New Mexico Administrative Code
Title 19 - NATURAL RESOURCES AND WILDLIFE
Chapter 21 - ENDANGERED PLANTS
Part 2 - ENDANGERED PLANT SPECIES LIST AND COLLECTION PERMITS
Section 19.21.2.11 - INCIDENTAL TAKE PERMIT

Universal Citation: 19 NM Admin Code 19.21.2.11

Current through Register Vol. 35, No. 18, September 24, 2024

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.

Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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