The goal of the Federal Endangered Species Act (“ESA”) of 1973 is to create conservation programs and incentive systems to safeguard the nation’s fish, wildlife, and plants. The U.S. Fish and Wildlife Service (“USFWS”) is tasked with overseeing ESA regulations. New York’s various laws and regulations related to water pollution, waste management, and pesticides are tailored to protect wildlife, aquatic life, and their habitats.
The New York Fish and Wildlife Law (“FWL”) and regulations prohibit the possession, importation, or sale of certain wildlife. The FWL gives the New York Department of Environmental Conservation (“DEC”) the authority to regulate fish and wildlife resources while also enforcing fishing and hunting laws. Farmers hunting or fishing on their own farmland are exempt from NYDEC licensing requirements. See N.Y. Envtl. Conserv. Law §§ 11-0707. However, in accordance with the ESA and FWL, farmers may not kill, take, or wound any protected fish or wildlife on their farmland or elsewhere.
Farmers must also consider whether modifications made to farmland are considered a prohibited “taking” of protected animals. Under the ESA, the term “take” includes harassing or harming. See 16 U.S.C. § 1532(19). Therefore, such modifications that negatively affect the habitat of an endangered species may constitute a taking.