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91_HB2243eng HB2243 Engrossed LRB9104899DHmg 1 AN ACT to amend the Illinois Endangered Species 2 Protection Act. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Illinois Endangered Species Protection 6 Act is amended by adding Section 5.5 and changing Section 11 7 as follows: 8 (520 ILCS 10/5.5 new) 9 Sec. 5.5. Incidental taking. 10 (a) The Department may authorize, under prescribed terms 11 and conditions, any taking otherwise prohibited by Section 3 12 if that taking is incidental to, and not the purpose of, the 13 carrying out of an otherwise lawful activity. No taking 14 under this Section shall be authorized by the Department 15 unless the applicant submits to the Department a conservation 16 plan. 17 (b) The conservation plan shall include but not be 18 limited to the following: 19 (1) a description of the impact that the proposed 20 taking is likely to have on one or more species on the 21 Illinois list; 22 (2) the steps the applicant or other parties will 23 take to minimize and mitigate that impact and the funding 24 that will be available to implement those steps, 25 including but not limited to bonds, insurance, or escrow; 26 (3) what alternative actions to the taking the 27 applicant considered and the reasons why those 28 alternatives will not be used; 29 (4) data and information to assure that the 30 proposed taking will not reduce the likelihood of the 31 survival or recovery of the endangered species or HB2243 Engrossed -2- LRB9104899DHmg 1 threatened species in the wild within the State of 2 Illinois, the biotic community of which the species is a 3 part, or the habitat essential to the species' existence 4 in Illinois; 5 (5) an implementing agreement that specifically 6 names, and describes the obligations and responsibilities 7 of, all the parties that will be involved in the taking 8 as authorized by the permit; and 9 (6) any other measures that the Department may 10 require as being necessary or appropriate for purposes of 11 the plan. 12 (c) After reviewing the application for incidental 13 taking and the conservation plan, the Department may 14 authorize the incidental taking if the Department finds, in a 15 written decision explaining its conclusions, that the taking 16 will meet all of the following requirements: 17 (1) the taking will not be the purpose of, but will 18 be only incidental to, the carrying out of an otherwise 19 lawful activity; 20 (2) the parties to the conservation plan will, to 21 the maximum extent practicable, minimize and mitigate the 22 impact caused by the taking; 23 (3) the parties to the conservation plan will 24 ensure that adequate funding for the conservation plan 25 will be provided; 26 (4) based on the best available scientific data, 27 the Department has determined that the taking will not 28 reduce the likelihood of the survival or recovery of the 29 endangered species or threatened species in the wild 30 within the State of Illinois, the biotic community of 31 which the species is a part, or the habitat essential to 32 the species' existence in Illinois; 33 (5) any measures required under paragraph (6) of 34 subsection (b) of this Section will be performed; and HB2243 Engrossed -3- LRB9104899DHmg 1 (6) the public has received notice of the 2 application and has had the opportunity to comment before 3 the Department made any decision regarding the 4 application. 5 (d) The Department may require that a party to the 6 conservation plan make additional assurances that the 7 requirements under items (b)(1) through (b)(6) of this 8 Section will be met before authorizing incidental taking. 9 (e) The Department shall impose on the authorization for 10 incidental taking any terms or conditions that the Department 11 finds necessary to ensure that the requirements under items 12 (b)(1) through (b)(6) of this Section will be met. These 13 terms or conditions may include but are not limited to 14 reporting or monitoring requirements. 15 (f) If an applicant is party to a Habitat Conservation 16 Plan approved by the U.S. Fish and Wildlife Service pursuant 17 to Section 10 of the Endangered Species Act of 1973, P.L. 18 93-205, and amendments thereto, the Department may authorize 19 taking that is incidental to the carrying out of an otherwise 20 lawful activity. Authorization shall be issued only if the 21 provisions of the Habitat Conservation Plan are found to meet 22 the requirements set forth in subsection (c) of this Section. 23 (g) If an applicant has been authorized to take an 24 endangered or threatened species under the terms of a 25 biological opinion issued by the U.S. Fish and Wildlife 26 Service pursuant to Section 7 of the Endangered Species Act 27 of 1973, P.L. 93-205, and amendments thereto or regulations 28 implementing Section 7 (50 CFR Part 402), the Department may 29 authorize taking that is incidental to the carrying out of an 30 otherwise lawful activity. Authorization shall be issued 31 only if the Department finds that the taking will not reduce 32 the likelihood of the survival or recovery of the endangered 33 species or threatened species in the wild within the State of 34 Illinois, the biotic community of which the species is a HB2243 Engrossed -4- LRB9104899DHmg 1 part, or the habitat essential to the species' existence in 2 Illinois. 3 (520 ILCS 10/11) (from Ch. 8, par. 341) 4 Sec. 11. Conservation program; public policy; rules. 5 (a) The Department, with the advice of the Board, shall 6 actively plan and implement a program for the conservation of 7 endangered and threatened species, by means which should 8 include published data search, research, management, 9 cooperative agreements with other agencies, identification, 10 protection and acquisition of essential habitat, support of 11 beneficial legislation, issuance of grants from appropriated 12 funds, and education of the public. 13 (b) It is the public policy of all agencies of State and 14 local governments to utilize their authorities in furtherance 15 of the purposes of this Act by evaluating through a 16 consultation process with the Department whether actions 17 authorized, funded, or carried out by them are likely to 18 jeopardize the continued existence of Illinois listed 19 endangered and threatened species or are likely to result in 20 the destruction or adverse modification of the designated 21 essential habitat of such species, which policy shall be 22 enforceable only by writ of mandamus; and where a State or 23 local agency does so consult in furtherance of this public 24 policy, such State or local agency shall be deemed to have 25 complied with its obligations under the "Illinois Endangered 26 Species Act", provided the agency action shall not result in 27 the killing or injuring of any Illinois listed animal species 28 , or provided that authorization for taking a listed species 29 has been issued under Section 4, 5, or 5.5 of this Act. 30 This paragraph (b) shall not apply to any project of a State 31 agency on which a biological opinion has been issued (in 32 accordance with Section 7 of the Federal Endangered Species 33 Act) prior to the effective date of this amendatory Act of HB2243 Engrossed -5- LRB9104899DHmg 1 1985 stating that the action proposed by said project will 2 not jeopardize the continued existence of any federal listed 3 endangered or threatened species. 4 (c) The Department shall have the authority to adopt 5 such rules as are reasonable and necessary to implement the 6 provisions of this Act. 7 (Source: P.A. 84-1065.)