1995 - 1996 LEGISLATURE
ASSEMBLY AMENDMENT 3,
To ASSEMBLY AMENDMENT 26,
To ASSEMBLY SUBSTITUTE AMENDMENT 1,
To 1995 ASSEMBLY BILL 150
June 22, 1995 - Offered by Representatives Prosser and Brancel.
"94m. Page 313, line 5: increase the dollar amount for fiscal year 1995-96 by 4
$503,900 and increase the dollar amount for fiscal year 1996-97 by $1,092,300 for 5
the purpose of providing representation in misdemeanor cases in which a prosecutor 6
elects to proceed under section 967.052 (2) of the statutes.".
29.092 (12m) Incidental take permit.
The fee for an incidental take permit 11
issued under s. 29.415 (6m) is $100.".".
(ac) "Agency" means a board, commission, committee, department, 6
except the department of natural resources, or officer in the state government, except 7
the governor, a district attorney or a military or judicial officer.
(ag) "Agency action" means any action authorized, funded or 10
implemented by an agency.
(bn) "Whole plant-animal community" means a group of species 13
living together in a particular area, time and habitat.
29.415 (4) Prohibition.
(intro.) Except as provided in sub. (6r) or as
by departmental rule or permit:
29.415 (6m) Incidental take permits.
(a) The department may issue a permit, 19
under such terms and conditions as it may prescribe, authorizing a taking that 20
otherwise is prohibited by this section if the taking is not for the purpose of, but will 21
be only incidental to, the carrying out of a lawful activity.
(b) The department may not issue a permit under this subsection unless an 23
applicant for the permit submits to the department a conservation plan and an 24
implementing agreement. The conservation plan shall include all of the following:
1. A description of the impact that will likely occur to endangered species or 2
threatened species specified by the department's endangered and threatened species 3
2. The steps that the applicant will take to minimize and mitigate the impact 5
that the endangered species or the threatened species will suffer.
3. A description of the funding that the applicant will have available to 7
implement the steps specified under subd. 2.
4. A description of the alternative actions to the taking that the applicant has 9
considered and the reasons that these alternatives will not be utilized.
5. Any other measures that the department may determine to be necessary or 11
(d) An application for a permit under this subsection may contain more than 13
(f) Upon receipt of an application for a permit and the accompanying 15
conservation plan and implementing agreement for a proposed taking, the 16
department shall publicize the application by announcing the application receipt 17
and by giving a brief description of the proposed taking. The publicity shall be 18
distributed to the news media in the vicinity of the proposed taking. The department 19
shall establish a procedure for receipt of public comment on the proposed taking.
(g) After having considered the public comment received on the proposed 21
taking, the department shall issue the permit if the department finds, based on the 22
permit application, the conservation plan and the implementation agreement, that 23
the taking will meet all of the following requirements:
1. The taking will not be for the purpose of, but will be only incidental to, the 25
carrying out a lawful activity.
2. The applicant will, to the maximum extent practicable, minimize and 2
mitigate the impact caused by the taking.
3. The applicant will ensure that adequate funding for the conservation plan 4
will be provided.
4. The taking will not appreciably reduce the likelihood of the survival or 6
recovery of the endangered species or threatened species, the whole plant-animal 7
community of which it is a part or the habitat that is critical to its existence.
5. Any measures required under par. (b) 5. will be met.
(gm) The department may require that an applicant make additional 10
assurances that the requirements under par. (g) 1. to 5. will be met before issuing a 11
permit under par. (g).
(h) The department shall impose on the permit terms or conditions that the 13
department finds necessary or appropriate to ensure that the requirements under 14
par. (g) 1. to 5. will be met. These terms or conditions may include reporting and 15
(i) The department shall revoke a permit issued under this subsection if it finds 17
that an applicant fails to comply with the terms and conditions of the permit.
(j) A permit issued by the department is not required if a permit under 16 USC
has been issued and the department determines that that the federal permit, 20
along with its conservation plan and implementing agreement, comply with the 21
requirements under this subsection.
(k) This subsection does not apply to interagency activities under sub. (6r).
29.415 (6r) Consultation.
(a) An agency shall notify the department at the 25
earliest opportunity of the location, nature and extent of a proposed activity the
agency may conduct, approve or fund that may affect an endangered or threatened 2
species. The department may allow the taking, exportation, transportation or 3
possession of an endangered or threatened species if all of the following apply:
1. The activity is accomplished in accordance with interagency consultation 5
procedures established by the department and the agency for the purpose of 6
minimizing any adverse effect on the endangered or threatened species.
2. The activity is not likely to jeopardize the continued existence and recovery 8
of the endangered or threatened species, the whole plant-animal community of 9
which it is a part or is not likely to result in the destruction or adverse modification 10
of a habitat that is critical to the continued existence of the endangered species or 11
the threatened species, 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 determined whether a habit 14
is critical to the continued existence of an endangered or threatened species by 15
considering the endangered species' or threatened species' global and state element 16
ranking as defined by natural heritage inventory methodology.
(c) The department shall notify the agency if the department determines that 18
there is reasonable cause for the department to determine that an activity is not 19
being carried out in compliance with this subsection or with any environmental 20
protection requirements developed through interagency consultation procedures. If 21
the secretary of natural resources and the head, as defined in s. 15.01 (8), of the 22
agency or the state officer are unable to agree upon methods or time schedules to be 23
used to correct the alleged noncompliance, the department may bring any action or 24
initiate any other proceedings to enforce compliance with this subsection.