[PART II. RECOVERY]

 

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

(1)  The geographic area encompassed by the plan;

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

(3)  The endangered, threatened, proposed, andcandidate 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 toprotect, maintain, restore, or enhance those ecosystems, natural communities,or habitat types within the plan area;

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

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

After a habitat conservation plan is prepared, theboard shall notify the public of the proposed habitat conservation plan throughthe periodic bulletin of the office of environmental quality control and makethe proposed plan and the application available for public review and commentnot less than sixty days prior to approval.  The notice shall include, but notbe limited to, identification of the area encompassed by the plan, the proposedactivity, and the ecosystems, natural communities, and habitat types within theplan area.  The notice shall solicit public input and relevant data.

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

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

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

(C)  The plan satisfies all the requirements ofthis chapter.

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

(2)  Each habitatconservation plan shall:

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

(B)  Describe the activities contemplated to beundertaken within the plan area with sufficient detail to allow the departmentto evaluate the impact of the activities on the particular ecosystems, naturalcommunities, or habitat types within the plan area that are the focus of theplan;

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

(D)  Identify those measures or actions to beundertaken to protect, maintain, restore, or enhance the ecosystems, naturalcommunities, or habitat types within the plan area; a schedule for implementationof the measures or actions; and an adequate funding source to ensure that theactions or measures, including monitoring, are undertaken in accordance withthe schedule;

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

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

(G)  Contain objective, measurable goals, theachievement of which will contribute significantly to the protection,maintenance, restoration, or enhancement of the ecosystems, naturalcommunities, or habitat types; time frames within which the goals are to beachieved; provisions for monitoring (such as field sampling techniques),including periodic monitoring by representatives of the department or theendangered species recovery committee, or both; and provisions for evaluatingprogress in achieving the goals quantitatively and qualitatively; and

(H)  Provide for an adaptive managementstrategy that specifies the actions to be taken periodically if the plan is notachieving its goals.

(c)  The board shall disapprove a habitatconservation plan if the board determines, based upon the best scientific andother reliable data available at the time its determination is made, that thecumulative activities, if any, contemplated to be undertaken within the areascovered by the plan are not environmentally beneficial, or that implementationof the plan:

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

(2)  Is likely to cause any native species notendangered or threatened at the time of plan submission to become threatened orendangered;

(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 containsufficient information for the board to ascertain with reasonable certainty thelikely effect of the plan upon any endangered, threatened, proposed, orcandidate species in the plan area and throughout its habitat range.

(d)  Notwithstanding any other law to thecontrary, the board shall suspend or revoke the approval of any habitatconservation 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 agreementimplementing 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 willachieve its goals within the time frames or in the manner set forth in theplan;

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

(3)  Continuation of the permitted activity wouldappreciably reduce the likelihood of survival or recovery of any threatened orendangered species in the wild.

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

(f)  Participants in a habitat conservationplan shall submit an annual report to the department within ninety days of eachfiscal year ending June 30, that includes a description of activities andaccomplishments, analysis of the problems and issues encountered in meeting orfailing to meet the objectives set forth in the habitat conservation plan,areas needing technical advice, status of funding, and plans and managementobjectives for the next fiscal year, including any proposed modificationsthereto. [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, orincidental 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.