N.M. Admin. Code § 19.21.2.11 - INCIDENTAL TAKE PERMIT
The state forester may issue, issue with conditions or deny requests for an incidental take permit to allow a permittee to take endangered plants so long as taking is incidental to and not the purpose of carrying out an otherwise lawful activity. Such requests shall be subject to the following requirements.
A. The state forester may
issue an incidental take permit only if the applicant submits a completed
application on a form designated by the state forester that contains the
following:
(1) the impact on the species that
will likely result from the taking including the number of endangered plants to
be taken;
(2) information and
analysis that establishes that such taking will not appreciably reduce the
likelihood of the survival and recovery of the species in the wild including
range wide and local species status, number of endangered plants in the
activity area, number of endangered plants in the activity area taken, number
of endangered plants in the activity area avoided, direct and indirect effects
on the species and population resulting from the activity, disturbance
frequency and intensity, cumulative effects resulting from the activity and
interrelated effects affecting the species' survival and any supporting
documentation;
(3) the best
management practices and mitigation activities the applicant will use to avoid,
minimize and mitigate the impacts to the species from such a taking during the
implementation of the proposed activity (e.g., fencing off
areas with endangered plants during construction period, saving topsoil layer
and returning to site after construction, dust mitigation, seed collection,
adjusting or reducing project footprint, biological monitoring on site during
construction); and
(4) signed
commitment that applicant will implement the best management practices and
mitigation activities and submit a written report upon completion of the
practices and activities.
B. An application must also include
(1) the applicant's name, address, phone
number, email address and, if applicable, name and title of the applicant's
authorized representative;
(2) the
location of the proposed activity with a map, location coordinates (if
available) and size (acreage) of proposed activity;
(3) description of the proposed
activity;
(4) property ownership;
and
(5) a signed certification by
the applicant that states that the applicant assumes complete responsibility
for any resulting impacts on endangered plants or the occupied habitat of such
plants caused by the activity.
C. An incidental take permit application for
an endangered plant also listed under federal law must be accompanied by United
States department of the interior, fish and wildlife service consultation
response or biological opinion if federal law requires the response or
biological opinion.
D. The state
forester may authorize or require transplantation of endangered plants as a
condition of an incidental take permit if the applicant demonstrates the need
for transplantation or the state forester otherwise determines it is necessary.
Where transplantation is proposed, in addition to the information required by
Subsection A of
19.21.2.11 NMAC, the applicant
shall:
(1) explain the need for
transplantation;
(2) identify the
number of plants to be transplanted;
(3) explain the transplantation
method/protocol to be employed;
(4)
identify the site to which the plants will be taken for transplantation and
describe the long-term protections provided at the site;
(5) identify the timeline for the proposed
transplantation;
(6) describe the
monitoring plan for transplantation; and
(7) include the name and qualifications of
the person carrying out the transplantation.
E. If the state forester denies an
application for an incidental take permit or issues an incidental take permit
with conditions, the state forester shall provide the reasons for the denial or
conditions in writing.
F. A
permittee may not transfer an incidental take permit without the state
forester's written approval.
G. The
state forester's issuance of an incidental permit is not authorization to
conduct the proposed activity; the incidental take permit only authorizes the
incidental take. If the permittee does not own the land where the activity will
occur, the permittee shall also possess or obtain the landowner's authorization
for the incidental take if the landowner requires. A permittee shall comply
with other applicable federal, state or local laws; possess or obtain permits,
licenses or other authorizations other entities require; and if not the owner
of the land where the activity will occur, possess or obtain the landowner's
authorization to conduct the activity or use the land for the
activity.
H. The division does not
require a person conducting an activity to survey to determine the existence of
endangered plant(s), but this does not relieve the applicant to conduct surveys
that may be required by federal, other state or local agencies.
I. Emergency response. The following are
exempt from the requirement to obtain an incidental take permit: law
enforcement or emergency responses or other federal, state or local agency
civil actions, whether or not undertaken by or in coordination with the
division, that are necessary to prevent or respond to immediate threats to
public health, safety or environment, including firefighting and flood
management or controlling, containing and capturing releases of hazardous or
harmful materials. If the division is not involved in the emergency response,
it should be notified of the response as soon as practicable. Any known
endangered plant(s) within the area of emergency response should be monitored
to the extent practicable so that any adverse effects can be avoided or
mitigated.
Notes
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