§ 5408. Authorized takings; incidental takings; destruction of critical habitat
(a) Authorized taking. Notwithstanding any provision of this chapter, after obtaining the advice of the Endangered
Species Committee, the Secretary may permit, under such terms and conditions as the
Secretary may require as necessary to carry out the purposes of this chapter, the
taking of a threatened or endangered species, the destruction of or adverse impact
on critical habitat, or any act otherwise prohibited by this chapter if done for any
of the following purposes:
(1) scientific purposes;
(2) to enhance the propagation or survival of a threatened or endangered species;
(3) zoological exhibition;
(4) educational purposes;
(5) noncommercial cultural or ceremonial purposes; or
(6) special purposes consistent with the purposes of the federal Endangered Species Act.
(b) Incidental taking. After obtaining the advice of the Endangered Species Committee, the Secretary may
permit, under such terms and conditions as necessary to carry out the purposes of
this chapter, the incidental taking of a threatened or endangered species or the destruction
of or adverse impact on critical habitat if:
(1) the taking is necessary to conduct an otherwise lawful activity;
(2) the taking is attendant or secondary to, and not the purpose of, the lawful activity;
(3) the impact of the permitted incidental take is minimized; and
(4) the incidental taking will not impair the conservation or recovery of any endangered
species or threatened species.
(c) Transport through State. Nothing in this chapter shall prevent a person who holds a proper permit from the
federal government or any other state from transporting a member of a threatened or
endangered species from a point outside this State through the State.
(d) Possession. Nothing in this chapter shall prevent a person from possessing in this State wildlife
or wild plants that are not determined to be “endangered” or “threatened” under the
federal Endangered Species Act where the possessor is able to produce substantial
evidence that the wildlife or wild plant was first taken or obtained in a place without
violating the law of that place, provided that an importation permit may be required
under section 4714 of this title or the rules of the Department of Fish and Wildlife.
(e) Interference with agricultural or silvicultural practices. No rule adopted under this chapter shall cause undue interference with farming, forestry
operations, or accepted silvicultural practices. This section shall not be construed
to exempt any person from the provisions of the requirements of this chapter. The
Secretary shall not adopt rules that affect farming, forestry operations, or accepted
silvicultural practices without first consulting the Secretary of Agriculture, Food
and Markets and the Commissioner of Forests, Parks and Recreation.
(f) Consistency with State law. Nothing in this chapter shall be interpreted to limit or amend the definitions and
applications of necessary habitat in chapter 151 of this title or in 30 V.S.A. chapter 5.
(g) Effect on federal law. Nothing in this section permits a person to violate any provision of federal law concerning
federally protected threatened or endangered species.
(h) Permit application. An applicant for a permit under this section shall submit an application to the Secretary
that includes the following information:
(1) a description of the activities that could lead to a taking of a listed threatened
or endangered species or the destruction of or adverse impact on critical habitat;
(2) the steps that the applicant has or will take to avoid, minimize, and mitigate the
impact to the relevant threatened or endangered species or critical habitat;
(3) a plan for ensuring that funding is available to conduct any required monitoring and
mitigation, if applicable;
(4) a summary of the alternative actions to the taking or destruction of critical habitat
that the applicant considered and the reasons that these alternatives were not selected,
if applicable;
(5) the name or names and obligations and responsibilities of the person or persons that
will be involved in the proposed taking or destruction of critical habitat; and
(6) any additional information that the Secretary may require.
(i) Permit fees.
(1) Fees to be charged to a person applying to take a threatened or endangered species
under this section shall be:
(A) to take for scientific purposes, to enhance the propagation or survival of the species,
noncommercial cultural or ceremonial purposes, or for educational purposes or special
purposes consistent with the federal Endangered Species Act, $50.00;
(B) to take for a zoological or botanical exhibition, $250.00 for each listed wildlife
or wild plant taken up to a maximum of $25,000.00; and
(C) for an incidental taking, $250.00 for each listed wildlife or wild plant taken up
to a maximum of $25,000.00.
(2) The Secretary may require the implementation of mitigation strategies and may collect
mitigation funds, in addition to the permit fees, in order to mitigate the impacts
of a taking or the destruction of or adverse impact on critical habitat. Mitigation
may include:
(A) a requirement to rectify the taking or adverse impact or to reduce the adverse impact
over time;
(B) a requirement to manage or restore land within the area of the proposed activity or
in an area outside the proposed area as habitat for the threatened or endangered species;
or
(C) compensation, including payment into the Threatened and Endangered Species Fund for
the uses of that Fund, provided that any payment is commensurate with the taking or
adverse impact proposed.
(3) Fees and mitigation payments collected under this subsection and interest on fees
and mitigation payments shall be deposited in the Threatened and Endangered Species
Fund and shall be used solely for expenditures of the Department of Fish and Wildlife
related to threatened and endangered species. Expenditures may be made for monitoring,
restoration, conservation, recovery, and the acquisition of property interests and
other purposes consistent with this chapter. Where practical, the fees collected for
takings shall be devoted to the conservation or recovery of the taken species or its
habitat. Interest accrued on the Fund shall be credited to the Fund.
(j) Permit term. A permit issued under this section shall be valid for the period of time specified
in the permit, not to exceed five years. A permit issued under this section may be
renewed upon application to the Secretary.
(k) Public notice. Except for threatened and endangered species listed by the Secretary in accordance
with subsection 5410(b) of this title, prior to issuing a permit for an incidental taking and prior to the initial issuance
or amendment of a general permit under this section, the Secretary shall provide for
public notice of not fewer than 30 days opportunity for written comment and opportunity
to request a public informational hearing. Except for threatened and endangered species
listed by the Secretary in accordance with subsection 5410(b) of this title, the Secretary shall post permit applications, permit decisions, and the initial
or amended general permits on the website of the Agency of Natural Resources. Except
for threatened and endangered species listed by the Secretary in accordance with subsection 5410(b) of this title, the Secretary also shall provide notice to interested persons who request notice
of permit applications, permit decisions, and proposed general permits or proposed
amendments to general permits.
(l) General permits.
(1) The Secretary may issue general permits for activities that will not affect the continued
survival or recovery of a threatened or endangered species.
(2) A general permit issued under this chapter shall contain those terms and conditions
necessary to ensure compliance with the provisions of this statute.
(3) These terms and conditions may include the implementation of best management practices
and the adoption of specific mitigation measures and required surveying, monitoring,
and reporting.
(4) The Secretary may issue a general permit to take a threatened or endangered species
or destroy or adversely impact critical habitat only if an activity or class of activities
satisfies one or more of the following criteria:
(A) the taking of a threatened or endangered species or the destruction of or adverse
impact on critical habitat is necessary to address an imminent risk to human health;
(B) a proposed taking of a threatened or endangered species or the destruction of or adverse
impact on critical habitat would enhance the overall long-term survival of the species;
or
(C) the Secretary has approved best management practices that are designed, when applied,
to minimize to the greatest extent possible the taking of a threatened or endangered
species or the destruction of or adverse impact on critical habitat.
(5) On or before September 1, 2017, the Secretary shall issue a general permit for vegetation
management and operational and maintenance activities conducted by a utility. The
general permit shall have a five-year term. A one-time application for coverage by
a utility shall be made for activities authorized by the general permit, and coverage
under the general permit shall be for the term of the general permit. Until the general
permit has been issued, no critical habitat designation for wild plants shall be made
in a utility right-of-way. As used in this subdivision (5), “utility” means an electric
company, telecommunication company, pipeline operator, or railroad company.
(6) Except for threatened and endangered species listed by the Secretary in accordance
with subsection 5410(b) of this title, prior to issuing an initial or amended general permit under this subsection, the
Secretary shall:
(A) post a draft of the general permit on the Agency website;
(B) provide public notice of at least 30 days; and
(C) provide for written comments or a public hearing, or both.
(7) For applications for coverage under the terms of an issued general permit, the applicant
shall provide notice on a form provided by the Secretary. Except for threatened and
endangered species listed by the Secretary in accordance with subsection 5410(b) of this title, the Secretary shall post notice of the application on the Agency website and shall
provide an opportunity for written comment, regarding whether the application complies
with the terms and conditions of the general permit, for 10 days following receipt
of the application.
(8) The Secretary may require any applicant for coverage under a general permit to submit
additional information that the Secretary considers necessary and may refuse to approve
coverage under the terms of a general permit until the information is furnished and
evaluated.
(9) The Secretary may require any applicant for coverage under a general permit to seek
an individual permit under this section if the applicant does not qualify for coverage.
(10) The Secretary may require a person operating under a general permit issued under this
section to obtain an individual permit under this section if the person proposes to
destroy or adversely impact critical habitat that was designated under section 5402a of this title after issuance of the general permit, unless existing best management practices approved
under the general permit adequately protect the critical habitat or have been amended
to do so prior to the critical habitat designation pursuant to section 5402a of this title. (Added 1981, No. 188 (Adj. Sess.), § 2; amended 1985, No. 192 (Adj. Sess.), §§ 3, 4; 2003, No. 163 (Adj. Sess.), § 17; 2011, No. 128 (Adj. Sess.), § 35; 2013, No. 116 (Adj. Sess.), § 12; 2015, No. 145 (Adj. Sess.), § 27; 2025, No. 47, § 17, eff. July 1, 2025.)