2. The steps that the parties specified under par. (d) will take to minimize and mitigate the impact that the endangered species or the threatened species will suffer.
3. A description of the funding that the parties specified under par. (d) will have available to implement the steps specified under subd. 2.
4. A description of the alternative actions to the taking that the parties in par. (d) have considered and the reasons that these alternatives will not be utilized.
5. Any other measures that the department may determine to be necessary or appropriate.
(d) The implementing agreement required under par. (c) shall specifically name, and describe the obligations and responsibilities of, all the parties that will be involved in the taking as authorized by the permit.
(e) Upon receipt of an application for a permit and the accompanying conservation plan and implementing agreement for a proposed taking, the department shall publicize the application by announcing the application receipt and by giving a brief description of the proposed taking. The department publicity shall be distributed to the news media in the vicinity of the proposed taking and to the official state newspaper designated under s. 985.04. The department shall, by rule, establish a list of organizations, including nonprofit conservation groups, that have a professional, scientific or academic interest in endangered species or in threatened species. The department shall give notification of proposed takings under this subsection to these organizations. The department shall establish a procedure for receipt of public comment on the proposed taking.
(f) After having considered the public comment received on the proposed taking, the department shall issue the permit if the department finds, based on the permit application, the conservation plan and the implementing agreement, the taking will meet all of the following requirements:
1. The taking will not be the purpose of, but will be only incidental to, the carrying out of a lawful activity.
2. The parties specified under par. (d) will, to the maximum extent practicable, minimize and mitigate the impact caused by the taking.
3. The parties specified under par. (d) will ensure that adequate funding for the conservation plan will be provided.
4. The taking will not appreciably reduce the likelihood of the survival or recovery of the endangered species or threatened species within the state, the whole plant-animal community of which it is a part or the habitat that is critical to its existence.
5. Any measures required under par. (c) 5. will be met.
(g) The department may require that a party specified under par. (d) make additional assurances that the requirements under par. (f) 1. to 5. will be met before issuing a permit under par. (f).
(h) The department shall impose on the permit any terms or conditions that the department finds necessary to ensure that the requirements under par. (f) 1. to 5. will be met. These terms or conditions may include reporting and monitoring requirements. These terms or conditions are modifiable only as provided under par. (hm).
(hm) The terms or conditions of a permit shall be modified if one of the following applies:
1. The modification is expressly provided in the conservation plan, implementing agreement or permit.
2. The permittee requests the modification.
3. Just cause exists based upon a written finding of necessity by the secretary.
(hr) A finding of necessity under par. (hm) 3. by the secretary shall be a final decision not subject to review under subch. III of ch. 227.
(i) The department shall revoke a permit issued under this subsection if it finds that a party specified under par. (d) fails to comply with the terms and conditions of the permit.
(j) A permit issued by the department is not required if a federal permit under 16 USC 1539 has been issued and if the federal fish and wildlife service consulted with the department in the process of determining whether to issue the federal permit.
(k) Paragraphs (b) to (j) do not apply to activities by a state agency or by the department under sub. (6r).
296,12
Section 12
. 29.415 (6r) of the statutes is created to read:
29.415 (6r) Agency activities. (a) A state agency shall notify the department at the earliest opportunity of the location, nature and extent of a proposed activity that the state agency may conduct, approve or fund and that may affect an endangered species or threatened species. The department may allow the taking of an endangered species or threatened species if all of the following apply:
1. The activity is accomplished in accordance with interagency consultation procedures established by the department and the state agency for the purpose of minimizing any adverse effect on the endangered species or threatened species.
2. The activity is not likely to jeopardize the continued existence and recovery of the endangered species or threatened species, or the whole plant-animal community of which it is a part, within this state and the activity is not likely to result in the destruction or adverse modification of a habitat that is critical to the continued existence of the endangered species or the threatened species within the state, as determined by the department under par. (b).
3. The benefit to public health, safety or welfare justifies the activity.
(b) For purposes of par. (a) 2., the department shall determine whether a habitat is critical to the continued existence of an endangered species or threatened species by considering the endangered species' or threatened species' global and state element ranking as defined by the methodology used by the natural heritage inventory program.
(bn) The department may allow an activity by the department itself that results in the taking of an endangered species or threatened species if the activity is accomplished with procedures established by the department for the purpose of minimizing any adverse effect on the endangered species or threatened species and if pars. (a) 2. and 3. and (b) apply.
(c) The department shall notify the state agency if the department determines that there is reasonable cause for the department to determine that an activity by the state agency is not being carried out in compliance with this subsection or with any environmental protection requirements developed through interagency consultation procedures. If the secretary of natural resources and the head, as defined in s. 15.01 (8), of the state agency are unable to agree upon methods or time schedules to be used to correct the alleged noncompliance, the department may bring any action or initiate any other proceedings to enforce compliance with this subsection.
(d) The department and the state agency shall exchange information and cooperate in the planning and implementation of any activity relating to the taking of any endangered species or threatened species in order to alleviate, to the maximum extent practicable under the circumstances, any potential adverse effect on the endangered species or the threatened species.
(e) 1. Except as provided in subd. 2., cooperation between the department and the state agency under par. (d) shall include conducting reasonable surveys and reasonable biological assessments as determined by the department.
2. Subdivision 1. does not apply if the department states in writing that it has data that is sufficient to make a determination that the proposed taking will not reduce the likelihood of the survival or recovery of the endangered species or threatened species within the state, the whole plant-animal community of which it is a part or the habitat that is critical to its existence.
(em) 1. Before allowing the taking of an endangered species or threatened species under this subsection, the department shall give notice of the proposed activity to the news media throughout the state and to any person who wants to receive notification of proposed takings under this subsection and who has so informed the department in writing. The department shall transmit the notice at least 30 days before allowing the taking except as provided in subd. 2.
2. If the department determines that it cannot comply with the 30-day time limit in subd. 1., the department shall transmit the notice as far in advance as is practicable before allowing the taking.
(f) In addition to any requirements under s. 1.11, the department may give public notice of and hold public hearings on the activities of state agencies or the department under this subsection.
296,12m
Section 12m.
Nonstatutory provisions.
(1) The department of natural resources shall submit the proposed rule required under section 29.415 (6m) (e) of the statutes, as created by this act, to the legislative council staff for review under section 227.15 (1) of the statutes no later than October 1, 1996.
(2) Using the procedure under section 227.24 of the statutes, the department of natural resources shall promulgate the rule required under section 29.415 (6m) (e) of the statutes, as created by this act. The rule shall be in effect until the effective date of the rule submitted under subsection (1), regardless of whether the period of time during which the rule is in effect exceeds the period authorized under section 227.24 (1) (c) and (2) of the statutes. Notwithstanding section 227.24 (1) (a) and (2) (b) of the statutes, the department of natural resources need not provide evidence of the necessity of preservation of the public peace, health, safety or welfare in promulgating the rule under this subsection.
