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<br />which the take of endangered or threatened freshwater mussels could not be avoided. In all cases, the
<br />proposer of the activity was a utility company, a large city, a county, or the Minnesota Department of
<br />Transportation. In most cases, the project proposer was required to remove and transplant the mussels
<br />to a nearby location, an expense bourne by the proposer of the activity. The DNR does not know the
<br />actual cost of these mitigation actions, but a typical mussel relocation project costs $5,000 - $60,000.
<br />In four recent cases, the DNR chose to apply the cost of mussel relocation to other mussel
<br />conservation activities. These mitigation payments ranged from $43,993 to $90,000.
<br />An additional 20 takings permits have been issued in the past decade for proposed projects in which
<br />the take of endangered or threatened plants could not be avoided. In all cases, the proposer of the
<br />activity was a land development, utility, mining, or waste management company, a county, an airport
<br />authority, or the Minnesota Department of Transportation. In several of these cases, experimental
<br />relocation of the plants was accepted as mitigation, but in most cases, compensatory mitigation was
<br />accepted by the DNR in the form of funds necessary to acquire and protect land supporting a plant
<br />population equivelant to the population to be taken by the project. Depending upon land values and
<br />the size of the plant population to be taken, the cost of compensatory mitigation in these cases has
<br />ranged from $12,000 to $500,000.
<br />The proposed rules will also have an impact on a limited number of small businesses engaging in the
<br />prohibited acts of taking, importing, transporting, selling, purchasing, disposing, or possessing any
<br />portion of a species proposed as endangered or threatened in this rulemaking. These businesses may
<br />include taxidermists, pet dealers, craftspersons, tree nurseries, landscapers, and loggers. Such
<br />businesses may be asked to consult with the DNR to modify their activity to avoid or minimize the
<br />taking of an endangered or threatened species, may be required to apply for a permit to continue the
<br />activity, or may be prohibited from conducting the activity. While a permit is currently provided at no
<br />cost to the recipient, modification or prohibition of the activity may result in a cost to these
<br />businesses. The DNR has no effective way in which to estimate this cost.
<br />Probable Cost or Consequences of Not Adopting the Proposed Rules
<br />The consequence of not adopting the proposed rules would be that the species that are the subject of
<br />the proposed rule would not receive the protection and attention they warrant, and the DNR would
<br />default on its responsibility to designate species as endangered, threatened, or of special concern as
<br />mandated in Minn. Stat., sec. 84.0895.
<br />Assessment of Differences between the Proposed Rules and Existing Federal Regulations
<br />The federal Endangered Species Act (16 USC 1531 -1544) requires the U.S. Department of Interior to
<br />designate species as endangered or threatened according to a set of definitions and criteria that are
<br />distinct from those in state law. Federal designation reflects a species' at -risk status at the regional,
<br />national, or global scale, while designation in the proposed rule considers a species' status at only the
<br />state scale, regardless of the species' status outside of Minnesota. This difference in scale of analysis
<br />is needed and reasonable, since the intent of state law is to prevent extinction of a species within
<br />Minnesota, while the intent of federal designation is to prevent extinction at the regional, national, or
<br />global scale.
<br />Assessment of the Cumulative Effect of the Proposed Rules with Other Federal and State
<br />Regulations
<br />For this assessment, "cumulative effect" means the incremental impact of the proposed rule in
<br />addition to other rules, regardless of what state or federal agency has adopted the other rules.
<br />Cumulative effects can result from individually minor but collectively significant rules adopted over a
<br />period of time.
<br />The proposed rule has no cumulative effect with any other state or federal regulation. No other state
<br />regulation specifically designates species as endangered, threatened, or of special concern, but
<br />designation of a species as endangered or threatened (E /T) grants the species regulatory protection,
<br />and other state laws also afford regulatory protection to certain species. Most prominently, Minn.
<br />Stat. sec. 97A.015, subd. 39 designates most vertebrates as "protected wild animal(s)," and Minn.
<br />Stat. sec. 97A.405 provides some regulatory protection to those species. However, the protection
<br />given an E/T species is not cumulative with the protection given a protected wild animal, but rather is
<br />Proposed Amendment of Minnesota Rules, Chapter 6134: Endangered and Threatened Species
<br />Statement of Need and Reasonableness: August 10, 2012
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