§195D-22  Safe harbor agreements.  (a) 
To encourage landowners to voluntarily engage in efforts that benefit
endangered, threatened, proposed, and candidate species, except as otherwise
provided by law, the board, upon approval by not less than two-thirds of the
board's authorized membership, after a public hearing on the island affected,
may enter into a safe harbor agreement with one or more landowners to create,
restore, or improve habitats or to maintain currently unoccupied habitats that
threatened or endangered species can be reasonably expected to use, if the
board determines that the cumulative activities, if any, contemplated to be
undertaken within the areas covered by the agreement are environmentally
beneficial.  In the event the board votes to enter into a safe harbor agreement
for which the majority of the endangered species recovery committee recommended
disapproval, the board may not enter into the safe harbor agreement unless the
agreement is approved by a two-thirds majority vote of both houses of the
legislature.  The board shall notify the public of the proposed safe harbor
agreement through the periodic bulletin of the office of environmental quality
control and make the proposed agreement available for public review and comment
not less than sixty days prior to approval.



(b)  A safe harbor agreement may authorize the
take of an endangered, threatened, proposed, or candidate species incidental to
an otherwise lawful activity in or affecting the created, restored, maintained,
or improved habitat; provided that based on the best scientific and other
reliable data available at the time the safe harbor agreement is approved, if
these data are applicable:



(1)  The take would not jeopardize the continued
existence of any endangered, threatened, proposed, or candidate species;



(2)  The take would not reduce the population of
endangered, threatened, proposed, or candidate species below the number found
on the property prior to entering into the agreement;



(3)  The agreement proposes to create, restore,
maintain, or improve significant amounts of habitat for a minimum of five years
for private lands and for a minimum of fifteen years for public lands;



(4)  There is adequate funding for the agreement and
the source of that funding is identified;



(5)  The safe harbor agreement increases the
likelihood that the endangered or threatened species for which a take is
authorized will recover;



(6)  Any take authorized pursuant to this subsection
shall occur only in the habitat created, restored, maintained, or improved; and



(7)  The cumulative impact of the activity, which is
permitted and facilitated by the take, provides net environmental benefits.



(c)  Notwithstanding any other law to the
contrary, the board shall suspend or rescind any safe harbor agreement approved
under this section if the board determines that:



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



(2)  To the extent that funding is or will be
required, the funding source specified in subsection (b) no longer exists and
is not replaced by another sufficient funding source to ensure that 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.



(d)  The rights and obligations under any safe
harbor agreement shall run with the land for the term agreed to in the
agreement and shall be recorded by the department in the bureau of conveyances
or the land court, as may be appropriate. [L 1997, c 380, pt of §2; am L 1998,
c 237, §3; am L 2003, c 35, §5]



 



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.



 



Law Journals and Reviews



 



  Safe Harbor Agreements Under the Endangered Species Act:  Are
They Right for Hawai`i?  23 UH L. Rev. 507.