Vermont § 5408 - Authorized takings; incidental takings; destruction of critical habitat

§ 5408. Authorized takings; incidental takings; destruction of critical habitat

• (a) Authorized taking. Notwithstanding any provision of this chapter, after obtaining the advice of the Endangered
  Species Committee, the Secretary may permit, under such terms and conditions as the
  Secretary may require as necessary to carry out the purposes of this chapter, the
  taking of a threatened or endangered species, the destruction of or adverse impact
  on critical habitat, or any act otherwise prohibited by this chapter if done for any
  of the following purposes: (1) scientific purposes; (2) to enhance the propagation or survival of a threatened or endangered species; (3) zoological exhibition; (4) educational purposes; (5) noncommercial cultural or ceremonial purposes; or (6) special purposes consistent with the purposes of the federal Endangered Species Act. (b) Incidental taking. After obtaining the advice of the Endangered Species Committee, the Secretary may
  permit, under such terms and conditions as necessary to carry out the purposes of
  this chapter, the incidental taking of a threatened or endangered species or the destruction
  of or adverse impact on critical habitat if: (1) the taking is necessary to conduct an otherwise lawful activity; (2) the taking is attendant or secondary to, and not the purpose of, the lawful activity; (3) the impact of the permitted incidental take is minimized; and (4) the incidental taking will not impair the conservation or recovery of any endangered
  species or threatened species. (c) Transport through State. Nothing in this chapter shall prevent a person who holds a proper permit from the
  federal government or any other state from transporting a member of a threatened or
  endangered species from a point outside this State through the State. (d) Possession. Nothing in this chapter shall prevent a person from possessing in this State wildlife
  or wild plants that are not determined to be “endangered” or “threatened” under the
  federal Endangered Species Act where the possessor is able to produce substantial
  evidence that the wildlife or wild plant was first taken or obtained in a place without
  violating the law of that place, provided that an importation permit may be required
  under section 4714 of this title or the rules of the Department of Fish and Wildlife. (e) Interference with agricultural or silvicultural practices. No rule adopted under this chapter shall cause undue interference with farming, forestry
  operations, or accepted silvicultural practices. This section shall not be construed
  to exempt any person from the provisions of the requirements of this chapter. The
  Secretary shall not adopt rules that affect farming, forestry operations, or accepted
  silvicultural practices without first consulting the Secretary of Agriculture, Food
  and Markets and the Commissioner of Forests, Parks and Recreation. (f) Consistency with State law. Nothing in this chapter shall be interpreted to limit or amend the definitions and
  applications of necessary habitat in chapter 151 of this title or in 30 V.S.A. chapter 5. (g) Effect on federal law. Nothing in this section permits a person to violate any provision of federal law concerning
  federally protected threatened or endangered species. (h) Permit application. An applicant for a permit under this section shall submit an application to the Secretary
  that includes the following information: (1) a description of the activities that could lead to a taking of a listed threatened
  or endangered species or the destruction of or adverse impact on critical habitat; (2) the steps that the applicant has or will take to avoid, minimize, and mitigate the
  impact to the relevant threatened or endangered species or critical habitat; (3) a plan for ensuring that funding is available to conduct any required monitoring and
  mitigation, if applicable; (4) a summary of the alternative actions to the taking or destruction of critical habitat
  that the applicant considered and the reasons that these alternatives were not selected,
  if applicable; (5) the name or names and obligations and responsibilities of the person or persons that
  will be involved in the proposed taking or destruction of critical habitat; and (6) any additional information that the Secretary may require. (i) Permit fees. (1) Fees to be charged to a person applying to take a threatened or endangered species
  under this section shall be: (A) to take for scientific purposes, to enhance the propagation or survival of the species,
  noncommercial cultural or ceremonial purposes, or for educational purposes or special
  purposes consistent with the federal Endangered Species Act, $50.00; (B) to take for a zoological or botanical exhibition, $250.00 for each listed wildlife
  or wild plant taken up to a maximum of $25,000.00; and (C) for an incidental taking, $250.00 for each listed wildlife or wild plant taken up
  to a maximum of $25,000.00. (2) The Secretary may require the implementation of mitigation strategies and may collect
  mitigation funds, in addition to the permit fees, in order to mitigate the impacts
  of a taking or the destruction of or adverse impact on critical habitat. Mitigation
  may include: (A) a requirement to rectify the taking or adverse impact or to reduce the adverse impact
  over time; (B) a requirement to manage or restore land within the area of the proposed activity or
  in an area outside the proposed area as habitat for the threatened or endangered species;
  or (C) compensation, including payment into the Threatened and Endangered Species Fund for
  the uses of that Fund, provided that any payment is commensurate with the taking or
  adverse impact proposed. (3) Fees and mitigation payments collected under this subsection and interest on fees
  and mitigation payments shall be deposited in the Threatened and Endangered Species
  Fund and shall be used solely for expenditures of the Department of Fish and Wildlife
  related to threatened and endangered species. Expenditures may be made for monitoring,
  restoration, conservation, recovery, and the acquisition of property interests and
  other purposes consistent with this chapter. Where practical, the fees collected for
  takings shall be devoted to the conservation or recovery of the taken species or its
  habitat. Interest accrued on the Fund shall be credited to the Fund. (j) Permit term. A permit issued under this section shall be valid for the period of time specified
  in the permit, not to exceed five years. A permit issued under this section may be
  renewed upon application to the Secretary. (k) Public notice. Except for threatened and endangered species listed by the Secretary in accordance
  with subsection 5410(b) of this title, prior to issuing a permit for an incidental taking and prior to the initial issuance
  or amendment of a general permit under this section, the Secretary shall provide for
  public notice of not fewer than 30 days opportunity for written comment and opportunity
  to request a public informational hearing. Except for threatened and endangered species
  listed by the Secretary in accordance with subsection 5410(b) of this title, the Secretary shall post permit applications, permit decisions, and the initial
  or amended general permits on the website of the Agency of Natural Resources. Except
  for threatened and endangered species listed by the Secretary in accordance with subsection 5410(b) of this title, the Secretary also shall provide notice to interested persons who request notice
  of permit applications, permit decisions, and proposed general permits or proposed
  amendments to general permits. (l) General permits. (1) The Secretary may issue general permits for activities that will not affect the continued
  survival or recovery of a threatened or endangered species. (2) A general permit issued under this chapter shall contain those terms and conditions
  necessary to ensure compliance with the provisions of this statute. (3) These terms and conditions may include the implementation of best management practices
  and the adoption of specific mitigation measures and required surveying, monitoring,
  and reporting. (4) The Secretary may issue a general permit to take a threatened or endangered species
  or destroy or adversely impact critical habitat only if an activity or class of activities
  satisfies one or more of the following criteria: (A) the taking of a threatened or endangered species or the destruction of or adverse
  impact on critical habitat is necessary to address an imminent risk to human health; (B) a proposed taking of a threatened or endangered species or the destruction of or adverse
  impact on critical habitat would enhance the overall long-term survival of the species;
  or (C) the Secretary has approved best management practices that are designed, when applied,
  to minimize to the greatest extent possible the taking of a threatened or endangered
  species or the destruction of or adverse impact on critical habitat. (5) On or before September 1, 2017, the Secretary shall issue a general permit for vegetation
  management and operational and maintenance activities conducted by a utility. The
  general permit shall have a five-year term. A one-time application for coverage by
  a utility shall be made for activities authorized by the general permit, and coverage
  under the general permit shall be for the term of the general permit. Until the general
  permit has been issued, no critical habitat designation for wild plants shall be made
  in a utility right-of-way. As used in this subdivision (5), “utility” means an electric
  company, telecommunication company, pipeline operator, or railroad company. (6) Except for threatened and endangered species listed by the Secretary in accordance
  with subsection 5410(b) of this title, prior to issuing an initial or amended general permit under this subsection, the
  Secretary shall: (A) post a draft of the general permit on the Agency website; (B) provide public notice of at least 30 days; and (C) provide for written comments or a public hearing, or both. (7) For applications for coverage under the terms of an issued general permit, the applicant
  shall provide notice on a form provided by the Secretary. Except for threatened and
  endangered species listed by the Secretary in accordance with subsection 5410(b) of this title, the Secretary shall post notice of the application on the Agency website and shall
  provide an opportunity for written comment, regarding whether the application complies
  with the terms and conditions of the general permit, for 10 days following receipt
  of the application. (8) The Secretary may require any applicant for coverage under a general permit to submit
  additional information that the Secretary considers necessary and may refuse to approve
  coverage under the terms of a general permit until the information is furnished and
  evaluated. (9) The Secretary may require any applicant for coverage under a general permit to seek
  an individual permit under this section if the applicant does not qualify for coverage. (10) The Secretary may require a person operating under a general permit issued under this
  section to obtain an individual permit under this section if the person proposes to
  destroy or adversely impact critical habitat that was designated under section 5402a of this title after issuance of the general permit, unless existing best management practices approved
  under the general permit adequately protect the critical habitat or have been amended
  to do so prior to the critical habitat designation pursuant to section 5402a of this title. (Added 1981, No. 188 (Adj. Sess.), § 2; amended 1985, No. 192 (Adj. Sess.), §§ 3, 4; 2003, No. 163 (Adj. Sess.), § 17; 2011, No. 128 (Adj. Sess.), § 35; 2013, No. 116 (Adj. Sess.), § 12; 2015, No. 145 (Adj. Sess.), § 27; 2025, No. 47, § 17, eff. July 1, 2025.)