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Public Act 91-0556
HB1825 Enrolled LRB9103223DHmg
AN ACT to amend the Illinois Endangered Species
Protection Act.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Endangered Species Protection
Act is amended by adding Section 5.5 and changing Section 11
as follows:
(520 ILCS 10/5.5 new)
Sec. 5.5. Incidental taking.
(a) The Department may authorize, under prescribed terms
and conditions, any taking otherwise prohibited by Section 3
if that taking is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity. No taking
under this Section shall be authorized by the Department
unless the applicant submits to the Department a conservation
plan.
(b) The conservation plan shall include but not be
limited to the following:
(1) a description of the impact that the proposed
taking is likely to have on one or more species on the
Illinois list;
(2) the steps the applicant or other parties will
take to minimize and mitigate that impact and the funding
that will be available to implement those steps,
including but not limited to bonds, insurance, or escrow;
(3) what alternative actions to the taking the
applicant considered and the reasons why those
alternatives will not be used;
(4) data and information to assure that the
proposed taking will not reduce the likelihood of the
survival or recovery of the endangered species or
threatened species in the wild within the State of
Illinois, the biotic community of which the species is a
part, or the habitat essential to the species' existence
in Illinois;
(5) an implementing agreement that specifically
names, and describes the obligations and responsibilities
of, all the parties that will be involved in the taking
as authorized by the permit; and
(6) any other measures that the Department may
require as being necessary or appropriate for purposes of
the plan.
(c) After reviewing the application for incidental
taking and the conservation plan, the Department may
authorize the incidental taking if the Department finds, in a
written decision explaining its conclusions, that 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 an otherwise
lawful activity;
(2) the parties to the conservation plan will, to
the maximum extent practicable, minimize and mitigate the
impact caused by the taking;
(3) the parties to the conservation plan will
ensure that adequate funding for the conservation plan
will be provided;
(4) based on the best available scientific data,
the Department has determined that the taking will not
reduce the likelihood of the survival or recovery of the
endangered species or threatened species in the wild
within the State of Illinois, the biotic community of
which the species is a part, or the habitat essential to
the species' existence in Illinois;
(5) any measures required under paragraph (6) of
subsection (b) of this Section will be performed; and
(6) the public has received notice of the
application and has had the opportunity to comment before
the Department made any decision regarding the
application.
(d) The Department may require that a party to the
conservation plan make additional assurances that the
requirements under items (b)(1) through (b)(6) of this
Section will be met before authorizing incidental taking.
(e) The Department shall impose on the authorization for
incidental taking any terms or conditions that the Department
finds necessary to ensure that the requirements under items
(b)(1) through (b)(6) of this Section will be met. These
terms or conditions may include but are not limited to
reporting or monitoring requirements.
(f) If an applicant is party to a Habitat Conservation
Plan approved by the U.S. Fish and Wildlife Service pursuant
to Section 10 of the Endangered Species Act of 1973, P.L.
93-205, and amendments thereto, the Department may authorize
taking that is incidental to the carrying out of an otherwise
lawful activity. Authorization shall be issued only if the
provisions of the Habitat Conservation Plan are found to meet
the requirements set forth in subsection (c) of this Section.
(g) If an applicant has been authorized to take an
endangered or threatened species under the terms of a
biological opinion issued by the U.S. Fish and Wildlife
Service pursuant to Section 7 of the Endangered Species Act
of 1973, P.L. 93-205, and amendments thereto or regulations
implementing Section 7 (50 CFR Part 402), the Department may
authorize taking that is incidental to the carrying out of an
otherwise lawful activity. Authorization shall be issued
only if the Department finds that the taking will not reduce
the likelihood of the survival or recovery of the endangered
species or threatened species in the wild within the State of
Illinois, the biotic community of which the species is a
part, or the habitat essential to the species' existence in
Illinois.
(520 ILCS 10/11) (from Ch. 8, par. 341)
Sec. 11. Conservation program; public policy; rules.
(a) The Department, with the advice of the Board, shall
actively plan and implement a program for the conservation of
endangered and threatened species, by means which should
include published data search, research, management,
cooperative agreements with other agencies, identification,
protection and acquisition of essential habitat, support of
beneficial legislation, issuance of grants from appropriated
funds, and education of the public.
(b) It is the public policy of all agencies of State and
local governments to utilize their authorities in furtherance
of the purposes of this Act by evaluating through a
consultation process with the Department whether actions
authorized, funded, or carried out by them are likely to
jeopardize the continued existence of Illinois listed
endangered and threatened species or are likely to result in
the destruction or adverse modification of the designated
essential habitat of such species, which policy shall be
enforceable only by writ of mandamus; and where a State or
local agency does so consult in furtherance of this public
policy, such State or local agency shall be deemed to have
complied with its obligations under the "Illinois Endangered
Species Act", provided the agency action shall not result in
the killing or injuring of any Illinois listed animal
species, or provided that authorization for taking a listed
species has been issued under Section 4, 5, or 5.5 of this
Act. This paragraph (b) shall not apply to any project of
a State agency on which a biological opinion has been issued
(in accordance with Section 7 of the Federal Endangered
Species Act) prior to the effective date of this amendatory
Act of 1985 stating that the action proposed by said project
will not jeopardize the continued existence of any federal
listed endangered or threatened species.
(c) The Department shall have the authority to adopt
such rules as are reasonable and necessary to implement the
provisions of this Act.
(Source: P.A. 84-1065.)
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