[PART II. 
RECOVERY]



 



§195D-21  Habitat conservation plans. 
(a)  The department may enter into a planning process with any landowner for
the purpose of preparing and implementing a habitat conservation plan.  An
agreement may include multiple landowners.  Applications to enter into a
planning process shall identify:



(1)  The geographic area encompassed by the plan;



(2)  The ecosystems, natural communities, or habitat
types within the plan area that are the focus of the plan;



(3)  The endangered, threatened, proposed, and
candidate species known or reasonably expected to occur in the ecosystems,
natural communities, or habitat types in the plan area;



(4)  The measures or actions to be undertaken to
protect, maintain, restore, or enhance those ecosystems, natural communities,
or habitat types within the plan area;



(5)  A schedule for implementation of the proposed
measures and actions; and



(6)  An adequate funding source to ensure that the
proposed measures and actions are undertaken in accordance with the schedule.



After a habitat conservation plan is prepared, the
board shall notify the public of the proposed habitat conservation plan through
the periodic bulletin of the office of environmental quality control and make
the proposed plan and the application available for public review and comment
not less than sixty days prior to approval.  The notice shall include, but not
be limited to, identification of the area encompassed by the plan, the proposed
activity, and the ecosystems, natural communities, and habitat types within the
plan area.  The notice shall solicit public input and relevant data.



(b)  (1)  Except
as otherwise provided by law, the board, upon recommendation from the
department, in cooperation with other state, federal, county, or private organizations
and landowners, after a public hearing on the island affected, and upon an
affirmative vote of not less than two-thirds of its authorized membership, may
enter into a habitat conservation plan, if it determines that:



(A)  The plan will further the purposes of this
chapter by protecting, maintaining, restoring, or enhancing identified
ecosystems, natural communities, or habitat types upon which endangered,
threatened, proposed, or candidate species depend within the area covered by
the plan;



(B)  The plan will increase the likelihood of
recovery of the endangered or threatened species that are the focus of the
plan; and



(C)  The plan satisfies all the requirements of
this chapter.



In the event
the board votes to enter into a habitat conservation plan for which the
majority of the endangered species recovery committee recommended disapproval,
the board may not enter into the habitat conservation plan unless the plan is
approved by a two-thirds majority vote of both houses of the legislature.  Habitat
conservation plans may allow conservation rental agreements, habitat banking,
and direct payments.  Any habitat conservation plan approved pursuant to this
section shall be based on the best available scientific and other reliable data
available at the time the plan is approved.



(2)  Each habitat
conservation plan shall:



(A)  Identify
the geographic area encompassed by the plan; the ecosystems, natural
communities, or habitat types within the plan area that are the focus of the
plan; and the endangered, threatened, proposed, and candidate species known or
reasonably expected to be present in those ecosystems, natural communities, or
habitat types in the plan area;



(B)  Describe the activities contemplated to be
undertaken within the plan area with sufficient detail to allow the department
to evaluate the impact of the activities on the particular ecosystems, natural
communities, or habitat types within the plan area that are the focus of the
plan;



(C)  Identify the steps that will be taken to
minimize and mitigate all negative impacts, including without limitation the
impact of any authorized incidental take, with consideration of the full range
of the species on the island so that cumulative impacts associated with the
take can be adequately assessed; and the funding that will be available to
implement those steps;



(D)  Identify those measures or actions to be
undertaken to protect, maintain, restore, or enhance the ecosystems, natural
communities, or habitat types within the plan area; a schedule for implementation
of the measures or actions; and an adequate funding source to ensure that the
actions or measures, including monitoring, are undertaken in accordance with
the schedule;



(E)  Be consistent with the goals and
objectives of any approved recovery plan for any endangered species or
threatened species known or reasonably expected to occur in the ecosystems,
natural communities, or habitat types in the plan area;



(F)  Provide reasonable certainty that the
ecosystems, natural communities, or habitat types will be maintained in the
plan area, throughout the life of the plan, in sufficient quality,
distribution, and extent to support within the plan area those species
typically associated with the ecosystems, natural communities, or habitat
types, including any endangered, threatened, proposed, and candidate species
known or reasonably expected to be present in the ecosystems, natural
communities, or habitat types within the plan area;



(G)  Contain objective, measurable goals, the
achievement of which will contribute significantly to the protection,
maintenance, restoration, or enhancement of the ecosystems, natural
communities, or habitat types; time frames within which the goals are to be
achieved; provisions for monitoring (such as field sampling techniques),
including periodic monitoring by representatives of the department or the
endangered species recovery committee, or both; and provisions for evaluating
progress in achieving the goals quantitatively and qualitatively; and



(H)  Provide for an adaptive management
strategy that specifies the actions to be taken periodically if the plan is not
achieving its goals.



(c)  The board shall disapprove a habitat
conservation plan if the board determines, based upon the best scientific and
other reliable data available at the time its determination is made, that the
cumulative activities, if any, contemplated to be undertaken within the areas
covered by the plan are not environmentally beneficial, or that implementation
of the plan:



(1)  Is likely to jeopardize the continued existence
of any endangered, threatened, proposed, or candidate species identified in the
plan area;



(2)  Is likely to cause any native species not
endangered or threatened at the time of plan submission to become threatened or
endangered;



(3)  Fails to meet the criteria of subsections (a) and
(b); or



(4)  Fails to meet the criteria of section 195D-4(g).



The habitat conservation plan shall contain
sufficient information for the board to ascertain with reasonable certainty the
likely effect of the plan upon any endangered, threatened, proposed, or
candidate species in the plan area and throughout its habitat range.



(d)  Notwithstanding any other law to the
contrary, the board shall suspend or revoke the approval of any habitat
conservation plan approved under this section if the board determines that:



(1)  Any parties to the plan, or their successors,
have breached their obligations under the plan or under any agreement
implementing the plan and have failed to cure the breach in a timely manner,
and the effect of the breach is to diminish the likelihood that the plan will
achieve its goals within the time frames or in the manner set forth in the
plan;



(2)  The plan no longer has the funding source
specified in subsection (a) or another sufficient funding source to ensure the
measures or actions specified in subsection (b) are undertaken in accordance
with this section; or



(3)  Continuation of the permitted activity would
appreciably reduce the likelihood of survival or recovery of any threatened or
endangered species in the wild.



(e)  The rights and obligations under any
habitat conservation plan shall run with the land and shall be recorded by the
department in the bureau of conveyances or the land court, as may be
appropriate.



(f)  Participants in a habitat conservation
plan shall submit an annual report to the department within ninety days of each
fiscal year ending June 30, that includes a description of activities and
accomplishments, analysis of the problems and issues encountered in meeting or
failing to meet the objectives set forth in the habitat conservation plan,
areas needing technical advice, status of funding, and plans and management
objectives for the next fiscal year, including any proposed modifications
thereto. [L 1997, c 380, pt of §2; am L 1998, c 237, §2; am L 2003, c 35, §4;
am L 2004, c 10, §6]



 



Note



 



  No new safe harbor agreements, habitat conservation plans, or
incidental take licenses shall be approved or issued subsequent to July 1, 2012. 
L 1997, c 380, §13; L 2001, c 3, §1; L 2006, c 90, §1.