CHAPTER Fis 1000 CONSERVATION OF THREATENED AND ENDANGERED
SPECIES
PART Fis 1001 PROTECTED SPECIES
Fis
1001.01 Endangered.
(a) Under the authority of RSA 212-A: 6, IV(a), the following
species, listed by common and scientific names, shall be considered endangered
throughout its entire range within the state:
Table 1000.1
Endangered Species
Common Name |
Scientific Name |
Dwarf wedgemussel |
Alasmidonta
heterodon |
Brook floater
mussel |
Alasmidonta
varicosa |
Cobblestone tiger
beetle |
Cicindela
marginipennis |
Puritan tiger
beetle |
Cicindela
puritana |
Frosted elfin
butterfly |
Callophrys
irus |
Karner blue
butterfly |
Lycaeides
melissa samuelis |
White Mountain
fritillary |
Boloria
titania montinus |
Persius duskywing skipper |
Erynnis persius |
Rusty patched
bumblebee |
Bombus affinis |
American brook
lamprey |
Lethenteron
appendix |
Shortnose sturgeon |
Acipenser brevirostrum |
Marbled salamander |
Ambystoma opacum |
Blanding’s turtle |
Emydoidea
blandingii |
Eastern box turtle |
Terrapene carolina |
Eastern hognose
snake |
Heterodon
platirhinos |
Timber rattlesnake |
Crotalus horridus |
Northern harrier |
Circus cyaneus |
Golden eagle |
Aquila chrysaetos |
Common nighthawk |
Chordeiles
minor |
Piping plover |
Charadrius melodus |
Upland sandpiper |
Bartramia
longicauda |
Roseate tern |
Sterna dougallii |
Least tern |
Sterna antillarum |
Eastern
small-footed bat |
Myotis leibii |
Little brown bat |
Myotis lucifugus |
Northern
long-eared bat |
Myotis septentrionalis |
Tri-colored bat |
Perimyotis
subflavus |
New England
cottontail |
Sylvilagus transitionalis |
Canada lynx |
Lynx canadensis |
Eastern wolf |
Canis lupus |
Source. #1567, eff 4-28-80; ss by #2079, eff 7-5-82-;
ss by #2839, eff 8-31-84; ss by #4274, eff 6-29-87 EXPIRED 6-29-93
New. #5845. eff 6-22-94; ss by #7309, INTERIM, eff
6-21-00, EXPIRES: 10-19-00
New. #7379, eff 10-21-00; ss by #9278, eff 9-20-08;
ss by #12161, eff 4-18-17; ss by #13313, eff 2-3-22
Fis
1001.02 Threatened.
(a) Under the authority of RSA 212-A:6, IV(a), the following
species, listed by common and scientific names in Table 1000.2 shall be
considered threatened throughout its entire range within the state:
Table 1000.2 Threatened Species
Common Name |
Scientific Name |
Eastern pond
mussel |
Ligumia nasuta |
Pine pinion moth |
Lithophane lepida lepida |
Ringed boghaunter |
Williamsonia lintneri |
White Mountain
arctic |
Oeneis
melissa semidea |
Hessel's
hairstreak |
Callophrys
hesseli |
Bridle shiner |
Notropis
bifrenatus |
Atlantic sturgeon |
Acipenser oxyrinchus |
Round whitefish |
Prosopium
cylindraceum |
Fowler's toad |
Anaxyrus
fowleri |
Spotted turtle |
Clemmys
guttata |
Black racer |
Coluber
constrictor |
Pied-billed grebe |
Podilymbus
podiceps |
Common loon |
Gavia immer |
Peregrine falcon |
Falco
peregrinus |
Common tern |
Sterna hirundo |
Red knot |
Calidris canutus |
Cliff swallow |
Petrochelidon pyrrhonota |
Purple martin |
Progne subis |
Cerulean warbler |
Setophaga
cerulea |
Eastern meadowlark |
Sturnella magna |
Grasshopper
Sparrow |
Ammodramus
savannarum |
Source. #1567, eff 4-28-80; ss by #2079, eff 7-5-82;
ss by #2839, eff 8-31-84; ss by #4274, eff 6-29-87 EXPIRED 6-29-93
New. #5845 eff 6-22-94; ss by #7309, INTERIM, eff 6-21-00,
EXPIRES: 10-19-00
New. #7379, eff 10-21-00; ss by #9278, eff 9-20-08;
ss by #12161, eff 4-18-17; ss by #13313, eff 2-3-22
Fis 1001.03 Scientific Permit to Take Endangered or
Threatened Wildlife.
(a) For the purpose of this section, "scientific
purposes" means the identification, study, inventory, distribution,
classification, restoration, and management of endangered wildlife, threatened
wildlife, or both.
(b) In accordance with RSA 212-A:7, II, the
executive director shall issue a scientific permit to take endangered wildlife
species as specified in Fis 1001.01 or threatened wildlife species as specified
in Fis l001.02 for scientific purposes based upon a finding that the activity:
(1) Will not diminish the viability of the
population of the species;
(2) Utilizes methods which minimize the number of individuals to be
taken; and
(3) Will provide the department with information or data useful for
the management of the species.
(c) Applicants for a permit to take for
scientific purposes endangered wildlife, threatened wildlife, or both shall make a written
request to the executive director that includes the following information:
(1) Name, address, telephone number, and email contact
information for the applicant;
(2) The organization, agency, or institution with
which the applicant is affiliated, if any;
(3) Scope of the proposed activity and reason for proposed
scientific study;
(4) The species to be taken and methods of take;
(5) The maximum number of individuals of each species to be taken;
(6) The location(s) from which the taking shall
occur; and
(7) The intended disposition of all specimens taken.
(d) A scientific permit to take endangered
wildlife, threatened wildlife, or both shall be a letter of authorization from the executive
director that includes the following:
(1) The name and address of the permittee;
(2) The species authorized to be taken;
(3) The number of individuals of each species authorized;
(4) The disposition of the specimens;
(5) The time period during which the permit shall
be valid;
(6) Methods of taking;
(7) Other requirements as necessary to protect the species; and
(8) The signature of the executive director.
(e) By January 31 of the year following the
calendar year for which they hold a permit, permittees shall file a written progress report of
the study with the executive director which includes:
(1) The species;
(2) The number of individuals taken;
(3) The date and location where species were taken;
(4) The disposition of the individuals; and
(5) Other results of the study, including a final
report of findings upon completion of the research and other data as required
by the permit.
Source. #4274, eff 6-29-87 EXPIRED 6-29-93
New. #5845 eff 6-22-94; ss by #7309, INTERIM, eff 6-21-00,
EXPIRES: 10-19-00
New. #7379, eff 10-21-00; ss by #9278, eff 9-20-08;
ss by #12161, eff 4-18-17; ss by #13313, eff 2-3-22
Fis 1001.04 Research Notification.
(a) Any individual, agency, organization, or
institution intending to undertake field research in New Hampshire on any
wildlife listed as endangered as specified in Fis 1001.01 or threatened as
specified in Fis 1001.02 which does not involve capture or taking of specimens shall specify in writing to
the executive director the species, nature, location, and time
period of such research, and the names of the principal investigator(s).
(b) The principal investigator(s) shall file with the executive director an
annual summary of progress by January 31 of the year following the calendar
year for which they hold a permit and a final report of findings upon
completion of the research.
Source. #4274, eff 6-29-87 EXPIRED 6-29-93
New. #5845, eff 6-22-94; ss by #7309, INTERIM, eff
6-21-00, EXPIRES: 10-19-00
New. #7379, eff 10-21-00; ss by #9278, eff 9-20-08;
ss by #12161, eff 4-18-17; ss by #13313, eff 2-3-22
Fis 1001.05 Bats in Structures.
(a) Except as set forth in this section, no person shall
take a bat listed in Fis 1001.01 or Fis 1001.02.
(b) Between the dates of May 15 and August 15, inclusive,
in any year, no bat listed in Fis 1001.01 or Fis 1001.02 shall be removed or
excluded from any structure occupied by humans or livestock unless:
(1) Action is taken pursuant to (c) below;
(2) Between the dates of May 15 and August 15,
inclusive, in any year a licensed wildlife control operator reports in writing
to the department that no bat pups were present in the structure at the time
removal or exclusion techniques were employed; or
(3) Between the dates of August 1 and August 15,
inclusive, in any year a licensed wildlife control operator reports in writing
to the department that bat pups were observed flying for 2 weeks or more prior to
the time removal or exclusion techniques were employed.
(c) Pursuant to RSA 212-A:7, II and 50 C.F.R.
Part 17.40(o), individual bats, including those listed in Fis 1001.01 and Fis
1001.02 above, may be removed or excluded at any time from any man-made
structure in order to:
(1) Protect the health and safety of the
occupant(s);
(2) Prevent the transmission of disease; or
(3) To comply with the requirements of 21 U.S.C.
Section 331, et. seq. and regulations at 21 C.F.R. Part 507.17 and 507.19
designed to prevent the contamination of food or agricultural products meant
for human or animal consumption.
(d) Unless acting pursuant to Fis 1001.05 (c),
bats shall be controlled exclusively by exclusion techniques.
(e) All persons acting to exclude bats shall do
so in accordance with the publication “Acceptable Management Practices for Bat
Control Activities in Structures ‐ A Guide for Nuisance
Wildlife Control Operators”, dated April 1, 2015, available as noted in
Appendix A.
(f) Any action taken by a wildlife control
operator licensed pursuant to Fis 308 on a bat shall be reported to the
department as required by Fis 308.06, including information as to whether the
specimen was transmitted to the department of health and human services for
testing, and the result of the test.
Source. #12161, eff 4-18-17; ss by #13313, eff 2-3-22
Fis
1001.05 Bats in Structures.
(a) Except as set forth in this section, no person shall take a bat listed
in Fis 1001.01 or Fis 1001.02.
(b) Between the dates of May 15 and August 15, inclusive, in any year, no
bat listed in Fis 1001.01 or Fis 1001.02 shall be removed or excluded from any
structure occupied by humans or livestock unless:
(1) Action is taken
pursuant to (c) below;
(2) Between the dates of
May 15 and August 15, inclusive, in any year a licensed wildlife control
operator reports in writing to the department that no bat pups were present in
the structure at the time removal or exclusion techniques were employed; or
(3) Between the dates of
August 1 and August 15, inclusive, in any year a licensed wildlife control
operator reports in writing to the department that bat pups were observed
flying for 2 weeks or more prior to the time removal or exclusion
techniques were employed.
(c) Pursuant to RSA 212-A:7, II and 50 C.F.R.
Part 17.40(o), individual bats, including those listed in Fis 1001.01 and Fis
1001.02 above, may be removed or excluded at any time from any
man-made structure in order to:
(1) Protect the health and
safety of the occupant(s);
(2) Prevent the transmission
of disease; or
(3) To comply with the
requirements of 21 U.S.C. Section 331, et. seq. and regulations at 21 C.F.R.
Part 507.17 and 507.19 designed to prevent the contamination of food or
agricultural products meant for human or animal consumption.
(d) Unless acting pursuant
to Fis 1001.05 (c), bats shall be controlled exclusively by exclusion
techniques.
(e) All persons acting to exclude bats shall do
so in accordance with the publication “Acceptable Management Practices for Bat Control Activities in
Structures ‐ A Guide for Nuisance Wildlife Control Operators”,
dated April 1, 2015, available as noted in Appendix A.
(f) Any action taken by a wildlife control
operator licensed pursuant to Fis 308 on a bat shall be reported to the department
as required by Fis 308.06, including information as to whether the specimen was
transmitted to the department of health and human services for testing, and the
result of the test.
PART Fis 1002
DEFINITIONS
Fis
1002.01 “Action area” means all areas to
be affected directly or indirectly by the proposed action under review, and not
merely the immediate area actually disturbed or
altered by the proposed action.
Source. #13313, eff 2-3-22
Fis
1002.02 “Agent” means a person who has
been duly authorized in writing by an applicant, owner, or permit holder, as
applicable, to interact with the department regarding a proposed action,
approval, permit, or other authorization under review.
Source. #13313, eff 2-3-22
Fis
1002.03 “Applicant” means any person or
legal entity who seeks a permit, approval, or other written authorization from
a state agency as a prerequisite to conducting a proposed action.
Source. #13313, eff 2-3-22
Fis
1002.04 “Appreciably jeopardize the continued existence of” means to engage in an action that reasonably
would be expected, directly or indirectly, to appreciably 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.
Source. #13313, eff 2-3-22
Fis
1002.05 “Avoid and minimize harm” means
to avoid harm to the maximum extent practicable and then minimize any harm that
cannot be avoided.
Source. #13313, eff 2-3-22
Fis
1002.06
“Conservation measures” means actions which serve to avoid, minimize, or
mitigate potential adverse impacts to, and to promote the recovery of or
enhance the survival of, threatened or endangered species.
Source. #13313, eff 2-3-22
Fis 1002.07 “Consultation” means the review by department
staff of a proposed action in order to evaluate
potential adverse impacts of the proposed action to threatened and endangered
species, and the need for conservation measures to avoid, minimize, or
mitigate such adverse impacts.
Source. #13313, eff 2-3-22
Fis
1002.08
“Department” means the New Hampshire fish and game department.
Source. #13313, eff 2-3-22
Fis
1002.09 “Habitat determined to be critical” means a
geographical area of land or waters designated by the executive director of the
department that currently provides or historically provided physical or
biological features essential to the conservation of an endangered or
threatened species.
Source. #13313, eff 2-3-22
Fis
1002.10 “Harm” means any act which kills
or injures individuals of a threatened or endangered species, or which acts to significantly adversely modify or degrade 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.
Source. #13313, eff 2-3-22
Fis
1002.11 “NHB DataCheck tool”
means an online data screening
tool provided by the department of environmental services and the natural
heritage bureau of the department of natural and cultural resources where the public can screen for known
locations of rare species and exemplary natural communities.
Source. #13313, eff 2-3-22
Fis 1002.12 “Owner” means the person or legal entity who
holds record title to the real property on which the work that is the subject
of the action, approval, permit, or other written authorization under review
has occurred or is proposed to occur.
Fis 1002.13 “Project parcel” means the
real property of an owner on which the work that is the subject of the proposed
action, approval, permit, or other written authorization under review has
occurred or is proposed to occur.
Source. #13313, eff 2-3-22
Fis 1002.14 “Proposed action” means any
proposed alteration, disturbance, or modification to land, waters, or
structures that requires a state agency permit, approval, or other written
authorization.
Source. #13313, eff 2-3-22
PART Fis 1003 STANDARDS APPLICABLE TO ALL PROJECTS
Fis
1003.01 Avoidance of Harm. Pursuant to RSA 212-A:9, III, all proposed
actions shall be designed to avoid and minimize harm to
threatened and endangered species and habitat determined to be critical,
including any proposed mitigation of harm or other potential adverse impacts to
wildlife.
Source. #13313, eff 2-3-22
Fis 1003.02 General Requirements.
(a)
All personnel
involved in implementation of a proposed action shall comply with all terms,
conditions, and stipulations in regulatory permits and other written project
authorizations to eliminate or reduce potential adverse impacts to endangered
and threatened species.
(b)
All permit holders shall be under a continuing duty to report the take
of any threatened or endangered species, regardless
of the cause, and regardless of whether the take was intentional, to the NH
fish and game department immediately at NHFGreview@wildlife.nh.gov, or by phone
at 603-271-2461.
(c)
Following a report of
a take,
all permit holders shall be under a continuing duty to preserve any remains of
a threatened and endangered species, unless otherwise instructed by staff of
the department.
(d)
All permit holders
shall permit staff of the department to access a permitted site in order to inspect implementation of conservation measures
and
investigate reports of sightings, a take, or other adverse impact
to threatened and endangered species.
(e)
Any permit
condition(s) or other requirement(s) relative to implementing and maintaining
permanent methods of protecting threatened and endangered species shall survive
the expiration of the underlying permit and any suspension, revocation, or
refusal to renew the underlying permit.
(f)
The
consideration or grant of a permit by a referring state agency, whether or not in accordance with any recommendations made
by the department, shall not limit the department in the exercise of any
authority granted to it by law.
Source. #13313, eff 2-3-22
PART Fis 1004 CONSULTATION
Fis 1004.01 Consultation.
(a) Pursuant
to RSA 212-A: 9, III, an applicant, as herein defined, shall request site
specific consultation with the department if required by a state agency as part
of a request for issuance of a permit, approval, or other written authorization
from that state agency.
(b)
The requirements
of Fis 1004 shall not apply to proposed actions authorized by a state agency
through a statutory permit by notification, permit by rule, permit by notification,
routine roadway registration, docking structure registration, or conditional
authorization by rule.
(c)
Notwithstanding the foregoing, nothing set forth in Fis 1004 shall act
to waive any requirements of RSA 212-A:9, III or any rule duly enacted by
another state agency.
Source. #13313, eff 2-3-22
Fis 1004.02 Calculation of Time. Any deadline or time period
established in these rules shall be computed in accordance with RSA 21:35,
provided that a deadline or time period established by statute shall be
extended only if the statute expressly provides for such an extension.
Fis 1004.03 Information Required for Consultation.
(a)
In all cases where consultation is required, all information shall be
provided to the department in electronic format at NHFGreview@wildlife.nh.gov , or in
paper format at:
NH Fish and
Game Department
Attn.
Wildlife Division, Nongame Program
11 Hazen
Drive
Concord, N.H.
03301
(b)
In all communications, the NHB DataCheck tool
results letter number shall be included in the email subject line and
documents.
(c)
The following information shall be provided to the department:
(1) A copy of the
department of natural and cultural resources NHB DataCheck tool results
letter, dated within one year of the date of the consultation request, and
which includes the DataCheck tool results letter number;
(2) The applicant's full name;
(3) The applicant’s mailing address;
(4) The applicant’s telephone number and email address to be used
for the purpose of contact;
(5) If the applicant is a corporation, firm,
partnership, association, institution, or public or private agency, the name,
mailing address, and email address of the person who will respond to requests
for information on behalf of the applicant;
(6) The name, mailing address, and email address
of any person acting as an agent of the applicant, or any consultant who will submit
information to the department on behalf of the applicant;
(7) Description of the proposed action;
(8) Description of the project parcel by
reference to street address and town, and, if available, a geographical
information system defined project boundary;
(9) A listing of any state or federal permits
which have been applied for, have been granted, or which will be necessary for the
proposed action to proceed;
(10) The current condition of the action area
prior to any proposed modifications, including a description of known or
discernible actions within the preceding 24 months that have altered the site, including but not
limited to, timber harvests, significant impact from storms, removal of gravel
or stone, or addition or removal of structures;
(11) Any habitat features supporting or that could
support threatened and endangered species that have been identified; and
(12) A description of any conservation measures
proposed by the applicant to avoid, minimize, or mitigate potential harm to threatened and endangered
species and habitat determined to be critical, including but not limited to:
a. Design modifications to proposed actions to
protect species from harm.
b. Modifications to proposed actions such as
alteration of the timing of proposed actions to protect species from harm;
c. Design crossing structures to maintain and
enhance habitat quality and accommodate movement of species;
d. Education and training for construction
personnel as to what construction activities have the potential to cause
adverse impacts to species;
e. Signage to identify specific locations where
construction activities must avoid potential adverse impacts to species;
f. Continued research and monitoring of
identified species;
g. Protection or restoration of wildlife corridors;
h. Maintenance,
enhancement, or protection of habitat buffer areas; and
i. Habitat protection, management, or restoration.
(d)
An applicant seeking consultation to meet permit requirements under Env-Wt 311, Env-Wq 1406.06, or Env-Wq 1503.05, shall provide the following additional
information to the department to initiate consultation:
(1) A topographic map identifying
the action area at a scale of 1:24,000 or closer, and which shows property lines and
the limits of proposed disturbance;
(2) An aerial photograph identifying the current
condition of the action area at a scale of 1:24,000 or closer and which shows
property lines and the limits of proposed disturbance;
(3) Site photographs with dates and a photograph location plan,
showing existing conditions, habitat features, and possible locations of
identified threatened and endangered species, if known;
(4) Project site plan sheets showing the area of
proposed disturbance and location of any proposed new or modified structures;
(5) Any reports created to assess the site, including but not
limited to wetland assessments, vernal pool surveys, or other site visit
observations; and
(6) Any other available information, from whatever
source,
that describe the potential impacts of the proposed action on listed species or
habitat.
(e)
Consultation sought for an “after the fact” permit shall provide the
following additional information to the department to initiate consultation:
(1) If pursuant to Env-Wt
311.12:
a. A restoration plan for all impacted
jurisdictional areas to be restored, prepared by a licensed professional, with a wetland
delineation stamped by a certified wetland scientist;
b. A monitoring plan designed to ensure that the restoration is successful; and
c. An explanation as to why work was performed prior to having a permit; or
(2) If pursuant to Env-Wq
1503.31:
a. A current conditions plan that
clearly identifies all disturbances and construction performed without a
permit;
b. A description of all prior disturbances on the property; and
c. An explanation of why work was performed prior to having a permit.
Source. #13313, eff 2-3-22
Fis 1004.04 Signatures and Certifications Required.
(a)
Each document, or group of documents intended as a single submission,
that is submitted to the department, including but not limited to applications,
requests, and reports, shall:
(1) If submitted in paper format, be signed and dated by the applicant, owner or the agent of
either, and show the typed or printed name and title, if applicable, of the
individual who signed; or
(2) If submitted in electronic format, be
electronically signed and dated by the applicant,
owner or the agent of either, and show the name and title, if applicable, of
the individual who signed.
(b)
Each physical or electronic signature required by (a), above, shall
constitute certification by the signer that:
(1) The information contained in or otherwise
submitted with the document is true, complete, and not misleading to the best
of the signer’s knowledge and belief; and
(2) The signer understands that the submission of
false, incomplete, or misleading information shall constitute grounds,
pursuant to Fis 1004.13, for the department to:
a. Suspend consultation
pending submission of true, complete, and not misleading information;
b. Terminate consultation;
c. Withdraw any recommendations made to the
referring state agency under this part; or
d. Report the
suspension, termination, or withdrawal of recommendations, and the full
circumstances of the submission, to the referring state agency for action in
the pending or completed request for a permit or other action.
Source. #13313, eff 2-3-22
Fis 1004.05 Processing of Requests for Consultation.
(a)
The department shall perform an initial review of the material submitted
in support of a request for consultation for completeness within 30 days of its
receipt.
(b)
A complete request for consultation shall consist of the following:
(1) The plans and other information specified in
Fis 1004.03, as applicable;
(2) If the applicant has authorized another to act
as the applicant’s agent, a copy of the written authorization; and
(3) If the applicant is not the owner and the
owner has authorized another to act as the owner’s agent, a copy of the written
authorization.
(c)
If the application does not contain everything necessary to commence
consultation, the department shall use the contact information submitted
pursuant to Fis 1004.03(c) to notify the applicant, or its authorized agent of
what required components are missing.
(d)
Notice to an applicant or an authorized agent via telephone, electronic
mail, or an unreturned letter sent to the address on the checklist shall
suffice as notice that a submission is incomplete.
(e)
Upon notifying an applicant that the application is incomplete, the
department shall suspend further processing of the application pending receipt
of the information missing from the application.
(f)
No portion of the time between the date a notice is provided pursuant to
(d) above and the date the applicant submits the missing components shall be
included in computing the time limits specified in RSA 541-A:29 for processing
the application.
Source. #13313, eff 2-3-22
Fis 1004.06 Requests for Additional Information.
(a)
If additional information is required for the department to perform its
review, the department shall notify the applicant in writing of the additional
information needed, which might include, but is not limited to:
(1) Full size paper format copies of reports,
documents, or plan sets, as needed to fully understand the documents at a full
size scale;
(2) The potential need for assessment of habitat
features supporting threatened and endangered species that have been
identified, or the conservation measures proposed by the applicant, by an
individual who demonstrates adequate training and experience with the species
identified to offer a professional opinion on these issues to the department;
or
(3) The potential need for specialized targeted
surveys of threatened and endangered species within the project parcel or other
portion of the action area to which the applicant or the public has a right of
access, by an individual who demonstrates specialized experience with survey
methodology around the species identified.
(b)
The notice provided pursuant to (a) above shall include the deadline for
submitting the required additional information, established based on the type
and volume of the required additional information.
(c)
The department shall provide the notice specified in (a) above within 30
days of the receipt of a request for consultation, excluding any time between a
notice provided pursuant to Fis 1004.05(d) and the date the applicant submits
the missing components.
Source. #13313, eff 2-3-22
Fis 1004.07 Response to Notice of Missing Information
or Request for Additional Information.
In response to any notice of missing information, or to any request for
additional information under this part, the applicant shall:
(a)
Specifically identify how each request or comment has been addressed;
(b)
If revised plans and specifications are being submitted, call attention
to the changes on the revised plans and specifications and add a revision date
to each page that has been changed;
(c)
Sign the submittal in accordance with Fis 1004.05; and
(d)
Send a copy of the response, with a cover letter stating the reason(s)
for providing the additional information, to the referring state agency for
inclusion in the record of the permit proceeding.
Source. #13313, eff 2-3-22
Fis 1004.08 Revisions and Updates to Requests for
Consultation.
(a)
Prior to the provision of recommendations to the referring state agency,
the applicant may substitute a revised plan for the plan submitted with the
referral, provided that the applicant consents to a reasonable extension of
time to permit the department to review any significant alterations to the
scope or nature of the project.
(b)
Once the process of consultation is initiated, the applicant shall be
under a continuing duty to provide the department with updates to any report or
other information from any source pertaining to:
(1) Observed occurrences of threatened and
endangered species on the site;
(2) Observed impacts to habitat or travel
corridors that potentially impact the identified species;
(3) All comments received from the local
conservation commission, local planning board, local river management advisory
committee, or other agency reviewing the proposal if the comment pertains to
impacts upon threatened and endangered species;
and
(4) Project
design changes which might result in potential impacts to
threatened and endangered species, whether suggested to avoid harm to the
species, or which could serve to increase the potential of adverse impacts to
species.
(c)
If additional information is provided directly to the department during
the process of consultation, the applicant shall also provide a copy to the
state permitting agency, if applicable, for inclusion into the record of the
pending permit application.
Source. #13313, eff 2-3-22
Fis 1004.09 Failure to Provide Information. The department shall not deliver
recommendations to the applicant or the referring state agency if:
(a)
The applicant fails to provide the complete set of information as
requested in the notice sent pursuant to Fis 1004.05; or
(b)
The applicant fails to file a complete response to a request for
additional information as specified in the request sent pursuant to Fis
1004.06, unless the partial response:
(1) Explains why the missing information is
unavailable or cannot be provided within the specified time; and
(2) Agrees in writing to extend the time to
complete the department’s review thereof, and the decision of the referring
agency on the underlying permit application, until a reasonable time after the
requested information is in fact provided to the department.
Source. #13313, eff 2-3-22
Fis 1004.10 Requests to Extend Deadlines.
(a)
An applicant may request an extension of any deadline to provide
information to the department.
(b)
Each request for a deadline extension shall be filed in writing, signed
as required by Fis 1004.04, and contain the following information:
(1) The name, mailing address, and daytime
telephone number of the requestor and, if available, the requestor’s e-mail address;
(2) A brief description of the application to
which the request relates, such as project name and town;
(3) The NHB DataCheck
tool results letter number;
(4) The date of the notice of incompleteness or
request for additional information in which the deadline for which an extension
is being sought was established;
(5) The deadline that was established;
(6) A full explanation of why an extension is needed;
(7) If the extension is not needed for all of the missing components or additional information, the
specific item(s) to which the request applies; and
(8) The alternative deadline proposed by the
requestor.
(c)
If the deadline extension does not apply to all of
the missing components or additional information, the applicant shall submit
the item(s) to which the request does not apply by the deadline originally
established.
(d)
The department shall extend a deadline for completing an application or
submitting additional information if a complete request for deadline extension
was submitted prior to the established deadline, and:
(1) In order to submit the missing component(s)
or additional information, the applicant requires information from a third
party not under the applicant’s control, and the applicant has not received the
information despite making diligent efforts to obtain it; or
(2) The applicant has otherwise been prevented by
circumstances beyond the applicant’s control from obtaining or preparing the
missing component(s) or additional information.
(e)
A deadline shall not be extended for more than one year past the
original date established in the notice of incompleteness or request for
additional information.
(f)
The department shall deny a request for a deadline extension if:
(1) The request for extension is not submitted
prior to the deadline;
(2)
The applicant is unwilling to submit the information that has been
requested; or
(3) The alternative deadline requested is a date
that is more than one year past the original date established by the department
for submission of the information.
(g)
The department shall notify the person requesting the deadline extension
of its decision in writing, setting forth:
(1) If the request is denied, the department
shall identify the specific reason(s) for the denial; or
(2) If the request is granted, the department
shall establish the new deadline in the notice.
Source. #13313, eff 2-3-22
Fis 1004.11 Department Consultation Response.
(a)
The department shall provide recommendations in writing to the applicant
evaluating the adequacy of all conservation measures proposed by the applicant
within the 60 calendar days following receipt of a request for consultation,
provided that no portion of the following time periods are included in
computing the 60-day review period:
(1) The time between the date a notice is
provided pursuant to Fis 1004.05(d) above and the date the applicant submits
the identified missing components; and
(2) The time between the date a request for more
information is provided pursuant to Fis 1004.06(a) above and the date the
applicant submits a complete response to the request for more information.
(b)
To the extent that the proposed actions, inclusive of proposed
conservation measures, appreciably jeopardize the continued existence of
threatened or endangered species, the department shall so indicate in writing
to the applicant and the referring state agency, giving specific reasons for
such findings.
Source. #13313, eff 2-3-22
Fis 1004.12 Further Consultation.
(a)
The applicant may request further consultation with the department in
writing within 10 business days following receipt of the written
recommendations provided in Fis 1004.11(a).
(b)
The state agency engaged in permitting the proposed action may request
further consultation with the department in writing within 10 business days
following receipt of the written recommendations provided in Fis 1004.11(a).
(c)
A request for further consultation by either the applicant or the
referring state agency shall be deemed a request for a 30-day extension of the
60-day deadline provided in Fis 1004.11(a).
(d)
At any time during the extension period, or any further extension
thereof requested by the applicant, the department shall modify its comments
and recommendations as necessary, in whole or in part, following receipt of new or
additional information from either the applicant or the state agency engaged in
permitting the proposed action.
(e)
At any time during the extension period, or any further extension
thereof requested by the applicant, the department shall advise the referring
state agency that no modifications to comments or recommendations shall be
offered if it determines that the requested changes do not avoid and minimize
harm to the identified species or habitat under review.
Source. #13313, eff 2-3-22
Fis 1004.13 Suspension or Termination of Consultation
and Withdrawal of Recommendations.
(a)
Upon a determination that information material to consultation was
false, incomplete, or misleading, the department shall suspend or terminate
consultation as set out in (b) and (c) below, or
withdraw department recommendations as set out in (g) below.
(b)
The department shall suspend consultation if the department determines
that:
(1) The deficiencies
can be corrected by the submission of true, complete, and not misleading information; and
(2) The deficient information was submitted inadvertently or
negligently.
(c)
The department shall terminate consultation and take no further action
on the request for consultation if the department determines that the applicant
submitted deficient information with an intent to mislead or to avoid
conservation measures recommended by the department.
(d)
A notice of suspension pursuant to (b) above shall specify:
(1) The deficient information;
(2) The reason(s) for the department’s decision;
and
(3) A reasonable time in which the applicant may
correct the deficiencies.
(e)
Upon receipt of the submission of true, complete, and not misleading
information pursuant to the notice provided under (d) above, the suspension
shall be lifted, provided that the applicant consents to a reasonable extension
of time to permit the department to review the newly submitted information.
(f)
A notice of termination pursuant to (c) above shall specify the
reason(s) for the department’s decision.
(g)
The department shall withdraw recommendations if it determines after
making final recommendations pursuant to Fis 1004.11 that the applicant
submitted false, incomplete, or misleading information material to the
department’s recommendations.
(h)
A notice of withdrawal of recommendations pursuant to (g) above shall
specify:
(1) The deficient information;
(2) The reason(s) for the department’s decision;
and
(3) A reasonable time in which the applicant can
submit true, complete, and not misleading information with a new request for
consultation.
(i) Whenever the department issues a notice of
suspension, notice of termination, or notice of withdrawal, the department
shall provide a copy of the notice and any supporting documentation to the
referring state agency for consideration in the pending or completed request
for a permit or other action.
Source.
#13313, eff 2-3-22
PART Fis 1005 ADMINISTRATIVE REVIEW OF RECOMMENDATIONS
Fis
1005.01 Request to Commence an Adjudicative
Proceeding.
(a) Any person who is aggrieved by a
recommendation of the department under these rules may request the commencement of an adjudicative proceeding
within 30 days of receipt of written notice of the recommendation, or any
modification thereof, by letter addressed to the executive director at:
NH Fish and Game Department
Attn: Executive Director
11 Hazen Drive
Concord, NH 03301
(b) The request for an adjudicative proceeding
shall contain the following information:
(1) The name of the claimant who is aggrieved by the decision;
(2) A statement of the claimant’s status as an
aggrieved party;
(3) A
concise description of the reason or
reasons why the decision is believed to be in error;
(4) A current residential address; and
(5) A current telephone number and email address,
if available.
(c) Persons who fail to file a letter requesting
the commencement of an adjudicative proceeding within the 30-day time period
shall be deemed to have waived their right to a hearing unless upon petition
the executive director finds that the period to file should be extended as a
result of:
(1) A showing that the person did not in fact
receive the notice of the recommendation and notice of right to request the commencement of
an adjudicative proceeding sent pursuant to Fis 1004.12; or
(2) A showing of excusable neglect, resulting
from extended travel, a health problem, or other condition that resulted in the
person not receiving actual notice of the decision prior to the expiration of
the appeal period.
Source. #13313, eff 2-3-22
Fis
1005.02 Adjudicative Proceeding.
(a) Any adjudicative proceeding under this
section shall be conducted, pursuant to Fis 200, by the executive director or by a presiding officer
appointed to conduct the hearing.
(b) The executive director or presiding officer
shall consider all claims of error offered by the claimant and shall only order
a modification of any recommendation made upon a finding that the claimant has shown:
(1) A mistake of fact on a significant finding
that serves as the basis of a recommendation;
(2) A mistake in applying a federal, state,
or local statute, rule, or regulation that serves as the basis of a
recommendation; or
(3) Identification of one or more conservation
measures that could serve to provide an adequate level of protection for
threatened and endangered species in the action area that differ from those
recommended by department review staff.
Source.
#13313, eff 2-3-22
PART Fis 1006 THREATENED AND ENDANGERED SPECIES COMPENSATORY MITIGATION FUND
Statutory Authority: RSA 206:10, I and RSA 212-A:16
Fis 1006.01 Purpose. The purpose of this part is to establish the criteria for the disbursement of funds that facilitate a net conservation benefit to threatened and endangered species from the threatened and endangered species compensatory mitigation fund, as established and required by RSA 212-A:16.
Source. #13451, eff 9-28-22
Fis 1006.02. Use of Threatened and Endangered Species Compensatory Mitigation Fund. Disbursements from the threatened and endangered species compensatory mitigation fund shall be considered for the following eligible costs consistent with RSA 212-A:16:
(a) Acquisition of land or conservation interests and associated costs, including property surveys, appraisals, transaction costs, title work, subdivision fees, and natural resource inventories;
(b) Development of stewardship plans;
(c) Development of restoration, enhancement, or habitat creation plans;
(d) Development of species recovery plans;
(e) Construction and other costs associated with the restoration, enhancement, or creation of habitat for threatened or endangered species;
(f) Purchase of supplies or equipment needed to conduct monitoring, management, or research activities for threatened or endangered species;
(g) Development of habitat management plans and costs associated with management activities;
(h) Research and monitoring of identified species or associated habitat;
(i) Species augmentation or captive breeding;
(j) Education, signage, or other efforts to reduce threats to threatened or endangered species;
(k) Contracting with approved vendors for implementation of eligible activities;
(l) Costs associated with department staff to implement proposed activities; and
(m) Other costs that benefit threatened or endangered species by reducing threats.
Source. #13451, eff 9-28-22
Fis 1006.03. Criteria for Disbursement of Funds.
(a) All disbursements from the threatened and endangered species compensatory mitigation fund shall be approved by the executive director following consultation with the commissioner of the department of environmental services.
(b) When applicable, disbursements from the threatened and endangered species compensatory mitigation fund shall be made to projects that will benefit the conservation of the same threatened and endangered species for which a designated payment into the fund was received, including habitat of the species.
(c) The executive director shall prioritize disbursements to projects with the greatest net conservation benefit to threatened and endangered species.
(d) The executive director shall consider ancillary conservation benefits to non-threatened and non-endangered species when prioritizing disbursements.
(e) The nongame and endangered wildlife program supervisor shall review all project requests and shall submit recommendations to the executive director for fund disbursement.
(f) Disbursements shall be made at the executive director’s discretion at any time of year and in any amount of available funds.
Source. #13451, eff 9-28-22
Fis 1006.04. Requests for Fund Disbursement. Requests for disbursement of funds from the threatened and endangered species compensatory mitigation fund shall include the following information:
(a) A description of the proposed activity;
(b) Identification of the threatened or endangered species and associated habitat that will benefit from the proposed activity;
(c) The names and contact information of the contractor or department staff that will implement the proposed activities;
(d) The duration of the proposed activity;
(e) The overall cost of the proposed activity;
(f) An itemized list of the requested funds from the threatened and endangered species compensatory mitigation fund to complete the project;
(g)
A brief explanation of how the proposed activity will facilitate a
conservation benefit for the targeted threatened or endangered species; and
(h) Identification of whether the proposed activity will require local, state, or federal authorizations or permits and whether application for such authorizations or permits has been made or acquired.
Source. #13451, eff 9-28-22
APPENDIX A: INCORPORATION BY REFERENCE INFORMATION
Rule |
Title |
Obtain at: |
Fis
1001.05(d) |
White-nose
Syndrome Conservation and Recovery Working Group. April 1, 2015. Acceptable
Management Practices for Bat Control Activities in Structures- A Guide for
Nuisance Wildlife Control Operators. U.S. Fish and Wildlife Service, Hadley,
MA. |
U.S. Fish
and Wildlife Service, Hadley, MA, no cost; or www.whitenosesyndrome.org/node/1147 |
Fis
1001.05(e) |
White-nose
Syndrome Conservation and Recovery Working Group. April 1, 2015. Acceptable
Management Practices for Bat Control Activities in Structures- A Guide for
Nuisance Wildlife Control Operators. U.S. Fish and Wildlife Service, Hadley,
MA. |
U.S. Fish and Wildlife
Service, Hadley, MA, no cost; or www.whitenosesyndrome.org/node/1147 |
APPENDIX B:
STATUTES IMPLEMENTED
Rule |
Specific State or Federal Statutes which
the Rule Implements |
|
|
Fis 1001.01 and 1001.02 |
RSA 212-A:6 |
Fis 1001.03 and 1001.04 |
RSA 212-A:7, II |
Fis 1001.05 |
RSA 212-A:7, II; 50 C.F.R. Part 17.40(o) |
Fis 1002.01 through Fis 1002.14 |
RSA 212-A:4 |
Fis 1003.01 and Fis 1003.02 |
RSA 212-A:9, III |
Fis 1004.01 through Fis
1004.13 |
RSA 212-A:9, III; RSA 541-A:29 |
Fis 1005.01 through Fis
1005.02 |
RSA 541-A:31 |
Fis 1006.01 |
RSA 206:10, I; RSA 212-A:9;
RSA 212-A:16 |
Fis 1006.02 |
RSA 206:10, I; RSA 206:33-g |
Fis 1006.03 |
RSA 206:10, I; RSA 212-A:9;
and RSA 212-A:16 |
Fis 1006.04 |
RSA 206:10, I; RSA 212-A:9 |
|
|