Modifying natural habitat: mitigation plan

It is the regime Act 241-1999 applies to any human-caused change in natural habitat. Article 2(gg) defines habitat modification as any human-caused change in natural habitat that kills or affects native and migratory wildlife, or that could cause those effects by altering their essential normal behaviour patterns such as reproduction, feeding or shelter. The regime is made up of the public policy and rules of Article 3, the two illegal acts of Article 6(s) and 6(t), and the restoration power of Article 10(e).

The rules reach whoever modifies, private or public. Article 2(v) defines a person as any natural or legal person, including the Government of Puerto Rico, its agencies and instrumentalities. Article 3 adds a duty specific to the public sector: public agencies and instrumentalities must consult the Department on any consultation, permit or franchise that may have foreseeable significant impacts on wildlife. And it opens a route for organised citizens: any public organisation or entity promoting wildlife conservation may request that a species be designated vulnerable or endangered, or its critical natural habitat be designated, provided it presents scientific information.

• Not modifying the essential critical natural habitat of vulnerable or endangered species: the Act establishes a prohibition, with no conditions (Article 3).Verified against the official source
• In critical natural habitat that is not essential, that the proposal be of vital public interest and that no other alternative exist; the cost of alternatives may not be considered as an element of analysis (Article 3).Verified against the official source
• If critical natural habitat is finally modified, acquiring habitat of similar ecological value and delivering it to the Department in an amount greater than the modified area, in a proportion of at least three to one (Article 3).Verified against the official source
• Holding a mitigation plan approved by the Department before carrying out modifications of natural habitat, critical natural habitat or essential critical natural habitat (Articles 6(s) and 6(t)).Verified against the official source
• For natural habitat modifications, a mitigation mechanism to acquire land of equal or greater ecological value to be ceded, prioritising the expansion of existing state forests and biological corridors and the creation of new state forests, natural reserves and riparian areas (Article 3).Verified against the official source
• That public agencies and instrumentalities consult the Department on any consultation, permit or franchise with foreseeable significant impacts on wildlife (Article 3).Verified against the official source

• The mitigation plan approved by the Department, which is what Articles 6(s) and 6(t) require before modifying habitat.
• Evidence of the acquisition of habitat of similar ecological value and of its delivery to the Department in the at-least three-to-one proportion, where critical natural habitat was modified (Article 3).
• The scientific information that must accompany a request to designate a species as vulnerable or endangered, or to designate its critical natural habitat (Article 3).

1. 1

   Step 1: First you must know which category the land falls in

   The Act uses three similar names with very different consequences, and Article 2 separates them. Natural habitat, subsection (dd): land whose ecological conditions permit the existence and reproduction of wildlife populations; it excludes urbanised land and includes, without limitation, forests, wetlands and herbaceous meadows. Critical natural habitat, subsection (ee): specific land within the geographic area where a species designated vulnerable or endangered is found or may be reintroduced, with physical and biological characteristics essential to the species’ conservation and needing protection or special management. Essential critical natural habitat, subsection (ff): all habitat necessary for the survival of vulnerable or endangered species whose characteristics occur only in a particular area of Puerto Rico.

2. 2

   Step 2: Essential critical habitat is not negotiable

   Article 3 says it in one short sentence: this Act establishes a prohibition on modifying essential critical natural habitats of vulnerable or endangered species. There is no public-interest test to pass and no compensation to offer, because the text does not open that door. The only possible argument in a concrete case is whether the land falls within the Article 2(ff) definition.

3. 3

   Step 3: In non-essential critical habitat, cost is not an argument

   For critical natural habitat that is not essential, Article 3 permits modifications only if the proposal is of vital public interest and no other alternative exists. And it adds the sentence that changes how the analysis is built: in determining whether alternatives exist, their cost may not be considered as an element of analysis. A more expensive alternative is still an alternative; that the project does not want to pay for it does not remove it from the record under the text of the Act.

4. 4

   Step 4: Three to one, and that is the floor

   Article 3 sets the compensation with two cumulative conditions. If critical natural habitat is finally modified, the acquisition of habitat of similar ecological value will be required, to be delivered to the Department in an amount greater than the modified area, in a proportion of at least three to one. That is: the replacement land must be of similar ecological value, not merely the same number of acres, and the three-to-one proportion is a floor, not a ceiling.

5. 5

   Step 5: Ordinary natural habitat also carries mitigation

   The next paragraph of Article 3 steps down a level and still requires something: for natural habitat modifications the Department shall require a mitigation mechanism for acquiring land of equal or greater ecological value to be ceded, prioritising the acquisition of land to expand existing state forests, biological corridors, and to create new state forests, natural reserves and riparian areas. It adds two management criteria: forest fragmentation shall be avoided, and wetland mitigation shall be done in coordination with the Corps of Engineers.

6. 6

   Step 6: What counts as modifying

   Article 2(gg) defines habitat modification as any human-caused change in natural habitat that kills or affects native and migratory wildlife, or could cause those effects by altering their essential normal behaviour patterns such as reproduction, feeding or shelter. The conditional matters: the definition reaches the change that could cause the effect, not only the one that already did, and the patterns it names are behavioural, not merely about physical presence.

7. 7

   Step 7: Without an approved plan, it is an illegal act

   Article 6 sets two consecutive subsections that are often read as one. Subsection (s): carrying out modifications of critical natural habitat and of essential critical natural habitat of vulnerable or endangered species without a mitigation plan approved by the Department. Subsection (t): carrying out modifications of natural habitat without a mitigation plan approved by the Department. The difference is the category of the land; the requirement of an approved plan is the same in both.

8. 8

   Step 8: The Secretary can compel you to restore

   Article 10(e) adds to the Secretary’s powers that of taking pertinent measures to restore natural habitat that has been impacted and compelling those who caused the unauthorised modification to restore the system. It is an obligation to act that sits on top of the fine: restore the system, at the expense of whoever modified it without authorisation.

9. 9

   Step 9: Agencies must consult before permitting

   Article 3 opens with a duty that falls on government and not on the proponent: public agencies and instrumentalities must consult the Department on any consultation, permit or franchise that may have foreseeable significant impacts on wildlife. The Department, in turn, may consult and shall take into account the recommendations of bodies such as the federal Forest Service, the Junta de Planificación and the natural-science faculties of duly accredited academic entities, on any proposal that may affect the essential critical natural habitat of vulnerable or endangered species.

10. 10

    Step 10: You can ask for a species or its habitat to be designated

    The same Article 3 creates a route that does not depend on the Department acting on its own: any public organisation or entity promoting wildlife conservation may request the designation of a species as vulnerable or endangered, or of its critical natural habitat, provided it presents scientific information on the matter. The Department shall resolve the request under Act 38-2017, the uniform administrative procedure act. Article 9(i) is the Secretary’s matching power to designate those species and take the measures necessary for their perpetuation.

Before the Department of Natural and Environmental Resources, which approves the mitigation plan required by Articles 6(s) and 6(t), receives the mitigation land the proponent cedes, resolves requests to designate species and habitats under Act 38-2017, and which public agencies and instrumentalities must consult before issuing a consultation, permit or franchise with foreseeable significant impacts on wildlife. Wetland mitigation, Article 3 says, is done in coordination with the Corps of Engineers.

• Treating the three habitat categories as one: the essential one is prohibited, non-essential critical habitat is conditional, and ordinary natural habitat requires a mitigation mechanism.
• Believing everything can be solved by compensating: for essential critical habitat the Act establishes a prohibition, not a price.
• Arguing that the alternative is too expensive: Article 3 excludes cost from the alternatives analysis.
• Reading three-to-one as a ceiling: the text says “at least” and also requires an amount greater than the modified area.
• Offering land equivalent in acreage but not in ecological value: the Act asks for similar ecological value.
• Assuming urbanised land never counts: it falls outside the definition of natural habitat, but that does not settle whether the area worked on is such land.
• Thinking only damage already caused counts: the definition reaches the change that could cause the effect.
• Starting work with the plan merely filed: Articles 6(s) and 6(t) require it to be approved.
• Believing the fine closes the matter: Article 10(e) allows compelling whoever caused it to restore the system.
• Assuming the proponent makes the DRNA consultation: Article 3 imposes it on public agencies and instrumentalities.
• Requesting a species designation without evidence: the request must present scientific information.

These are the government pages this guide is based on.

• Departamento de Recursos Naturales y Ambientales (DRNA)

  DRNA

  bvirtualogp.pr.gov