You asked if federal or state law prohibits building in areas where endangered species live. You also asked which animals are considered endangered.

SUMMARY

Under the federal Endangered Species Act it is illegal to harm wildlife or fish the federal government lists as endangered or threatened. "Harm" means killing or injuring fish or wildlife, including significantly changing or degrading their habitat in a way that significantly impairs their essential behavior patterns.

The act allows private individuals who engage in otherwise legal activities, such as building, to harm protected species only if the harm is incidental to the legal activity. The individual must obtain an "incidental take" permit, and must limit the activity's impact on the affected species through a Habitat Conservation Plan.

State law also protects endangered and threatened species. It applies to both federally listed species and other species the Department of Environmental Protection (DEP) lists as endangered or threatened. (These species may be endangered or threatened in Connecticut, but not in other states).

State law restricts the ability of state agencies to take actions that affect endangered or threatened species, but does not similarly restrict private parties who incidentally harm such species while performing a legal activity. However, DEP may require mitigation of such impacts as a condition of issuing DEP permits the activity requires. For example, if the activity requires DEP to issue a storm water discharge permit, the agency may condition issuance on steps the applicant takes to protect the listed species. Individuals concerned about the impacts of development on endangered species should contact DEP for assistance.

There were 1,258 federally listed endangered and threatened species as of June, 2002. Information about these species is available on-line at http: //endangered. fws. gov/wildlife. html#Sp http: //endangered. fws. gov/.

We also have attached a list of state protected species, some of which also are protected by federal law. The list is also available on-line at the web site of thehttp: //dep. state. ct. us/cgnhs/nddb/nddb2. htm Connecticut Natural Heritage Program.

THE FEDERAL ENDANGERED SPECIES ACT

The Endangered Species Act of 1973 (16 USC §1536) bars the taking of fish or wildlife (1) in danger of extinction throughout all or a significant portion of its range (endangered species) or (2) that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (threatened species). Together, endangered and threatened species are referred to as listed species. The law defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. " The U. S. Fish & Wildlife Service (Service), which enforces the law, interprets "harm" to include any act that actually kills or injures fish or wildlife, including acts that significantly modify or degrade their habitat and significantly impair their essential behavior patterns. The U. S. Supreme Court upheld this interpretation in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 (1995).

The act bars federal agencies from destroying or modifying the habitat of listed species (Tennessee Valley Authority v. Hill, 437 U. S. 153 (1978)). In 1982 Congress passed legislation allowing private parties to take federally listed species if the taking is incidental to an otherwise legal activity and the parties get an incidental take permit. To obtain the necessary incidental take permit, the landowner must enter into a Habitat Conservation Plan (HCP) with the Service in which he agrees to reduce the development's impact on the affected species.

Habitat Conservation Plan

An HCP must accompany an application for an incidental take permit. (The incidental take permit authorizes the incidental taking of a protected species. It does not authorize the activity that causes the taking. )

The HCP must include:

1. an assessment of impacts likely to result from the proposed taking of one or more federally listed species;

2. measures the applicant will undertake to monitor, minimize and mitigate such impacts, the funding available to implement such measures, and procedures to deal with unforeseen or extraordinary circumstances;

3. alternatives to the taking analyzed by the applicant, and his reasons for not adopting them; and

4. any additional measures the Service requires.

Mitigation measures may include (1) preservation, through acquisition of, or creation of conservation easements on, existing habitats; (2) restoring degraded habitats or creating new ones; (3) creating buffer zones, (4) modifying land use practices; (5) restricting access or (6) adopting seasonal restrictions on construction. Although incidental take permits may contain an expiration date, in certain cases the mitigation required by the HCP may be permanent.

The Service's regional director can issue an HCP after finding that:

1. the taking will be incidental to an otherwise lawful activity,

2. the impacts will be minimized and mitigated to the maximum extent practicable,

3. adequate funding will be provided,

4. the taking will not appreciably reduce the likelihood of the species' survival and recovery, and

5. the applicant has taken any other necessary the Service believes necessary.

The HCP must comply with the National Environmental Policy Act and state and local environmental and planning laws.

Individuals who believe their activities may cause harm to a federally listed species should contact the Service office in Hadley, Massachusetts (413-253-8615). Officials there can help design the proposed project to avoid or reduce harm to protected species.

We have attached some fact sheets on HCPs. More information on the application process for an incidental take permit and HCPs is available on line at Endangered Species Habitat Conservation Program, U. S. Fish & Wildlife Service

STATE ENDANGERED SPECIES LAW

It is state policy to conserve, protect, restore and enhance any endangered or threatened species and essential habitat (CGS § 26-303 et seq. ). An endangered species is any native species documented to be in danger of extirpation throughout all or a significant portion of its range within the state and to have no more than five "occurrences" in the state. A threatened species is one likely to become endangered in the foreseeable future and to have no more than nine occurrences in the state. An occurrence is a population of a species breeding and existing within the same ecological community and capable, or potentially capable, of interbreeding with other species members in that community. State law also protects federally listed species (CGS § 26-304 (7), (8) and (15)).

The DEP commissioner must review and update the list of protected species every five years (CGS § 26-307). We have attached a list of endangered and threatened animal and plant species.

The law requires state agencies to conserve protected species and their essential habitats, and to ensure that any agency action does not threaten the existence of any protected species or result in the destruction or degradation of its habitat. The Office of Policy and Management may grant exemptions in certain cases (CGS § 26-310).

By law it also is illegal for:

1. anyone to willfully take a protected species from public property, state waters or another person's property without the owner's written permission;

2. anyone, including the owner of the land on which the protected species occurs, to willfully take the species to sell it, offer it for sale, transport it for commercial gain or export it ; and for

3. any state agency to destroy or adversely modify essential habitat in a way that would reduce its ability to support a protected species, or would kill, injure or appreciably reduce the species' likelihood to survive (CGS § 26-311(a)).

The law does not prohibit an individual from performing an otherwise legal activity on his own land that results in the incidental taking of a protected animal or plant species or a species of special concern (CGS § 26-311(b)). (A species of special concern is a native plant species or any native non-harvested wildlife species (1) documented to have a naturally restricted range or habitat in the state, (2) to be at a low population level, and (3) to be in such high demand by man that its unregulated taking would be detrimental to the conservation of its population, or (4) that has been extirpated from the state (CGS § 26-304(9)).

But DEP's Ed Parker says DEP would seek to protect such species if the activity requires a DEP permit for other reasons. In such a case, DEP natural resources staff would work with the permitting staff and the applicant to minimize the project's impact on the protected wildlife or offset its loss of habitat.

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