[§195D-23]  Incentives.  (a) After approval of a habitat conservation plan or safe harbor agreement, orissuance of an incidental take license pursuant to this chapter, no agencies ordepartments of the State, in order to protect a threatened or endangeredspecies, may impose any new requirements or conditions on, or modify anyexisting requirements or conditions applicable to, a landowner or successor tothe landowner, to mitigate or compensate for changes in the conditions orcircumstances of any species or ecosystem, natural community, or habitatcovered by the plan, agreement, or license unless:

(1)  The landowner, or the landowner's successor,expressly consents to the requirement, condition, or modification;

(2)  The board has found, in accordance with thosespecial procedures agreed to by the board and the landowner, or in the absenceof any special procedures, in accordance with those procedures that govern thefindings generally, that:

(A)  The requirement, condition, ormodification does not impose any additional restriction on any parcel of landor body of water available for use or development under the plan or agreement;and

(B)  The requirement, condition, ormodification will not increase the cost to the landowner or other parties tothe plan or agreement of implementing the plan or agreement;

(3)  The department is prepared to exercise itsauthority to:

(A)  Pay the landowner for the costs of any newrequirement or condition or any modification of any existing requirement orcondition, which costs may be determined through binding arbitration; and

(B)  Take any other action to ensure that anyparty to the plan or agreement is not, without the party's consent, undulyburdened by the requirement, condition, or modification, in which case the departmentshall implement that necessary requirement, condition, or modification uponcommitting to pay the costs, mitigate the actions, or undertake the action;

(4)  The board has revoked the approval of the plan orrescinded the agreement in accordance with section 195D-21(d) or 195D-22(c); or

(5)  Extraordinary new circumstances or informationindicate that failure to modify the plan or agreement is likely to appreciablyreduce the likelihood of the survival or recovery of any threatened orendangered species in its natural habitat.  If additional mitigation measuresare subsequently deemed necessary to provide for the conservation of a speciesthat was otherwise adequately covered under the terms of a habitat conservationplan, safe harbor agreement, or incidental take license as a result ofextraordinary circumstances, the primary obligation for executing mitigationmeasures shall rest with the State, or the federal government with its consent,and not with the landowner.

(b)  Entry by a landowner into a habitatconservation plan or safe harbor agreement shall be voluntary.

(c)  The department may establish a landownercontact and recognition program that:

(1)  Contacts landowners who may have threatened orendangered species or their habitat on their land and that sends information onthe species or habitat in question.  If the landowner is willing, a nonbindingmemorandum of understanding may be signed, which states a general intention toprotect the species or habitat found on the land;

(2)  If available, provides participating landownerswith a current supply of information on the conservation of species and habitatfound on their land;

(3)  On an annual basis, recognizes one or moreprivate landowners who have demonstrated, through past and current efforts,sound conservation practices and principles on their land; and

(4)  On an annual basis, awards a private landownerparticipating in a habitat conservation plan an "Outstanding Participantof the Year" award.

(d)  The department may establish a habitatconservation technical assistance program to assist landowners in developinghabitat conservation plans by providing technical assistance.

(e)  Persons participating within voluntaryprograms under this chapter may receive consideration from the board to useadjacent public lands for commercial nature tourism activities that increasepublic education and support for endangered species; provided that an agreedpercentage of the fees charged for nature tourism activities shall be donatedto the trust fund to implement this chapter.

(f)  The execution of habitat conservationplans and safe harbor agreements under sections 195D-21 and 195D-22,respectively, shall, for the purposes of providing incentives and assistance tolandowners, be deemed to be a public purpose and in the public interest, andfor the general welfare of the State. [L 1997, c 380, pt of §2]