Rulemaking Begins that will Weaken Protections for Threatened and Endangered NH Wildlife

NH’s Endangered Nighthawk

UPDATE October 1, 2021

ACTION ALERT

Send Comments about Proposed Rules for Threatened & Endangered Wildlife Species

ACTION #1:  To help endangered wildlife species, send comments about the rules to NH Department of Environmental Services and the NH Fish & Game Department – TALKING POINTS ARE BELOW

Comments can be sent in anytime to each agency through October 6 for DES rules to Addison.r.mauck@des.nh.gov and through October 8 for F&G rules to comments@wildlife.nh.gov. Writing one letter sent to both agencies is okay to do and advisable.

TALKING POINTS and suggested format, and be sure to sign your e-letter at the end with your full name and address. It is best to use your own words as much as possible.

Subject: Opposition to DES rules, partial support of F&G’s rules

Dear Mr. Mauck (NH DES) and Mr. Marchand (NH F&G):

These are my comments about your proposed rules.

>  I oppose DES’ rule because it is a mistake to get rid of the study to find and understand the land-use behavior of the Threatened & Endangered Wildlife species that may be on a proposed project’s site.

>  Because the statute does not allow DES or F&G to approve projects that harm endangered species or the habitat they need to survive, you must first know how a project can be designed to avoid harm and then require the project to avoid harm.

>  DES and F&G should not rely only on the reports of rare wildlife that are in the Natural Heritage Database because rare wildlife has never been searched for in most places in New Hampshire. Site-specific wildlife studies are therefore necessary.

>  I support F&G’s rules that spell out very important definitions and processes, with the exception of using a standard of “avoid, minimize, or mitigate” harm that is not the language in the law. Instead, the law requires the standard of “avoid and minimize” harm that F&G as well as DES are  now obligated to use.

Respectfully submitted,

Your full name and address

If you want to send comments that are more in-depth, consider the ideas below:

Subject: Opposition to DES rules, partial support of F&G’s rules

Dear Mr. Mauck (NH DES) and Mr. Marchand (NH F&G):

1. I disagree with the proposed rules that eliminate the requirement to appropriately study wildlife at every site and assess their use of the habitat. Do not deny NH F&G the chance that they need to review projects that potentially impact Threatened or Endangered (T&E) species in order to do their statutory duty to protect them.

2.  I disagree with NH DES wanting to revert back to relying on the insufficient database of the Natural Heritage Bureau. NH F&G knows that there are many habitats in NH that are likely to have T&E species and those sites must be evaluated prior to projects being approved. The Natural Heritage Bureau cannot fill that function. Keeping the study requirement in the rules will help protect T&E from permitting errors that end up going to court.

3.  All the worry that NH DES has had about a backlog of review will go away now that NH F&G is hiring three full-time staff dedicated to helping with reviews.

4.  Both NH DES and NH F&G are misinterpreting the statute that the proposed rules are based on. Both your agencies believe that they can use the strategy of avoid, minimize, or mitigate impacts to T&E, but the newly-revised NH Threatened & Endangered Species Conservation Act says differently. In a nutshell, as of October 9, 2021 projects must avoid harm to T&E and must minimize harm down to the point that the impacts do not reduce the likelihood of survival and recovery of a T&E species.

5. NH F&G’s definition of “Habitat determined to be critical” contains the error of avoid, minimize, or mitigate adverse impacts to T&E as follows: “Habitat determined to be critical” means a geographical area of land or waters designated by the executive director of the department that currently or historically provide(s) physical or biological features essential to the conservation of an endangered or threatened species and may require the deployment of conservation measures to avoid, minimize, or mitigate adverse impacts to threatened and endangered species.

6.  I support NH F&G’s definition of “harm” —- means any act which kills or injures individuals of a threatened or endangered species, or which acts to destroy, degrade, or adversely modify the habitat supporting the species by interfering with breeding, hibernation, reproduction, feeding, sheltering, migration or overwintering behaviors that are a part of the species’ normal or traditional life cycle and that are essential to its survival and perpetuation.

7.  I support NH F&G’s definition of “jeopardize the continued existence of” – means to engage in an action that reasonably would be expected, directly or indirectly, to reduce the likelihood of both the survival and recovery of a threatened or endangered species’ population by reducing the reproduction, numbers, or distribution of that species.

8.  I oppose NH DES’ rules because they would prevent NH F&G from reviewing many projects that would harm T&E species, and I support NH F&G’s rules that are very well described, with the only exception being the erroneous reliance on the strategy of Avoiding, Minimizing or Mitigating instead of what is required by law which is Avoid and Minimize Harm.

Respectfully yours,

Name and address

ACTION #2:  You may also want to participate in F&G’s upcoming hearing.                                                 

Sept. 30 (2:00 PM) hearing at NH F&G at 11 Hazen Drive in Concord, NH (only in-person, unless online access is added). The purpose of the hearing is for people to comment on the proposed rules affecting Threatened & Endangered Species (T&E) of wildlife.  

Background Information:

·        About the recently-revised NH Endangered Species Conservation Act (NH ESCA):

The law was not changed by Senate Bill 129 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 their 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 a F&G project review, if and when DES or other 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.

FOR MORE INFO:

For information about this alert or to read the proposed rules, contact:

Suzanne Fournier

BroxEnvironCitizens2@comcast.net

(603) 673-7389

_____________________________________________________________________________________

Sept. 28 (2:00 PM) hearing at NH DES in-person and on WebEx

NOTICE OF RULEMAKING: Env-Wq 1500 Requirements for Alteration of Terrain Permits and Consultation with NH Fish and Game Department | NH Department of Environmental Services                                                   

Sept. 30 (2:00 PM) hearing at NH F&G (only in-person, unless online access is added).

Public Hearing on New Rules for the Conservation of Threatened and Endangered Species Scheduled for September 30 – NH Fish and Game Department (nhfishgame.com)

Comments can be sent in anytime to each agency through October 6 for DES rules to Addison.r.mauck@des.nh.gov and through October 8 for F&G rules to comments@wildlife.nh.gov.

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:

Suzanne Fournier

AnimalFriendlySolutions@comcast.net

(603) 673-7389

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