12 010 012. VERMONT ENDANGERED AND THREATENED SPECIES (10 V.S.A. APP. §10)
Section 1.0 Authority.
This rule is adopted pursuant to 10 V.S.A., §§ 5402, 5403 and 5408 which provide 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 and conservation of endangered and threatened species."
Section 2.0 Purpose.
The purpose of this rule: is to identify and list species of wild plants and animals that have been determined by the Secretary to be endangered and threatened in Vermont so that they may be protected under the law. The rule also sets out a process for Takings and Possession permits.
Section 3.0 Definitions.
3.1 "Endangered Species" means those species whose continued existence as viable components of the state's wild flora or fauna is determined to be in jeopardy or determined to be an "endangered species" under the federal Endangered Species Act.
3.2 "Listed species" means any species that appears on the List in Section 5.0 of this rule, or has been determined to be threatened or endangered by other relevant law.
3.3 "Secretary" means the Secretary of the Agency of Natural Resources except where otherwise specified.
3.4 "Take and taking" with respect to wildlife means pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting fish, birds and quadrupeds and all lesser acts, such as disturbing, harrying or worrying or wounding or placing, setting, drawing or using any net or other device commonly used to take fish or wild animals, whether they result in the taking or not; and shall include every attempt to take and every act of assistance to every other person in taking or attempting to take fish or wild animals, provided that when taking is allowed by law, reference is had to taking by lawful means and in lawful manner, and with respect to wild plants means uprooting, transplanting, cutting, injuring or killing or any attempt to do the same or assisting another who is doing or is attempting to do the same, consistent with the definitions found in 10 V.S.A. §§5401 (14) and 4001(23).
3.5 "Threatened Species" means those species that are likely within the foreseeable future to become Endangered.
Section 4.0 Permits for Taking and Possession.
4.1 No person shall take or possess an endangered or threatened species, except when exempted as provided for in 10 V.S.A. §5408.
4.2 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: for scientific purposes; to enhance the propagation of species; to prevent or mitigate economic hardship; for zoological exhibition; for educational purposes; for noncommercial cultural or ceremonial purposes to a person for the collection and possession of a dead salvage bird or parts thereof, including bird feathers, provided that the permit issued complies with federal requirements regarding collection and possession of migratory birds and the bird was legally acquired, transferred from an individual who acquired it legally, or found dead and the permittee had no part in the intentional killing of the bird; or for a special purpose consistent with the purpose of the Federal Endangered Species Act ( see 16 U.S.C. §1531(b)).
4.3 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).
4.4 An administratively complete application shall include all information deemed necessary by the Secretary to evaluate the application. An application shall include a description of the possible impacts due to the proposed action, and a plan for conservation or mitigation. The fee or mitigation proposal as required by 10 V.S.A ch. 123 shall accompany the application.
4.5 Avoidance and Minimization
a. Applicants for Taking and Possession permits shall have the burden to show that reasonable steps have been taken in order to avoid and minimize takings. The Applicant must provide information that demonstrates:
i. The proposed activity cannot practicably be designed to avoid taking and still satisfy the basic project purpose; and
ii. If avoidance of taking of a listed species 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.
4.6 Mitigation
a. Mitigation may be required when full compliance with the requirements of 4.5 of this rule is insufficient to achieve no taking.
i. Mitigation may include permanent conservation of habitat in which the same species exists, ongoing monitoring of conserved areas, and treatment of conserved areas for the purposes of restoration or propagation of listed species.
ii. The compensation may also include payment of fees to a state "in-lieu fee" program or mitigation fund approved by the Secretary.
4.7 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.
4.8 Permit Conditions
a. The Secretary may require, as part of an issued permit, conditions for the protection and conservation of endangered species, per 10 V.S.A. ch. 123.
4.9 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.
4.10 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.
Section 5.0 Listing.
5.1 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.
5.2 PLANTS
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[1 ] Lespedeza violacea (L.) Pers. is now what was formerly known as L. intermedia (S. Watts) Britton and is not listed.
5.2.1 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.
5.3 AMPHIPODS
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5.4 INSECTS
5.4.1
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5.4.2 No enforcement shall be taken and no permit shall be required for the taking of threatened or endangered bees:
a. for the application of pesticides unless:
i. The pesticide was not applied in accordance with the applicable federally approved label and state Agency of Agriculture, Food, and Markets (AAFM) regulations or permits; or
ii. The Secretary of the Agency of Natural Resources after consultation with the Secretary of the Agency of Agriculture, has notified a person of the likely presence of threatened or endangered bees, has advised the person to avoid taking the bees or to obtain a permit, and the person has failed to prevent a taking or obtain a permit.
b. for otherwise legal activities such as, silviculture, mowing, road maintenance, construction, and painting and staining unless: the Secretary of the Agency of Natural Resources, has notified a person of the likely presence of threatened or endangered bees, has advised the person to avoid taking the bees or to obtain a permit, and the person has failed to prevent a taking or obtain a permit.
c. for aerial spraying or other activities under the direction of the Vermont Department of Health (VDH) to address public health threats such as arbovirus. The Secretary shall coordinate with AAFM and VDH to reduce the likelihood of taking bees.
5.4.3 The Secretary may develop best management practices (BMPs) to avoid and minimize the taking of bees. The Secretary shall consult with the AAFM, the Vermont Agency of Transportation, VDH, and any other interested state agency prior to finalizing the BMPs.
5.4.4
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5.5 MOLLUSKS
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5.6 FISH
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5.7 AMPHIBIANS
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5.8 REPTILES
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5.9 BIRDS
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5.10 MAMMALS
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Date listed:
1 = 04-13-87
2 = 07-30-88
3 = 06-23-89
4 = 11-09-91
5 = 12-07-94
6 = 03-18-99
7 = 04-23-05
8 = 02-16-11
9 = 07-15-11.
10 = 11-15-12
11 = XX-XX-XX
A = listed as threatened on 04-13-87
B = listed as threatened on 12-07-94
C= listed as threatened on 06-23-89
*Indicates a name change (synonym or different taxonomic level) from a previous Vermont Endangered and Threatened Species list
HISTORY: STATUTORY AUTHORITY: 10 V.S.A. §§ 5402, 5403, 5408
EFFECTIVE DATE: April 13, 1987
AMENDED: July 30, 1988; June 23, 1989; November 9, 1991 Secretary of State Rule Log #91-67; December 7, 1994 Secretary of State Rule Log #94-54; March 18, 1999 Secretary of State Rule Log #99-14; April 23, 2005 Secretary of State Rule Log #05-10; February 16, 2011 Secretary of State Rule Log #11-005; July 15, 2011 Secretary of State Rule Log #11-029; November 15, 2012 Secretary of State Rule Log #12-038; March 28, 2015 Secretary of State Rule Log #15-009