Current through Register Vol. 43, No. 39, September 26, 2024
(a) The following
definitions shall apply only to this regulation:
(1) "Action" means an activity resulting in
physical alteration of a listed species' critical habitat, physical disturbance
of listed species, or destruction of individuals of a listed species.
(2) "Critical habitat" means either of the
following:
(A) Specific geographic areas
supporting a population of a listed species and including physical or
biological features that meet the following requirements:
(i) Are essential to the conservation of the
species; and
(ii) require special
management or protection; or
(B) specific geographic areas not documented
as currently supporting a population of a listed species but determined
essential for the conservation of the listed species by the
secretary.
(3) "Habitat"
means the abode where a listed species is generally found and where all
essentials for survival and growth of the listed species are present.
(4) "Intentional destruction" means an act or
attempt that is willful and is done for the purpose of, and results in, the
killing of a threatened or endangered species.
(5) "Intentional taking" means an act or
attempt that is willful and is done for the purpose of taking a threatened or
endangered species. "Intentional taking" shall include "intentional
destruction" as defined in paragraph (a)(4).
(6) "Listed species" means those species
listed in
K.A.R.
115-15-1.
(7) "Normal farming and ranching practices"
shall include activities financed with private funds on private lands and
government cost-shared, routine agricultural land treatment measures.
(8) "Permit from another state or federal
agency" shall not include a certification or registration.
(9) "Publicly funded," when used to describe
an action, means any action for which planning and implementation are wholly
funded with monies from federal, state, or local units of government.
(10) "State or federally assisted," when used
to describe an action, means any action receiving technical assistance or
partial funding from a state or federal governmental agency.
(b) Each person sponsoring or
responsible for a publicly funded action, a state or federally assisted action,
or an action requiring a permit from another state or federal government agency
shall apply to the secretary for an action permit on forms provided by the
department, unless one of the following exceptions applies:
(1) An action permit shall not be required to
conduct normal farming and ranching practices, unless a permit is required by
another state or federal agency or these practices involve an intentional
taking.
(2) An action permit shall
not be required for the development of residential and commercial property on
privately owned property financed with private, nonpublic funds, unless a
permit is required by another state or federal agency or the development
involves an intentional taking.
(3)
An action permit shall not be required for any activity for which a person has
obtained a scientific, educational, or exhibition permit, pursuant to
K.S.A.
32-952 and amendments thereto and
K.A.R.
115-18-3.
(4) An action permit shall not be required
for any species listed after July 1, 2016 if a recovery plan for the listed
species is not completed within four years of the listing date, unless the
species is listed as threatened or endangered under federal law or until a
recovery plan for the listed species is completed.
(c) Each action permit application shall be
submitted at least 90 days before the proposed starting date of the planned
action and shall include the following information:
(1) Location and description of the proposed
action and, if required, detailed plans of the proposed action;
(2) an assessment of potential impacts on the
listed species or its critical habitat resulting from the proposed action;
and
(3) proposed measures
incorporated into the action plan to protect listed species or critical habitat
of listed species.
(d)
Each person sponsoring or responsible for an action for which an action permit
is not required by subsection (b) and that will result in the intentional
destruction of a member of any listed species shall apply to the secretary for
an action permit on forms provided by the department. An action permit shall
not be required for any activity for which a person has obtained a scientific,
educational, or exhibition permit, pursuant to
K.S.A.
32-952 and amendments thereto and
K.A.R.
115-18-3. An action permit application shall
be submitted at least 30 days before the proposed starting date of the planned
action and shall include the following information:
(1) Location and description of the proposed
action and, if required, detailed plans of the proposed action;
(2) an assessment of potential impacts on the
listed species or its critical habitat resulting from the proposed action;
and
(3) proposed measures
incorporated into the action plan to protect listed species or critical habitat
of listed species.
(e)
An action permit required under subsection (b) or (d) shall be issued by the
secretary pursuant to a timely and complete application, if the proposed action
meets the requirements of the following:
(1)
Sufficient mitigating or compensating measures to ensure protection of either
critical habitats or listed species, or both as conditions require,
cooperatively developed by the department and the applicant and incorporated
into the proposed action; and
(2)
all federal laws protecting listed species.
(f) A public hearing on the proposed action
may be provided by the secretary before issuance of an action permit.
(g) In addition to other penalties prescribed
by law, any action permit may be revoked by the secretary for any of the
following reasons:
(1) Violation of conditions
established by the permit;
(2)
significant deviation of an action from the proposed action; or
(3) failure to perform or initiate
performance of an action within one year after the proposed starting date,
unless otherwise specified in the permit or an extension has been authorized in
writing by the secretary after a determination of no significant change in the
proposed action.
(h) Law
enforcement action shall be undertaken only in cases of intentional
taking.
(i) Nothing in this
regulation shall be deemed to exempt a person from the requirement to acquire
knowledge of the presence of a listed species by the exercise of due diligence
once a listed species is known to exist within an area or the area is
designated as critical habitat. This subsection shall be applied only to
offenses or obligations arising under state statutes or regulations.
