Protecting Endangered Species and Habitats

Non-Game Fish and Wildlife Laws

New Hampshire’s Fish and Game Department has the authority to regulate the “taking, possession, and handling of nongame species” for their protection and proliferation (N.H. Rev. Stat. Ann. § 212-B:4). A nongame management program must be implemented to further these goals (N.H. Rev. Stat. Ann. § 212-B:5(I)). This program may include the following elements: public education about nongame species, research regarding species’ population and distribution, and “[m]anagement measures to maintain and promote the health of self-sustaining nongame populations.” (N.H. Rev. Stat. Ann. § 212-B:5(I)(a)-(c)).

New Hampshire’s state treasurer is required to establish a separate account within the fish and game fund, specifically for nongame species (N.H. Rev. Stat. Ann. § 212-B:6(I)). The account is funded by monies received by the Fish and Game Department, available federal monies, appropriated state funds, and public contributions (N.H. Rev. Stat. Ann. § 212-B:6(I)).

Threatened and Endangered Species Laws

New Hampshire offers protection to both endangered plants and wildlife, with provisions regulating plants and animals located in separate statutes. The Endangered Species Conservation Act (ESCA) (N.H. Rev. Stat. Ann. §§ 212-A:1, et seq.). governs native wildlife species, and the New Hampshire Native Plant Protection Act (N.H. Rev. Stat. Ann. §§ 217-A:1, et seq.) governs native plant species.

Under the ESCA, the Fish and Game Department must conduct studies regarding the population, range, habitat needs, and distribution of native wildlife species (N.H. Rev. Stat. Ann. § 212-A:5(I)). This information is to be used to develop rules and conservation programs “designed to insure the continued ability of wildlife species deemed in need of conservation to perpetuate themselves successfully.” (N.H. Rev. Stat. Ann. § 212-A:5(I)). If a species is threatened or endangered under the Act, the ESCA prohibits its exportation, taking, possession, processing, transportation, or sale (N.H. Rev. Stat. Ann. § 212-A:7(I)(a)-(c)). The Act does not apply to marine or estuarine species of wildlife (N.H. Rev. Stat. Ann. § 212-A:13).

Similarly, under the Native Plant Protection Act, the Commissioner of the Department of Resources and Economic Development must conduct investigations on indigenous plants relating to “population, distribution, habitat needs, limiting factors, and other biological and ecological data,” and must determine protective measures and requirements necessary for their survival.” (N.H. Rev. Stat. Ann. § 217-4). The Department must also create rules regarding the development of conservation programs for enhanced native plant protection (N.H. Rev. Stat. Ann. § 217-A:8). The Act prohibits any person from exporting, importing, transporting, taking, possessing, selling or delivering a protected plant species without the proper permits, with an exception is created for the owner of the private property on which the species is located (N.H. Rev. Stat. Ann. § 217-A:9(I)(a)-(d)).

    Basis of Listing

Any species determined to be threatened or endangered under the federal Endangered Species Act is deemed to be threatened or endangered under the ESCA. The ESCA also gives the Department of Fish and Game the authority to determine that a federally-listed threatened species is an endangered species throughout all or any portion of the range of the species within the state (N.H. Rev. Stat. Ann. § 212-A:6(I)).

The Department may also determine other species of wildlife normally occurring within the state to be endangered or threatened based on the following factors: “present or threatened destruction, modification or curtailment of its habitat or range,” overuse of species for commercial, recreational, scientific, or educational purposes, disease, predation, and “[o]ther natural or man-made factors affecting its continued existence within [the] state.” (N.H. Rev. Stat. Ann. § 212-A:6(II)(a)-(d)).

With respect to plants, the Department of Resources and Economic Development is required to create an inventory of native plant species “which are threatened by the loss, drastic modification, or severe curtailment of their habitats, [or] their over-collection for aesthetic, commercial, educational, recreational, or scientific purposes….” (N.H. Rev. Stat. Ann. § 217-A:5(I)). The Department must make the determination as to which species to include “solely on the basis of the best scientific and commercial information available” and after appropriate consultation (N.H. Rev. Stat. Ann. § 217-A:5(II)).

Interested parties may present a petition along with substantial evidence of population loss if they believe a plant species that is not on the federal list should be listed as a protected species within New Hampshire (N.H. Rev. Stat. Ann. § 217-A:5(IV)). Each plant species listed as threatened or endangered is reviewed by the department every five years to determine whether its classification should be altered (N.H. Rev. Stat. Ann. § 217-A:5(IV)).

    Regulatory Protection of Special Habitat Areas that Mention Endangered or At-Risk Species

The preservation of habitats necessary to sustain threatened and endangered species is mentioned briefly in the ESCA. The Act directs the Department of Fish and Game to develop conservation programs for listed wildlife species, including the acquisition of “land or aquatic habitat therein” as deemed necessary for the conservation of these species (N.H. Rev. Stat. Ann. § 212-A:9(I)).

The Department of Resources and Economic Development is required to create programs to protect listed plant species, and may include in such programs the acquisition of land or interests in land for the protection of those species (N.H. Rev. Stat. Ann. § 217-A:6(I)).

    Consultation Requirements

Under the ESCA, listing determinations must be made after consultation with federal and state agencies, other states, and organizations that have a shared interest in a particular species (N.H. Rev. Stat. Ann. § 212-A:6(III)).

With regard to native plants, the Department of Resources and Economic Development may not make listing decisions without first consulting with the Natural Areas Council. The Department must also consult with federal and state agencies, other states, and organizations that have a shared interest in a particular species before listing decisions are finalized (N.H. Rev. Stat. Ann. § 217-A:5(II)).

    Recovery Plans

    Penalties

Individuals who infringe upon the ESCA are guilty of either a violation or misdemeanor depending upon the provision implicated (N.H. Rev. Stat. Ann. § 212-A:10).

Similar infringements of the Native Plant Protection Act constitute a violation (N.H. Rev. Stat. Ann. § 217-A:11). Each “prohibited act with respect to each plant” is a separate violation (N.H. Rev. Stat. Ann. § 217-A:11).

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