has 162 scientific name changes. These changes were made to reflect new taxonomical information or the reclassification of plant families and genuses or to correct inaccurately listed plants. The International Code of Botanical Nomenclature is the internationally recognized authority for the naming of plants. The New York State Botanist at the State Museum also approves the names of plants in New York State, based on the international classification. The Natural Heritage Program uses the New York Flora Atlas, housed at the University of South Florida as the authority for scientific nomenclature.

A letter informing interested parties of the Department's intent to revise the current list of protected native plants was sent out to provide an opportunity for individuals to comment about the proposal or to request information regarding the rulemaking process. This letter went out in March of 2011 to the following groups/institutions and organizations: NYS DOT-Eastern Zone, Adirondack Mountain Club, TNC-Eastern NY Chapter, Bard College Field Station, individuals at the Herbarium at the Brooklyn Botanic Garden, Van Cortlandt and Pelham Bay Parks, NYS-Office of Parks, Recreation and Historic Preservation, Institute of Ecosystem Studies, Millbrook, NY, Department of Biology at Queens College ( CUNY), Biology Department at SUNY ESF, Herbarium at NY Botanical Garden, Cornell University, Fresh Water Institute at Rensselaer Polytechnic Institute, Mohonk Preserve, Department of Biology at St. Johns University, NYC Parks Department Natural Resources Group, Bagdon Environmental Associates in Delmar, NY, NY, Buffalo Museum of Science, Finger Lakes Community College, Terrestrial Environmental Specialists, NYS Museum, Rice Creek Field Station at SUNY Oswego, Olive Natural Heritage Society, Biological Sciences at SUNY Albany, LA Group, Matthew D. Rudikoff Associates in Beacon, NY, Energy Environmental Analysts in Garden City, NY, Ecology and Environment in Lancaster, NY, APA, SUNY Oneonta Faculty and the Department of Biological Sciences at SUNY Plattsburgh. There were no responses received as a result of this outreach, except for one question that was procedural in nature.

4. Costs:

This rulemaking will impose no costs on the regulated public. It will impose no costs on the Department, since existing staff and public information and education programs will be used to publicize and enforce the regulation. There will be no cost to local government.

5. Local government mandates:

The regulations will impose no program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.

6. Paperwork:

The regulations will not impose any reporting requirements or other paperwork on any private or public entity.

7. Duplication:

Other rules and legal requirements of the State and Federal governments would not duplicate, overlap or conflict with the regulations.

8. Alternatives:

The no action alternative is not feasible since the existing regulation does not reflect the current population levels of numerous plants in New York State. Removal of plants that are not currently listed are not subject to penalties under the ECL. In the eleven years since the regulations were updated there have been numerous changes in the number of plants on the lists. Many plants currently identified as endangered, threatened, rare, or exploitably vulnerable need to be moved from one list to another or removed from the lists to properly show their current status.

9. Federal standards:

The proposed regulations do not exceed any minimum standards of the Federal government. Federally listed endangered and threatened plants are listed by definition as endangered or threatened under this regulation.

10. Compliance schedule:

The regulations will become effective on the date of publication of the rulemaking in the New York State Register. No time is needed for regulated persons to achieve compliance with the regulations. Once the regulations are adopted they are effective immediately. The Department will seek to educate the public about the regulations through information posted on the Departments' web site. Regional office staff will be notified by e-mail.

No changes were made to previously published Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

We received two comments from one person. They are as follows:

1. Comment:

It is a good idea to update the list with the new nomenclature, although sometimes the changes do not make sense to me, especially the genera changes. The problem is, what is the source of the nomenclature changes used? For the species listed as endangered, threatened, or rare, I assume the source is the NY Natural Heritage Program list. However, for those listed under exploitably vulnerable the "new" nomenclature (whatever the source is) is not used, especially for the ferns and clubmosses. If these name changes are important, then we should change them consistently and we should identify a source.

Response to Comment: It was brought to my attention that the scientific names of plants on the exploitably vulnerable list were not updated. This was due to confusion about the authority of naming the species. In the past, the New York State Museum has been the authority for the naming of species in New York State. Mitchell and Tucker's "Revised Checklist of New York State Plants", State Museum Bulletin 490, was used for scientific names of listed species. Due to the infrequency of updating this Publication; the last update was in 1997; the Natural Heritage Program has worked with the New York Flora Association, government agencies, herbaria, universities and conservation organizations in developing the New York Flora Atlas, housed in the Plant Atlas at the University of South Florida. This partnership allows a continual process to update the status and nomenclature of plant species. The scientific names on the exploitably vulnerable list have been corrected based upon the New York Flora Atlas.

2. Comment:

I also want to take this opportunity to reiterate my long standing concern with the definition of exploitably vulnerable. I know this definition is in the law not the regulations, but it is the source of great confusion. My concerns are as indicated in my attached NY Flora Association Newsletter article from 2006. As indicated in this article, I do not have a problem with the species listed as exploitably vulnerable, it is the definition that is of great concern to me. This definition is extremely misleading and should be changed.

Response to Comment: The term, exploitably vulnerable is defined in Environmental Conservation Law section 9-1503 and cannot be changed without a legislative amendment, therefore it was not addressed in this regulation.