Full Statute Name:  West's Vermont Statutes Annotated. Title Ten. Conservation and Development. Part 4. Fish and Wildlife Conservation. Chapter 123. Protection of Endangered Species

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Primary Citation:  10 V.S.A. § 5401 - 10 Country of Origin:  United States Last Checked:  January, 2017 Alternate Citation:  VT ST T 10 § 5401 - 10
Summary:

These Vermont statutes set out the state's endangered species provisions, including the related definitions, rules for listing species, and regulations for establishing the committees.  Violation of the provisions against taking incur penalties ranging from $500 - 1,000 for the first offense.  Interestingly, there is a provision that provides for the location of listed endangered species to be kept "confidential in perpetuity" except to landowners and bona fide purchasers of relevant land.

Statute Text: 

 

§ 5401 . Definitions

§ 5402 . Endangered and threatened species lists

§ 5403 . Protection of endangered and threatened species

§ 5404 . Endangered species committee

§ 5405 . Conservation programs

§ 5406 . Cooperation by other agencies

§ 5407 . Enforcement

§ 5408 . Limitations

§ 5409 . Repealed

§ 5410 . Location confidential

 

§ 5401. Definitions

As used in this chapter:

(1) “Accepted silvicultural practices” means the accepted silvicultural practices defined by the Commissioner of Forests, Parks and Recreation, including the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont adopted by the Commissioner of Forests, Parks and Recreation.

(2) “Agency” means the Agency of Natural Resources.

(3) “Conserve,” “conserving,” and “conservation” mean to use and the use of all methods and procedures for maintaining or increasing:

(A) the number of individuals within a population of a species;

(B) the number of populations of a species; and

(C) populations of wildlife or wild plants to the optimum carrying capacity of the habitat.

(4) “Critical habitat” for a threatened species or endangered species means:

(A) a delineated location within the geographical area occupied by the species that:

(i) has the physical or biological features that are identifiable, concentrated, and decisive to the survival of a population of the species; and

(ii) is necessary for the conservation or recovery of the species; and

(iii) may require special management considerations or protection; or

(B) a delineated location outside the geographical area occupied by a species at the time it is listed under section 5402 of this title that:

(i)(I) was historically occupied by a species; or

(II) contains habitat that is hydrologically connected or directly adjacent to occupied habitat; and

(ii) contains habitat that is identifiable, concentrated, and decisive to the continued survival of a population of the species; and

(iii) is necessary for the conservation or recovery of the species.

(5) “Destroy or adversely impact” means, with respect to critical habitat, a direct or indirect activity that negatively affects the value of critical habitat for the survival, conservation, or recovery of a listed threatened or endangered species.

(6) “Endangered species” means a species listed as endangered under this chapter or under the federal Endangered Species Act.1

(7) “Endangered Species Act” and “federal Endangered Species Act” means the Endangered Species Act of 1973, Public Law 93-205, as amended.

(8) “Farming” shall have the same meaning as used in subdivision 6001(22) of this title.

(9) “Forestry operations” means activities related to the management of forests, including a timber harvest; pruning; planting; reforestation; pest, disease, and invasive species control; wildlife habitat management; and fertilization. “Forestry operations” include the primary processing of forest products of commercial value on a parcel where the timber harvest occurs.

(10) “Habitat” means the physical and biological environment in which a particular species of plant or animal lives.

(11) “Harming,” as used in the definition of “take” or “taking” under subdivision (18) of this section, means:

(A) an act that kills or injures a threatened or endangered species; or

(B) the destruction or imperilment of habitat that kills or injures a threatened or endangered species by significantly impairing continued survival or essential behavioral patterns, including reproduction, feeding, or sheltering.

(12) “Methods” and “procedures” means all activities associated with natural resources management, including scientific research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplanting. The terms also include the periodic or continuous protection of species or populations, where appropriate, and the regulated taking of individuals of the species or population in extraordinary cases where population pressures within a habitat cannot be otherwise relieved.

(13) “Optimum carrying capacity” for a species means a population level of that species which, in that habitat, can sustainably coexist with healthy populations of all wildlife and wild plant species normally present.

(14) “Plant” means any member of the plant kingdom, including seeds, roots, and other parts thereof. As used in this chapter, plants shall include fungi.

(15) “Possession” means holding, controlling, exporting, importing, processing, selling, offering to sell, delivering, carrying, transporting, or shipping by any means a member of a species.

(16) “Secretary” means the Secretary of Natural Resources.

(17) “Species” means wildlife or wild plants and any subspecies or other group of wildlife or wild plants of the same species, the members of which may interbreed when mature.

(18) “Take” or “taking”:

(A) With respect to wildlife designated a threatened or endangered species, means:

(i) pursuing, shooting, hunting, killing, capturing, trapping, harming, snaring, or netting wildlife;

(ii) an act that creates a risk of injury to wildlife, whether or not the injury occurs, including harassing, wounding, or placing, setting, drawing, or using any net or other device used to take animals; or

(iii) attempting to engage in or assisting another to engage in an act set forth under subdivision (i) or (ii) of this subdivision (14)(A).

(B) With respect to a wild plant designated a threatened or endangered species, means uprooting, transplanting, gathering seeds or fruit, cutting, injuring, harming, or killing or any attempt to do the same or assisting another who is doing or is attempting to do the same.

(19) “Threatened species” means a species listed as a threatened species under this chapter or determined to be a “threatened species” under the federal Endangered Species Act.

(20) “Wildlife” means any member of a nondomesticated species of the animal kingdom, whether reared in captivity or not, including, without limitation, any mammal, fish, bird, amphibian, reptile, mollusk, crustacean, arthropod, or other invertebrate, and also including any part, product, egg, offspring, dead body, or part of the dead body of any such wildlife.

Credits
1981, Adj. Sess., No. 188, § 2; 1985, Adj. Sess., No. 192, § 1; 1987, No. 76, § 18; 2015, Adj. Sess., No. 145, §§ 19, 29, eff. July 1, 2016.

 

§ 5402. Endangered and threatened species lists

(a) The secretary shall adopt by rule a state-endangered species list and a state-threatened species list. The listing for any species may apply to the whole state or to any part of the state and shall identify the species by its most recently accepted genus and species names and, if available, the common name.

(b) The secretary shall determine a species to be endangered if it normally occurs in the state and its continued existence as wildlife or a wild plant in the state is in jeopardy.

(c) The secretary shall determine a species to be threatened if its numbers are significantly declining because of loss of habitat or human disturbance and unless protected will become an endangered species.

(d) In determining whether a species is endangered or threatened, the secretary shall consider:

(1) the present or threatened destruction, modification or curtailment of the range or habitat of the species;

(2) over-utilization of the species for commercial, sporting, scientific, educational or other purposes;

(3) disease or predation affecting the species;

(4) the adequacy of existing regulation;

(5) actions relating to the species carried out or about to be carried out by any governmental agency or any other person who may affect the species; and

(6) other natural or man-made factors affecting the continued existence of the species.

(e) In determining whether a species is endangered or threatened, the secretary shall:

(1) use the best scientific, commercial and other data available;

(2) consult with interested state or federal agencies, other states having a common interest in the species, and any interested persons; and

(3) notify the governor of any state contiguous to Vermont in which the species affected is known to occur.

-- Added 1981, No. 188 (Adj. Sess.), § 2.

 

§ 5403. Protection of endangered and threatened species

(a) Except as authorized under this chapter, a person shall not:

(1) take, possess, or transport wildlife or wild plants that are members of a threatened or endangered species; or

(2) destroy or adversely impact critical habitat.

(b) Any person who takes a threatened or endangered species shall report the taking to the Secretary.

(c) The Secretary may, with advice of the Endangered Species Committee and after the consultation required under subsection 5408(e) of this section, adopt rules for the protection, conservation, or recovery of endangered and threatened species. The rules may establish application requirements for an individual permit or general permits issued under this section, including requirements that differ from the requirements of subsection 5408(h) of this title.

(d) The Secretary may bring an environmental enforcement action against any person who violates subsection (a) or (b) of this section or rules adopted under this chapter in accordance with chapters 201 and 211 of this title.

(e) Instead of bringing an environmental enforcement action for a violation of this chapter or rules adopted under this chapter, the Secretary may refer violations of this chapter to the Commissioner of Fish and Wildlife for criminal enforcement.

(f) In a criminal enforcement action, a person who knowingly violates a requirement of this chapter or a rule of the Secretary adopted under subsection (c) of this section related to taking, possessing, transporting, buying, or selling a threatened or endangered species shall be fined in accordance with section 4518 of this title, and the person shall pay restitution under section 4514 of this title.

(g) Any person who violates subsection (a) or (b) of this section by knowingly injuring a member of a threatened or endangered species or knowingly destroying or adversely impacting critical habitat and who is subject to criminal prosecution may be required by the court to pay restitution for:

(1) actual costs and related expenses incurred in treating and caring for the injured plant or animal to the person incurring these expenses, including the costs of veterinarian services and Agency of Natural Resources staff time; or

(2) reasonable mitigation and restoration costs such as: species restoration plans; habitat protection; and enhancement, transplanting, cultivation, and propagation.

Credits
1981, Adj. Sess., No. 188, § 2; 1985, Adj. Sess., No. 192, § 2; 1987, Adj. Sess., No. 216; 2015, No. 61, § 8, eff. June 17, 2015; 2015, Adj. Sess., No. 145, § 22, eff. July 1, 2016.

 

§ 5404. Endangered species committee

(a) A committee on endangered species is created to be known as the "endangered species committee," and shall consist of nine members, including the secretary of agriculture, food and markets, the commissioner of fish and wildlife, the commissioner of forests, parks and recreation, and six members appointed by the governor from the public at large. Of the six public members, two shall be actively engaged in agricultural activities, two shall be knowledgeable concerning flora, and two shall be knowledgeable concerning fauna. Members appointed by the governor shall be entitled to reimbursement for expenses incurred in the attendance of meetings, as approved by the chairman. The chairman of the committee shall be elected from among and by the members each year. Members shall serve terms of three years, except that the governor may make appointments for a lesser term in order to prevent more than two terms from expiring in any year.

(b) The endangered species committee shall advise the secretary on all matters relating to endangered and threatened species, including whether to alter the lists of endangered and threatened species and how to protect those species.

(c) The agency of natural resources shall provide the endangered species committee with necessary staff services.

-- Added 1981, No. 188 (Adj. Sess.), § 2; amended 1987, No. 76, § 18; 2003, No. 42, § 2, eff. May 27, 2003.

 

§ 5405. Conservation programs

The secretary, with the advice of the endangered species committee, may establish conservation programs for the conservation of threatened or endangered species of wildlife or plants. The programs may include the purchase of land or aquatic habitat and the formation of contracts for the purpose of management of wildlife or wild plant refuge areas or for other purposes.

-- Added 1981, No. 188 (Adj. Sess.), § 2.

 

§ 5406. Cooperation by other agencies

All agencies of this state shall review programs administered by them which may relate to this chapter and shall, in consultation with the secretary, utilize their authorities only in a manner which does not jeopardize the conservation programs established by this chapter or by the secretary under its authority.

-- Added 1981, No. 188 (Adj. Sess.), § 2.

 

§ 5407. Enforcement

In addition to other methods of enforcement authorized by law, the secretary may direct under this section that wildlife or wild plants which were seized because of violation of this chapter be transferred to a zoological, botanical, educational or scientific institution, and that the costs of the transfer may be charged to the violator. The secretary, with the advice of the endangered species committee, may adopt rules for the implementation of this section.

-- Added 1981, No. 188 (Adj. Sess.), § 2.

 

§ 5408. Limitations

(a) 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 prescribe by rule, any act otherwise prohibited by this chapter if done for any of the following purposes: scientific purposes; to enhance the propagation or survival of a species; economic hardship; zoological exhibition; educational purposes; noncommercial cultural or ceremonial purposes;or special purposes consistent with the purposes of the federal Endangered Species Act. [FN1]

(b) 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 an endangered or threatened species from a point outside this state to another point within or without this state.

(c) Nothing in this chapter shall prevent a person from possessing in this state wildlife or wild plants which 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.

(d) No rule adopted under this chapter shall cause undue interference with normal agricultural or silvicultural practices. This section shall not be construed to exempt any person from the provisions of the federal Endangered Species Act.

(e) Nothing in this section permits a person to violate any provision of federal law concerning federally protected endangered species.

(f)(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, 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 or to lessen an economic hardship, $250.00 for each listed animal or plant taken up to a maximum of $25,000.00, or if the secretary determines that it is in the best interest of the species, the parties may agree to mitigation in lieu of a monetary fee.

(2) Fees or mitigation payments collected under this subsection shall be deposited in the threatened and endangered species fund within the fish and wildlife fund, which fund is hereby created. Expenditures may be made for monitoring, restoration, conservation, 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 of the taken species or its habitat. Interest accrued on the fund shall be credited to the fund.

(g) 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.

CREDIT(S)

1981, Adj. Sess., No. 188, § 2; 1985, Adj. Sess., No. 192, §§ 3, 4; 2003, Adj. Sess., No. 163, § 17; 2011, Adj. Sess., No. 128, § 35, eff. July 1, 2012; 2013, Adj. Sess., No. 116, § 12, eff. July 1, 2014.

[FN1] 16 U.S.C.A. § 1531 et seq.

 

§ 5409. Repealed. 1985, No. 192 (Adj. Sess.), § 5.


§ 5410. Location confidential

(a) The Secretary shall not disclose information regarding the specific location of threatened or endangered species sites except that the Secretary shall disclose information regarding the location of the threatened or endangered species to:

(1) the owner of land upon which the species is located;

(2) a potential buyer of land upon which the species is located who has a bona fide contract to buy the land and applies to the Secretary for disclosure of threatened or endangered species information; or

(3) qualified individuals or organizations, public agencies and nonprofit organizations for scientific research or for preservation and planning purposes when the Secretary determines that the preservation of the species is not further endangered by the disclosure.

(b) When the Secretary issues a permit under this chapter to take a threatened or endangered species or destroy or adversely impact critical habitat and when the Secretary designates critical habitat by rule under section 5402a of this title, the Secretary shall disclose only the municipality and general location where the threatened or endangered species or designated critical habitat is located. When the Secretary designates critical habitat under section 5402a of this title, the Secretary shall notify the municipality in which the critical habitat is located and shall disclose the general location of the designated critical habitat.

Credits
1995, Adj. Sess., No. 159, § 3; 2015, Adj. Sess., No. 145, § 28, eff. July 1, 2016.

 

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