Rulemaking Begins that will Weaken Protections for Threatened and Endangered NH Wildlife
Sept. 28 (2:00 PM) hearing at NH DES in-person and on WebEx
Sept. 30 (2:00 PM) hearing at NH F&G (only in-person, unless online access is added).
Purpose of the hearings:
The purpose of the hearings is for people to comment on the proposed rules affecting Threatened & Endangered Species (T&E) of wildlife. The NH Department of Environmental Services (DES) and the NH Fish & Game Department (F&G) have filed the attached proposed Notices and Initial Proposals with the Joint Legislative Committee on Administrative Rules (JLCAR).
The agencies are basing their rules on the recently-revised NH Endangered Species Conservation Act that was changed as a result of the passage of Senate Bill 129 that takes effect on October 9.
A Note about the recently-revised NH Endangered Species Conservation Act (NH ESCA):
The law was not changed to allow the Avoid-Minimize-or-Mitigate hierarchy of harm but was changed, thankfully, to a much stronger standard of Avoid and Minimize harm.
The revised law (RSA 212-A) requires that all actions authorized, funded, or carried out by the state agencies be designed to avoid and minimize harm to such species and habitat designated as critical. This means that Alteration of Terrain permits (for example) must avoid harm to T&E species and must minimize harm until there is no harm that reduces the likelihood of both the survival and recovery of a T&E species’ population, either directly or indirectly. F&G further clarifies that no activity approved by a state agency is allowed to reduce T&E reproduction (i.e. offspring), numbers and their distribution (i.e. where they live).
A brief note about the DES rules:
Whereas the revised NH ESCA has strong protective language, DES is still trying its best to ignore it and is proceeding to weaken its rules considerably. DES mistakenly is using the Avoid/Minimize/Mitigate standard that is not the law and using it to get rid of the required study of T&E for projects that do not have reports of wildlife in the incomplete (hit or miss) Natural Heritage Bureau database. DES would wrongly not refer projects to F&G for review.
A brief note about the F&G rules:
F&G’s proposed rules are long overdue, and they fill the need of clearly explaining what’s involved in an F&G project review, if and when DES or another agency sends a project over to F&G for review. However, DES wants to severely limit the projects to be referred to F&G. In other words, F&G staff will not even become aware of many projects that impact T&E species and their habitats.
For projects that do get referred to F&G, the F&G rules are overall very good, with the one big exception that F&G makes the same error that DES does in using the standard of Avoid, Minimize, or Mitigate that is not the law.
MORE INFO TO COME IN THE DAYS AND WEEKS AHEAD
The JLCAR lawyers and others will be analyzing what exactly DES and F&G are trying to do with their proposed rules and their analyses will help us to stand up for the strongest rules possible to protect T&E wildlife, so stay tuned for updates.
For information about this alert, contact: