(a) Purpose

1. The department may utilize funds in the endangered and threatened species mitigation bank fund for the purposes of facilitating the achievement of a net conservation benefit to an endangered or threatened species which may be taken by the construction or operation of a major renewable energy facility that requires approval by the department, by the department of public service, by the department of state’s office of renewable energy siting, or by any state commission, agency, board or regulatory body granted oversite over major renewable energy projects.

(b) Definitions

1. Endangered and threatened species mitigation bank fund is an account consisting of contributions, in an amount determined by the department or other entity authorized by law, deposited by permittees for whom such contributions are deemed necessary to achieve a net conservation benefit to state listed species likely to be taken by the permittee’s major renewable energy project.

2. Major renewable energy facility is an alternative energy system with a nameplate capacity of 25 megawatts or greater or any alternative facility granted a siting permit by the department of state office of renewable energy siting.

(c) Use of endangered and threatened species mitigation bank fund

1. The department may, at the commissioner’s discretion, enter into contracts pursuant to State Finance procurement laws to implement, in part or in whole, the actions necessary to facilitate the achievement of a net conservation benefit to endangered or threatened species likely to be taken by a major renewable energy facility.

2. The department may disburse funds from the mitigation bank fund to implement conservation actions identified in approved conservation plans, recovery plans, endangered or threatened species mitigation plans and net conservation benefit plans required to facilitate the achievement of a net conservation benefit to endangered or threatened species likely to be taken by a major renewable energy facility.

3. The department may disburse funds from the endangered species mitigation bank fund to the operators of a department-approved mitigation bank to implement conservation actions for state listed species.

4. Appropriate contributions to the department’s endangered species mitigation bank fund may satisfy all or part of the net conservation benefit requirement as specified in an approved endangered or threatened species mitigation plan or net conservation benefit plan submitted as part of an application for a major renewable energy project consistent with this Part.

(d) Determination of endangered and threatened species mitigate bank fund payments

1. The methodology for determining payments necessary to achieve a net conservation benefit will be determined by the department based on the extent of impacts and anticipated costs needed to provide a net conservation benefit to the impacted species. The process will be based on the following:

i. The take or taking to be quantified may be based on any or all the following: loss of occupied habitat, loss of productivity, loss of individual animals, the anticipated duration of such taking

ii. Costs shall be related to the take or taking to the extent practicable, with:

1. Habitat impacts addressed by habitat protection and enhancement, creation or restoration of suitable habitat

2. Loss of productivity addressed by mechanisms to boost productivity such as predator control, reduction in human disturbance or creation of buffer habitat

3. Loss of individual animals addressed by mechanisms that increase productivity or survival through reduction of existing threats such as predation, human disturbance or collisions with vehicles or structures or research identified by the department that will lead to such an outcome

2. Cost calculations shall include all costs associated with successful implementation of mechanisms needed to generate a net conservation benefit including:

i. Cost to acquire necessary real property (rental, easement or fee title cost);

ii. Labor required to implement the mitigation actions;

iii. Equipment, supplies and materials necessary to implement the mitigation actions;

iv. Administrative overhead necessary to accomplish the above, and

v. Reasonably foreseeable increases in any of the above anticipated over the time period necessary to generate a net conservation benefit

3. Cost determinations are anticipated to increase at a rate commensurate with the rate of inflation.

Part 182.19 Mitigation Banks

(a) Purpose

1. The department may approve mitigation banks to aid in the management of state threatened and endangered species likely to taken by major renewable energy projects.

(b) Definitions

1. Eligible entities are federal, state and local governments and not-for-profit organizations.

2. Mitigation bank is an area of real property within New York State that is administered in accordance with best management practices for a state threatened or endangered species and is operating under a department approved mitigation instrument in order to achieve a net conservation benefit for threatened or endangered species likely to be taken by major renewable energy projects.

3. Mitigation bank instrument is a document that describes the business model of the mitigation bank that sets out how the mitigation bank will be managed, including all aspects outlined in section (f) of this subpart.

4. Suitable habitat is the physical and landcover characteristics required by a species to successfully engage in an essential behavior

(c) Creation of a mitigation bank

1. Eligible entities may establish a mitigation bank by applying to the department.

2. Applications to establish a mitigation bank must include a complete mitigation instrument as per section (f) of this subpart.

3. The department will post completed applications on its website for public review and comment for 30 days.

4. After an assessment of public comment, the department will either deny the application if the mitigation instrument is not likely to be successful in improving the habitat, productivity or survival of state threatened and endangered species to an appropriate degree or approve the application.

(d) Ownership, Operation, and management of mitigation banks

1. Mitigation banks may be owned or operated by the department, other federal, state or local government entities, not-for-profit organizations, or any other legal entity.

2. Management of mitigation banks will follow the management practices outlined in the mitigation bank instrument for providing the habitat needs of identified and listed state threatened and endangered species.

3. A mitigation bank owned by the department may be managed under contractual agreements with third parties.

4. The acres of habitat produced or maintained may only be counted once per year for use as mitigation.

5. The protection of an individual of a listed species may only be counted once for use as mitigation.

6. The department shall be allowed access to the mitigation banks during the time of the year the target species and/or habitat is expected to be present.

(e) The department may disburse funds from the endangered species and threatened species mitigation bank fund to the operators of a department-approved mitigation bank to implement conservation actions for state listed species.

(f) The mitigation bank instrument shall include the following:

1. List of the target species for which the mitigation bank is intended.

2. Maps of the real property within the State of New York under the management or control of the applicant.

3. Proof of management control of the real property including copies of deeds, easements or contractual relationships with landowners that include full descriptions of the metes and bounds of the locations to be managed.

4. Description of the existing habitat and use of the property by the target species including:

i. A baseline assessment of current conditions on the real properties including:

1. Acres of existing suitable habitat

2. Existing use of property by target species

5. Description of the management goals for habitat and use of the property by target species and specify the units to be used in evaluation of the benefit of the bank such as:

i. Target acres of suitable habitat

ii. Target use of the property by target species (e.g. number of animals foraging or roosting per unit time)

iii. Target number of breeding pairs

iv. Target number of wintering/roosting animals

6. Description of the proposed management plan for the real property to maintain the habitat and target species on the real properties covered by the mitigation bank instrument.

i. Management plans must, to the maximum extent practicable, be consistent with department guidance published in species conservation plans, habitat management plans, or other department approved guidance documents relevant to the target species of the mitigation bank.

7. Description of the monitoring plan for the target species and habitat(s).

8. Start and end dates for the mitigation bank.

9. The department must be granted an easement that allows for the appropriate maintenance, management and monitoring for the target species of the mitigation bank.

10. Mitigation banks must be established within the known range and habitat of the target species unless the operator has obtained an experimental population designation for the target species and the geographic area encompassing the proposed mitigation bank.

11. The methodology for determining the costs for the production of additional individuals of the target species, acres or acre-years of habitat produced by the bank must be provided.

i. Costs should be tied to a publicly accessible economic indicator to allow for changes in operating costs over time.

ii. Costs may include all aspects of generating additional acres of habitat or individuals of listed species, including but not limited to:

1. Cost of real property interest;

2. Labor for oversight and management of the mitigation bank; and

3. Equipment, supplies and materials necessary for management of the mitigation bank.

4. Administrative overhead necessary to accomplish the above.

12. A methodology for tracking the use of individual species and/or habitat produced for mitigation projects.

i. Mitigation bank managers must be able to demonstrate which parcels of real property are under management as mitigation for particular projects.

13. The operator of the mitigation bank must enter into a binding agreement with the department ensuring that the mitigation bank will be maintained for the duration necessary to meet the net conservation benefit standard for all funds received from the endangered species mitigation bank fund.

14. An individual mitigation bank may be established for multiple target species with similar habitat requirements, where each individual animal may be counted separately, but acres cannot be double counted.

(g) Use of mitigation banks

1. The cost methodology established in the approved mitigation bank instrument may be used to determine the appropriate contribution from eligible applicants to offset all or a portion of the project’s likely take or taking of an endangered or threatened species. The department, in consultation with the project applicant, will determine the appropriate units of take that need to be mitigated (e.g. acre years of habitat, number of individuals). This will be based on the best available information and the department may require the applicant to undertake surveys or other research needed to estimate the number of individuals of the species the project is likely to take.

2. The department will assess the anticipated level of take of listed species prior to determination of which mitigation bank may be used, and how many mitigation units in a mitigation bank will be required to achieve a Net Conservation Benefit.

3. The use of an approved mitigation bank must be detailed in the endangered or threatened species mitigation plan as per 182.11(d)(1) or within a net conservation benefit plan as required for major renewable energy projects.

4. The implementation agreement must include an affirmative signed statement from the manager of the mitigation bank asserting that, upon payment of the agreed upon mitigation cost, the mitigation bank has the resources needed to produce the habitat or individuals specified in the application within the time specified.

5. An applicant utilizing a mitigation bank to meet permit requirement must pay the appropriate fee based on the units of impact and the costs approved in the mitigation banking instrument utilized by the mitigation bank. The fee may either be paid directly from the applicant to the appropriate mitigation bank or to the department’s Endangered and Threatened Species Mitigation Bank Fund if eligible.

6. If mitigation banks receive payment directly from the applicant, the mitigation bank operator must notify the department within 2 business days after receipt of payment.

(h) Applicability of mitigation banks

1. Approved mitigation banks established for appropriate species and/or habitat may be utilized by major renewable energy projects to offset the likely take or taking of a state listed species or its habitat and to provide a net conservation benefit to such species.

2. At the department’s discretion, all projects other than alternative energy projects may utilize mitigation banks to satisfy permit requirements under this Part.

3. Use of mitigation banks does not alleviate the applicant’s requirement to avoid and minimize on-site impacts to listed species to the extent practicable.

1. Statutory authority:

Section 3-0301 of the Environmental Conservation Law (ECL) directs the Department of Environmental Conservation (DEC or department) to provide for the propagation, protection, and management wildlife.

Section 11-0535 of the ECL directs DEC to protect endangered, threatened and special concern animals and prohibits the public from taking these animals without a permit from the department.

Section 94-c of Article 6 of the Executive Law enables the Office of Renewable Energy Siting (ORES) to require payments to the endangered and threatened species mitigation bank fund when offsite mitigation is required to provide a net conservation benefit to species adversely impacted by major renewable energy projects issued siting permits by the ORES office.

Section 99-hh of the State Finance Law creates the endangered and threatened species mitigation bank fund and directs the Department to utilize the fund to facilitate a net conservation benefit to endangered and threatened species impacted by major renewable energy facilities.

Section 11-0535c of the ECL directs DEC to manage the endangered and threatened species mitigation fund and promulgate any regulations necessary to do so.

2. Legislative objectives:

The legislative objectives behind the statutory provisions listed above are to authorize the department to establish, by regulation, the rules deemed necessary to implement the endangered and threatened species mitigation bank fund to provide a net conservation benefit as described in endangered and threatened species mitigation plans approved by the department. In addition, contributions may be made by applicants for siting permits issued by the Office of Renewable Energy Siting and these funds in turn may be used to facilitate a net conservation benefit to endangered and threatened species potentially impacted by the permitted major renewable energy facility through offsite mitigation.

3. Needs and benefits:

This proposed regulatory amendment to the Endangered Species regulations would establish how the endangered and threatened species mitigation bank fund (Fund) would operate and how the department would approve mitigation banks. The need for this Fund was made clear in the laws enacted to create it. The Fund is an alternative mechanism for large scale renewable energy projects to meet required mitigation for impacts to state listed animal species. Payments into this fund can potentially replace the need for project proponents to develop a unique strategy to mitigate adverse impacts while reducing the time necessary to develop site-specific mitigation packages. This can result in faster approval of project applications and potentially reduce the overall cost to the applicant. This can translate into reduced costs for the energy produced, and consequently lower electricity rates from the completed project. In addition, provided the payments to the fund are commensurate with the extent of adverse impacts and the costs necessary to provide a conservation benefit to the affected species, administration of the fund may result in more effective and consistent implementation of mitigation strategies. The approval of mitigation banks would also provide the regulated community with additional options for meeting mitigation requirements.

4. Costs:

All costs associated with this program are only necessary when a project will have an unavoidable take of an endangered or threatened animal species (hereafter referred to as listed species). The endangered and threatened species mitigation bank fund (Fund) is an optional method for projects permitted by ORES to use payments to the Fund to meet mitigation obligations for the take of listed species. The costs described below apply to those entities that choose to utilize this method to accomplish required mitigation needs. Under regulations already in place, project sponsors can develop and implement their own mitigation strategies that have been approved and determined by the department to provide a net conservation benefit to offset their take of listed species. This will not be altered by this rule making. Because the Fund is administered by the Department, mitigation projects implemented through this method will be subject to the procurement rules for State Agencies. Therefore, the overhead associated with mitigation projects administered through the Fund is likely to be higher than what many companies would charge for similar services. The process for the Department to approve mitigation banks may help provide options to applicants that may be cheaper than the costs required to utilize the Fund. However, for those entities that opt to use the Fund to meet their mitigation needs, they are saving the time and costs necessary to develop and implement their own mitigation strategy.

The estimated payments to the Fund are based on the cost to implement actions necessary to provide a net conservation benefit to the species adversely affected (i.e., taken) by the applicant. The law (Executive Law Article 6, 94-c; Environmental Conservation Law 11-0535c) provides that mitigation actions should achieve a net conservation benefit through the protection and enhancement of habitat important for the essential behaviors of species taken by a project. Costs associated with establishing and administering the Fund include the following components, where applicable: Land (e.g., rental, fee title acquisition of location where mitigation will occur), management costs (e.g., development of site management plans, fees necessary to acquire labor, rent or purchase supplies, materials and equipment, monitoring necessary to demonstrate success of mitigation efforts), and overhead costs required by the entity administering the management activities.

Some mitigation actions, however, are not based on creation, protection and enhancement of habitat. The goal of these other actions is to reduce known risks to species. Examples include the successful implementation of specific actions such as the retrofitting of electric poles to reduce the threat of electrocution to eagles, the gating of hibernacula to prevent disturbance to listed bats, or research that identifies important new habitats occupied by the listed species that can be protected under regulation. For these actions, the cost includes the following components: Labor to implement the action, travel costs, supplies, materials and equipment needed to complete the action and overhead costs required by the entity administering the management activities. The table below provides examples of estimates for the cost for several types of mitigation and are based on the funding necessary to result in a net conservation benefit to the affected species, and therefore do not necessarily represent a direct replacement of habitat or animals taken.

Grassland Birds:

Listed grassland birds (Short-eared owl, Northern harrier, Sedge wren, Upland sandpiper, Henslow’s sparrow) generally breed and nest in large, contiguous grassland fields greater than 25 acres in area, while foraging within similar habitat within a half mile radius of the nesting location. Winter roosts of Short-eared owl and Norther harrier are generally associated with similar habitats, and New York telemetry data has confirmed that, on average, individual animals forage within a half mile of their roost location. Both wintering and breeding grassland birds generally return and utilize the same general location between years, but due to the dynamic nature of the early successional habitats they prefer, they rarely nest or roost in the exact same location in successive seasons. They generally move their nesting, foraging and roosting activity to the locations most suitable within a given season. Therefore, for grassland listed birds, occupied habitat is defined as the field within which an essential behavior has been documented and all open fields that are greater than 25 acres in size that occur within one half mile of that site. For the purposes of determining adverse impacts to these species, open field habitats that are larger than 25 acres of contiguous grassland and within a ½ mile of a nest or roost of a listed grassland bird are evaluated for impacts. If expected impacts of a proposed project cannot be minimized such that there is no anticipated loss of a single nest, winter roost, and no more than 25 acres of suitable, occupied habitat, would be lost, then impacts above this threshold must be mitigated by the project sponsor such that, on the whole, the project is able to provide a net conservation benefit to the taken species. In addition, certain activities may directly harm individual listed animals. Direct loss of animals or active nests is frequently avoidable through timing of project activities. For grassland birds, clearing of occupied habitat should occur outside of the breeding season or wintering season when the animals are not present within the habitat. If these steps cannot be taken, additional minimization and mitigation actions that result in a net conservation benefit to the affected species may be required in addition to mitigation to replace taken occupied habitat.

The Department will measure the extent of the impact to grassland birds in terms of acreage of occupied habitat impacted. For changes in land use, this calculation is generally equal to the acreage of occupied habitat removed by the project with the following caveats. The first caveat is in relation to the loss of viability for grassland habitats if they are reduced below 25 acres in size. If a project is impacting an occupied field that is greater than 25 acres in size, the entire field will be considered taken for the purposes of calculating take unless a minimum of 25 acres of suitable habitat will remain. For example, a project that takes 35 acres within a 50-acre occupied grassland would be considered to have taken all 50 acres, while a project that takes 20 acres within a 50-acre field of occupied grassland habitat would only be considered to have taken 20 acres as more than 25 acres of suitable grassland habitat remains after the project is constructed. The second caveat is for projects that have elements that are known to cause impacts beyond the footprint of clearing and ground disturbance. In the case of tall structures such as telecommunications and electric transmission towers and wind turbines, there are documented changes to the bird communities as far as 250m from those structures. The Department will use the most relevant science to assess the extent of these indirect effects, which may increase the acreage of calculated impact beyond the actual footprint of the land use change. The direct loss of grassland birds will be calculated based on the number of birds expected to be taken, with the take of nests being translated into an estimated number of individual animals based on the best available information on the average productivity of the species.

Mitigation to achieve a net conservation benefit for the take of occupied breeding grassland bird habitat requires the creation, management, or improvement of substantially more quality breeding habitat than the occupied habitat taken. The habitat used as mitigation must also be protected from adverse impacts for a length of time at least as long as the projected suitability of the habitat taken. The need for more habitat than that taken is necessary to account for the uncertainty inherent in habitat restoration or creation and the additional uncertainty that the target species will find and utilize the habitat. For example, through years of grassland bird surveys across many fields of varying sizes and management regimes, the Department has documented listed grassland birds breeding in fewer than 20% of those fields, with the rarest species (Henslow’s sparrow and Upland sandpiper) found in fewer than one in ten fields greater than 25 acres in size. For this reason, areas utilized for mitigation purposes must include at least 25 acres of contiguous grassland habitat. There are several factors that can reduce the uncertainty that mitigation for the target species will provide a net conservation benefit. In decreasing order of importance:

a. The area contains known occupied habitat for a species taken by the project.

b. The parcel is ≥ 100 contiguous acres in size and of a suitable shape (not linear, and closer to a square or circle in shape).

c. The area is adjacent to existing occupied grassland habitat for a target species that is at least 25 acres in size and is already under conservation easement or otherwise protected.

d. The area is within a NYSDEC-designated Wintering Raptor Concentration Area (if affected species is a wintering raptor), a NYSDEC Grassland Focus Area (if affected species is a breeding grassland bird in New York) or an Audubon-designated Important Bird Area (IBA) that includes recent records of the target species.

e. The area can be protected and managed for a period that extends beyond the life of the project (e.g., 40 years, 50 years, or in perpetuity).

To achieve a net conservation benefit for wintering grassland bird habitat with at least the same amount of suitable wintering habitat needs to be created, managed or improved as the amount of occupied wintering habitat. The habitat used as mitigation must also be protected from adverse impacts for a length of time at least as long as the projected suitability of the habitat taken. The amount of habitat required to mitigate for wintering impacts is lower in part due to the ability of wintering raptors to cover large distances quickly to find suitable habitats on the landscape. The net conservation benefit is obtained through the best management practices that improve the suitability of the acreage specifically for wintering raptors (e.g. managed to provide roosting habitat for the target species and small mammal habitat to support their prey base).

Grassland Bird Cost Determination:

Cost determination for grassland birds is based in part on the experience the Department has in managing grassland bird habitat. The Department has been able to implement grassland bird management at an average cost of $105 per acre per year. However, this work has been implemented either on existing state land or with volunteer partners that donated the rent of their fields as match for funding to cover the costs of management. While this approach was successful in expanding nesting opportunities for grassland birds in general, listed species were only recorded in less than 1 in 5 of the fields under this management initiative. To have the best opportunity for successful use by listed species, the conditions delineated above need to be applied in the development of appropriate mitigation projects. Permanent conservation easements or purchase in fee title and transfer to a conservation organization is the best way to maintain consistency in management. The estimated average value per acre of rural land is $3250 in New York based on the USDA Land Values 2019 Summary, released August 6, 2019, by the National Agricultural Statistics Service (NASS), Agricultural Statistics Board, United States Department of Agriculture (USDA)). Prorated over 30 years (the typical life of a largescale renewable energy project), this cost comes out to roughly $110 per year. For these reasons, the estimate of $105 per acre needs to be adjusted to account for both improvement of management actions to successfully attract listed species and to account for land rental. The estimate in the table above is based on adding the cost of renting or purchasing the land ($110) and the estimated yearly cost of management ($105), for an average yearly management cost of $215 per acre per year, which comes out to $6450 per acre under a 30 year management regime.

Northern long-eared bats:

Occupied habitat for Northern long-eared bats (NLEB) recognized by the Department is limited to those areas within 1.5 miles of maternity roosts documented after the widespread distribution of White Nose Syndrome (WNS) in New York in 2008, and areas within 5 miles of hibernacula. However, since this species is listed due to the ongoing impacts of WNS and is not considered limited by its summer habitat, the primary concern is protection of active maternity roosts and preventing disturbance hibernacula. Impacts to maternity roosts can be avoided by implementing land clearing activities outside of the active season for NLEB. Throughout most of New York, the species hibernates from November 1 through March 31 (Dec 1-Feb 28 in Suffolk County). As long as clearing of trees within occupied habitat occurs during the hibernation period and no trees are removed within 150 feet of a maternity roost no adverse impacts are anticipated. However, if tree clearing within occupied habitat occurs outside of the hibernation period or if a known roost tree is removed at any time of year, mitigation may be required. In addition to habitat impacts, NLEB may be directly taken through the operation of wind turbines. If expected impacts of a proposed project cannot be minimized below the threshold of one bat lost per ten years (considered to be statistically equivalent to zero for the purpose of this Policy), then remaining impacts above this threshold must be mitigated by the project sponsor such that, on the whole, the project is able to provide a net conservation benefit to the impacted species.

NLEB at wind facilities:

For the purposes of estimating take of NLEB by wind facilities, post-construction monitoring studies with reported species composition data in the post-WNS era (i.e., after 2008) from sites in New York and Wolfe Island, Ontario were examined to determine the percentage of bats that were identified as NLEB. A total of 1,744 carcasses were reported, of which 7 individuals (0.40% of the total) were identified as NLEB.

Those studies that reported overall bat fatality estimates as bats per Megawatt (MW), corrected for searcher efficiency and scavenging rates, were then examined to determine a statewide average estimate of expected bat fatalities. These estimates were calculated using various analytical methods and sampling schemes that were designed in consultation with state, federal and provincial environmental resource agencies, and deemed sufficiently similar for the purpose of developing an aggregate estimate. The collected fatality rates for each project were expressed as a combined total number of bats of all species per MW of nameplate capacity per year (yr). A simple arithmetic mean of these estimates was calculated without the application of any weighting scheme, resulting in an estimated statewide average of 6.7 bats/MW/yr. Finally, an estimate of the expected fatality rate of NLEB per MW of nameplate capacity per year was generated as a simple product of the two calculated rates, reflected in the equation below:

6.7 bats/MW/yr x 0.0040 NLEB/bat =.027 NLEB/MW/yr

This yields an estimate of 2.7 NLEB/100MW/yr. The Department will apply this estimate of NLEB take to each wind turbine proposal in New York subject to any updates on a site-specific basis. A higher take estimate will likely be warranted for wind energy facilities sited inside recognized occupied habitat. Relevant new studies or additional data may be taken into consideration and the Department may identify a need to modify a site-specific take estimate or this policy accordingly. This calculation assumes no operational curtailment of the turbines under consideration.

Minimization of direct impacts to bats can best be accomplished by incorporating turbine curtailment at low wind speeds (beginning at ≥ 5.5 m/s) at the appropriate time of year when bats are most active on the landscape (April 1 to October 1, but at least July 1 to September 30), time of day (½ hour before sunset to ½ hour after sunrise), and temperature (≥ 50 degrees Fahrenheit). The Department estimates that NLEB mortality would be reduced by as much as 85% if blades were not free to spin until windspeeds are 5.5 m/s or greater.

The number of NLEB bats for which mitigation will be required by using the methodology above and reducing that number as a function of the likely effectiveness of the minimization actions taken to reduce impacts. For the purposes of this assessment, an expected take of greater than 1 bat per 10 years of operation would require mitigation.

NLEB mitigation:

To protect NLEB from other threats such as WNS, predation, development and human disturbance, it is fundamental for the Department to know where the species is located. Studies that are successful in identifying previously unknown maternity roosts and hibernacula would be viewed as conferring conservation benefit to the species and thus would be acceptable as mitigation. A new maternity roost is defined as any previously undocumented maternity roost that is located greater than 150 feet from any already identified roost, i.e., roosts must be more than 150 feet apart to be considered separate locations. For the purposes of determining the degree of benefit conferred by identifying a new maternity roost, the Department considers roosts to be typically viable for 10 years. Given an average productivity of 0.5 pups per year, the identification of a new roost will allow the Department to protect the site from disturbance and can be used to offset the loss of up to 5 NLEB (over a 10-year period). For the purposes of determining the degree of benefit conferred by identifying a new hibernaculum, the Department will base the benefit provided on the number of NLEB determined to use the hibernaculum. The Department will consider the identification of new hibernaculum to offset the loss of up to 50% of the NLEB utilizing the hibernaculum at the time it is accepted as a mitigation measure.

NLEB mitigation costs:

The fee payable to the endangered and threatened species mitigation bank fund for applicants to mitigate the take of NLEB is based on the estimated costs to hire a consultant to find and capture a female NLEB, affix a radio tag, and confirm a new roost location. As of the summer of 2020, the average cost to complete such a project was $37,500. Since finding a new maternity roost is considered to provide for the production of 5 NLEB, the cost per bat comes out to $7500 per bat.

Bald Eagles:

Bald eagle take is estimated based on two factors. The first factor is proximity of active nesting to project elements. If an eagle nest is located within 2 miles of a proposed wind turbine location or within 660 of any construction, tree removal or ground clearing activity, the potential for nest failure is increased. Wind turbines that are positioned within 2 miles of a nest and are geographically placed between the nesting area and prime foraging locations (usually open water) are more likely to impact nesting eagles. Project construction activities that result in the loss of trees within 660 feet of nesting areas during the breeding season, within 330 feet during any time of year, or result in increased disturbance within the line of site of birds on the nest can also result in nest failure. If nest failure is likely, the Department utilizes the average productivity of breeding bald eagle pairs (1.3 eagles fledged per nest) to estimate take. The expected number of years of disturbance are multiplied by the average productivity per nest to derive an estimate of eagle take over the life of a project.

An additional source of take for wind projects is the direct take of birds that fly into the turbines. The Department has documented 5 such events since 2015 and recommends a standard condition on all wind projects to require them to provide a net conservation benefit for any eagles documented taken in this fashion.

Bald Eagle Costs:

While there are several potential ways to mitigate for take of bald eagles (e.g. enhanced protection of nesting areas, actions that directly reduce or remove known threats at nesting and wintering locations), the US Fish and Wildlife Service (USFWS) currently only accepts one method for mitigating the take of Bald eagles. They require the retrofitting of electric poles in areas with elevated risk of electrocution of eagles as the mitigation action, with the number of poles necessary to offset the loss of an eagle determined in relation to the size of the eagle population and the frequency of electrocutions in that population. New York is part of the Northeast USFWS administrative region. The Federal Eagle Coordinator for the region provided an analysis that, as of Summer, 2020, the current estimated number of poles necessary would be 29 per eagle. The National Eagle Conservation Guidance estimates the cost to retrofit a candidate pole is $7500. Therefore, the cost estimate per eagle take would be $217,000. To prevent the potential for applicants having to implement multiple mitigation strategies to satisfy State and Federal Laws, we default to the federal method to avoid confusion.

5. Local government mandates:

These amendments do not impose any program, service, duty or responsibility upon any county, city, town village, school district or fire district.

6. Paperwork:

There is no additional paperwork required as a result of these changes.

7. Duplication:

There are no other regulations similar to this proposal.

8. Alternatives:

The first and preferred alternative would adopt this proposal in its entirety. This alternative would provide the framework necessary for the DEC to develop and implement an in-lieu fee and mitigation banking program, meet the statutory guidelines for the DEC to administer the Endangered and Threatened Species Mitigation Bank Fund, provide more and quicker options for applicants to meet mitigation requirements for adverse impacts to listed species and would improve the ability of DEC to implement successful species restoration programs.

A second alternative is to take no action. This would leave significant uncertainty for applicants and the public as to how the DEC would administer the Fund. There would be no published basis for determining what the costs should be for applicants that would make use of this option, compromising the effectiveness of the Accelerated Renewable Energy Growth and Community Benefit Act.

A third option would be to include very specific language in the regulations that establishes exact values for payments into the Fund by projects that make use of the option to meet a Net Conservation Benefit. While this could provide more specificity to applicants, this would remove flexibility to develop new mitigation strategies that may be cheaper or more effective, forcing DEC to propose and adopt rule changes before making new options available. This would compromise the ability of applicants for large scale renewable energy projects to get approval for their projects within the time frames outlined by the Accelerated Renewable Energy Growth and Community Benefit Act. In addition, the costs of mitigation actions are likely to change through time as the costs of land, services and commodities fluctuate. Again, if costs were fixed in the regulation, it would be time consuming and labor intensive to amend them.

A fourth option would be to estimate the costs based on the total anticipated impact of projects on listed species and then allocate those costs to each project based on the actual footprint of the project. While this could potentially provide the certainty for project applicants as to what costs they would be incurring and allocate costs across projects in a fair manner, this approach would be dependent upon the Department being able to accurately predict the extent of impacts from projects that have not yet been proposed. In addition, such a mitigation approach would not provide any incentive to avoid listed species habitat and would treat projects similarly whether they were taking listed species or not.

The preferred alternative offers the greatest flexibility to meet the applicants need for certainty in process and still provide flexibility to allow for timely, innovative solutions.

9. Federal standards:

The Federal Endangered Species Act is similar in intent, but does not apply to most state listed species. Where there is overlap between the jurisdiction of the two species, the Department has a Cooperative Agreement in place with the United States Fish and Wildlife Service that requires the agencies to cooperate in the protection of those federally listed species. These proposed regulatory changes are compatible with that agreement and, through Department cooperation with the Federal government, allow for a permit issued by the Department to satisfy Federal standards in most cases. These regulations are also consistent with protection afforded to Bald and Golden Eagles under the Federal Bald and Golden Eagle Protection Act and the protection of migratory birds under the authority of the Federal Migratory Bird Treaty Act.

10. Compliance schedule:

The new regulations would be in force immediately upon adoption. As these proposed regulatory changes do not expand the scope of regulation, there would be no new compliance requirements incurred by the public or local governments as a result.

1. Effect of rule:

Local governments and small businesses may potentially be affected by this proposed rule. However, the effect of this rule making does not expand the reach of the regulatory authority. Instead, it will provide businesses and local governments potential alternatives for mitigating projects that fall under the jurisdiction of Article 11-0535.

2. Compliance requirements:

Compliance requirements are not altered by this proposed rule making. As already required under SEQR and Article 11-0535, listed species impacts must already be addressed. Compliance with this requirement would be made easier through the provision of mitigation options through the use of mitigation banks and payments into the endangered and threatened species mitigation bank fund to meet mitigation requirements that may be required to be in compliance with existing regulatory requirements.

3. Professional services:

No new services would be required by local governments or small businesses to comply with this proposed rule making. As is the case under the existing regulations, environmental consultant services may be useful for projects that fall under jurisdiction of this proposed rule making.

4. Compliance costs:

This proposed regulation does not impose any additional burden on affected local governments and small businesses. These changes only effect entities that require incidental take permits pursuant to the existing regulations. The proposal creates mitigation options for certain projects by allowing for the creation of mitigation banks and, for large scale renewable energy projects, payment into the endangered and threatened species mitigation bank fund to meet their net conservation benefit requirements.

5. Economic and technological feasibility:

Since this proposal does not require local governments or small businesses to do anything they have not already had to do in the past, the implementation of this rule makingis both economically and technologically feasible. In addition, the new options for mitigation will help make compliance with regulatory requirements easier than ever.

6. Minimizing adverse impact:

This proposal creates new options for certain project types to meet mitigation requirements necessary to obtain a permit in compliance with the existing regulations. As such, this proposed rule making is not anticipated to create any new or additional impacts on local government or small business, as the existing rule already established the prohibitions and permit needs that are clarified in this rule making.

7. Small business and local government participation:

The State Administrative Procedures Act requires agencies to provide public and private interests the opportunity to participate in the rule making process through public comment periods. In addition, in the past ten years, the Department has met with the Association of Towns and New York State Association of Counties on several occasions to discuss the topic of Endangered species regulation. The Department will continue to meet with any concerned entity to hear their concerns. Listed species issues will also still primarily be addressed through the SEQR process, with local governments continuing to frequently take on the role of lead agency.

8. For rules that either establish or modify a violation or penalties associated with a violation:

The proposed revisions to Part 182 do not require the imposition of a cure period because there are no changes to any existing violations or penalties, and no new violations or penalties are established.

1. Types and estimated numbers of rural areas:

Part 182 applies statewide and this proposed rule making will not alter that. However, these rules govern mitigation projects for development. Since mitigation projects largely focus on larger tracts of suitable wildlife habitat, these are more likely to occur in rural areas.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The rules that the department is proposing will help provide a predictable and transparent process for large scale energy project to mitigate impacts regulated under the State’s Endangered Species Law. Existing law and regulation requires permits for activities that result in harm to listed species and require an endangered species mitigation plan that provides a net conservation benefit to the affected species. This rule would allow the Department to utilize the State Endangered and Threatened Species Mitigation Bank Fund (Fund) to provide a net conservation benefit to species impacted by the projects that contribute to the Fund. Since the primary target of mitigation actions will be areas already occupied by listed species, these rules will be implemented without creating new regulatory burdens for landowners. Consequently, this proposed rule making does not pose any new compliance requirements or any increase in compliance requirements.

3. Costs:

The proposed rule does not create any new requirement for landowners or municipalities. The impact of this rule making on rural communities may reduce any costs associated with this rule as the Fund will be used in part to compensate willing landowners to continue to maintain listed species on their property.

4. Minimizing adverse impact:

The proposed changes clarify existing law and regulations by providing an alternative for certain projects to satisfy their mitigation requirements. As such, this rule making is not anticipated to create any new or additional impacts on rural communities.

5. Rural area participation:

The State Administrative Procedures Act requires agencies to provide public and private interests in rural areas the opportunity to participate in the rule making process via the mandated 60 day public comment period. In addition, the Department will continue to meet with any concerned entity to hear their concerns.

1. Nature of impact:

This proposed rule making will modify the existing regulations to clarify how endangered species mitigation banks and the endangered and threatened endangered species mitigation bank fund can be utilized. As a result of this rule making, there will be predictable options for certain projects that are required to provide mitigation for affected listed species under these regulations. Since this rule making will not place new requirements on any entities, the impact on jobs is estimated to be neutral.

2. Categories and numbers affected:

As with the existing regulation, projects may not take listed species without a permit. Consequently, this proposed regulation does not reduce the protections for listed species, rather this proposed rule making provides guidance on how mitigation banks and payments into the endangered and threatened species mitigation bank fund can be used as options when mitigation is required. The result will be an increase in the efficiency in which listed species mitigation can be addressed, potentially resulting in more rapid project approvals. No net impact to jobs is expected.

3. Regions of adverse impact:

This proposed rule making makes no modification of the regions impacted by the existing regulation.

4. Minimizing adverse impact:

This proposed rule making makes no change to types of activities that would fall under regulatory jurisdiction. Therefore, there are no adverse impacts anticipated through this proposed rule making.