Current through Register Vol. 48, No. 38, September 20, 2024
a) Actions Requiring Review for Consultation
- Any construction, land management or other activity authorized, funded or
performed by a State agency or local unit of government that will result in a
change to the existing environmental conditions and/or may have a cumulative,
direct or indirect adverse impact on a listed species or its essential habitat
or that otherwise jeopardizes the survival of that species and/or may have a
cumulative, direct or indirect adverse impact on a Natural Area shall be
evaluated through the consultation process. This includes but is not limited to
the following:
1) the alteration, removal,
excavation or plowing of non-farmed, non-cultivated areas, or dredging of soil,
sand, gravel, minerals, organic matter, vegetation, or naturally occurring
materials of any kind;
2) the
changing of existing drainage characteristics or sedimentation
patterns;
3) the grading or removal
of materials that would alter existing topography;
4) the creation of new, or the increase in
existing permanent barriers to the
5) a discharge of pollutants into the air,
water, or on the land;
6) the
application of chemicals to the air, water, or on the land;
7) preliminary plats, plans and permits;
and
8) an application for rezoning
from a non-urban classification to an urban classification (e.g. from
agricultural to residential) or a change from one urban classification to
another on land not used in its entirety for the original
classification.
b)
Actions Not Requiring Review - Actions authorized, funded or performed by State
agencies or local units of government not resulting in a land-disturbing
activity or not directly or indirectly affecting an endangered or threatened
species or a Natural Area are not required to be evaluated by the consultation
process. Such actions shall involve activities not listed in Section
1075.30(a)
(e.g. acquisition of equipment or
rehabilitation of an existing structure).
c) Actions Exempted - The following actions
are exempt from the consultation process unless it is evident that there will
be an adverse impact to a listed species or its essential habitat or to a
Natural Area:
1) mowing within maintained
highway rights-of-way;
2) routine
resurfacing and application of oil and gravel to existing roads and highways
that do not require widening of the road or shoulder;
3) construction activities required for the
maintenance or repair of existing structures;
4) actions in those areas with a
Department-approved management plan, where the proposed actions are consistent
with the Plan and are undertaken to maintain or improve natural ecosystem
conditions or to re-establish pre-settlement vegetation conditions. This
includes such actions as prescribed burns, spot application of herbicides,
brush clearing and other appropriate natural resource management activities.
Where a listed species is known to be present, management for its survival and
recovery shall be a priority;
5)
actions within highway rights-of-way, unless specifically notified by the
Department, that adjoin land used for agricultural or urban purposes, except
those portions of the right-of-way adjacent to borrow pits, railroads, streams,
wetlands, lakes, or other natural areas and open space;
6) maintenance of existing lawns, yards and
ornamental plantings;
7) annual,
routine cultivation of existing agricultural lands; and
8) change of zoning requests for land
currently zoned, developed, and used in its entirety for commercial, industrial
or residential purposes.
d) Memorandums of Understanding - the
Department may enter into an agreement with an agency, referred to as a
Memorandum of Understanding (MOU) which allows the development of an expedited
review process, the review of comprehensive plans and natural resource
ordinances, or exempts from the consultation process those actions commonly
performed by that agency and that have no adverse impact to a listed species or
its essential habitat or a Natural Area.
1)
The Memorandum of Understanding shall expire in 1 to 3 years, based on the type
of activity or the frequency with which it is performed. At the time of
renewal, the agency shall submit a report evaluating the following:
A) whether the actions exempted avoided,
minimized or created an adverse impact to a listed species and its essential
habitat or a Natural Area; and
B)
if the technology of the exempted action has changed to such an extent that the
action should no longer be exempted.
2) The Memorandum of Understanding shall be
available for review from the Department upon request.
e) If more than two years elapses between the
review and approval of the proposed action and implementation, the Department
shall have an opportunity to review the Agency Action Report again to determine
whether a listed species or Natural Area is present.
f) Compliance with this Part does not relieve
the agency from applicable state or federal laws or regulations.
