§195D-22  Safe harbor agreements.  (a) To encourage landowners to voluntarily engage in efforts that benefitendangered, threatened, proposed, and candidate species, except as otherwiseprovided by law, the board, upon approval by not less than two-thirds of theboard'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 thatthreatened or endangered species can be reasonably expected to use, if theboard determines that the cumulative activities, if any, contemplated to beundertaken within the areas covered by the agreement are environmentallybeneficial.  In the event the board votes to enter into a safe harbor agreementfor which the majority of the endangered species recovery committee recommendeddisapproval, the board may not enter into the safe harbor agreement unless theagreement is approved by a two-thirds majority vote of both houses of thelegislature.  The board shall notify the public of the proposed safe harboragreement through the periodic bulletin of the office of environmental qualitycontrol and make the proposed agreement available for public review and commentnot less than sixty days prior to approval.

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

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

(2)  The take would not reduce the population ofendangered, threatened, proposed, or candidate species below the number foundon 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 yearsfor private lands and for a minimum of fifteen years for public lands;

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

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

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

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

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

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

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

(d)  The rights and obligations under any safeharbor agreement shall run with the land for the term agreed to in theagreement and shall be recorded by the department in the bureau of conveyancesor 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, 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.

 

Law Journals and Reviews

 

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