§195D-4  Endangered species and threatened
species.  (a)  Any species of aquatic life, wildlife, or land plant that
has been determined to be an endangered species pursuant to the Endangered
Species Act shall be deemed to be an endangered species under this chapter and
any indigenous species of aquatic life, wildlife, or land plant that has been
determined to be a threatened species pursuant to the Endangered Species Act
shall be deemed to be a threatened species under this chapter.  The department
may determine, in accordance with this section, however, that any such
threatened species is an endangered species throughout all or any portion of
the range of such species within this State.



(b)  In addition to the species that have been
determined to be endangered or threatened pursuant to the Endangered Species
Act, the department, by rules adopted pursuant to chapter 91, may determine any
indigenous species of aquatic life, wildlife, or land plant to be an endangered
species or a threatened species because of any of the following factors:



(1)  The present or threatened destruction,
modification, or curtailment of its habitat or range;



(2)  Overutilization for commercial, sporting,
scientific, educational, or other purposes;



(3)  Disease or predation;



(4)  The inadequacy of existing regulatory mechanisms;
or



(5)  Other natural or artificial factors affecting its
continued existence within Hawaii.



(c)  The department shall make determinations
required by subsection (b) on the basis of all available scientific, commercial,
and other data after consultation, as appropriate, with federal agencies, other
interested state and county agencies, and interested persons and organizations.



(d)  The department shall issue rules
containing a list of all species of aquatic life, wildlife, and land plants
that have been determined, in accordance with subsections (a) to (c), as
endangered species and a list of all such species so designated as threatened
species.  Each list shall include the scientific, common, and Hawaiian names,
if any, and shall specify with respect to each such species over what portion
of its range it is endangered or threatened.



Except with respect to species of aquatic life,
wildlife, or land plants determined to be endangered or threatened pursuant to
the Endangered Species Act, the department, upon its own recommendation or upon
the petition of three interested persons who have presented to the department
substantial evidence that warrants review, shall conduct a review of any listed
or unlisted indigenous species proposed to be removed from or added to the
lists published pursuant to this subsection.



(e)  With respect to any threatened or
endangered species of aquatic life, wildlife, or land plant, it is unlawful,
except as provided in subsections (f), (g), and (j) for any person to:



(1)  Export any such species from this State;



(2)  Take any such species within this State;



(3)  Possess, process, sell, offer for sale, deliver,
carry, transport, or ship, by any means whatsoever, any such species;



(4)  Violate any rule pertaining to the conservation
of the species listed pursuant to this section and adopted by the department
pursuant to this chapter; or



(5)  Violate the terms of, or fail to fulfill the
obligations imposed and agreed to under, any license issued under subsection
(f), (g), or (j) any habitat conservation plan authorized under section
195D-21, or any safe harbor agreement authorized under section 195D-22.



(f)  The department may issue temporary
licenses, under such terms and conditions as it may prescribe, to allow any act
otherwise prohibited by subsection (e), for scientific purposes or to enhance
the propagation or survival of the affected species.



(g)  After consultation with the endangered
species recovery committee, the board may issue a temporary license as a part
of a habitat conservation plan to allow a take otherwise prohibited by
subsection (e) if the take is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity; provided that:



(1)  The applicant, to the maximum extent practicable,
shall minimize and mitigate the impacts of the take;



(2)  The applicant shall guarantee that adequate
funding for the plan will be provided;



(3)  The applicant shall post a bond, provide an
irrevocable letter of credit, insurance, or surety bond, or provide other
similar financial tools, including depositing a sum of money in the endangered
species trust fund created by section 195D-31, or provide other means approved
by the board, adequate to ensure monitoring of the species by the State and to
ensure that the applicant takes all actions necessary to minimize and mitigate
the impacts of the take;



(4)  The plan shall increase the likelihood that the
species will survive and recover;



(5)  The plan takes into consideration the full range
of the species on the island so that cumulative impacts associated with the
take can be adequately assessed;



(6)  The measures, if any, required under section
195D-21(b) shall be met, and the department has received any other assurances
that may be required so that the plan may be implemented;



(7)  The activity, which is permitted and facilitated
by issuing the license to take a species, does not involve the use of submerged
lands, mining, or blasting;



(8)  The cumulative impact of the activity, which is
permitted and facilitated by the license, provides net environmental benefits;
and



(9)  The take is not likely to cause the loss of
genetic representation of an affected population of any endangered, threatened,
proposed, or candidate plant species.



Board approval shall require an affirmative vote of
not less than two-thirds of the authorized membership of the board after
holding a public hearing on the matter on the affected island.  The department
shall notify the public of a proposed license under this section through
publication in the periodic bulletin of the office of environmental quality
control and make the application and proposed license available for public
review and comment for not less than sixty days prior to approval.



(h)  Licenses issued pursuant to this section
may be suspended or revoked for due cause, and if issued pursuant to a habitat
conservation plan or safe harbor agreement, shall run with the land for the
term agreed to in the plan or agreement and shall not be assignable or
transferable separate from the land.  Any person whose license has been revoked
shall not be eligible to apply for another license until the expiration of two
years from the date of revocation.



(i)  The department shall work cooperatively
with federal agencies in concurrently processing habitat conservation plans,
safe harbor agreements, and incidental take licenses pursuant to the Endangered
Species Act.  After notice in the periodic bulletin of the office of
environmental quality control and a public hearing on the islands affected,
which shall be held jointly with the federal agency, if feasible, whenever a
landowner seeks both a federal and a state safe harbor agreement, habitat
conservation plan, or incidental take license, the board, by a two-thirds
majority vote, may approve the federal agreement, plan, or license without
requiring a separate state agreement, plan, or license if the federal
agreement, plan, or license satisfies, or is amended to satisfy, all the
criteria of this chapter.  All state agencies, to the extent feasible, shall
work cooperatively to process applications for habitat conservation plans and
safe harbor agreements on a consolidated basis including concurrent processing
of any state land use permit application that may be required pursuant to
chapter 183C or 205, so as to minimize procedural burdens upon the applicant.



(j)  Subsection (e) and any other provision of
law to the contrary notwithstanding, the department shall adopt rules in
accordance with chapter 91 authorizing the propagation, possession, ownership,
and sale of selected endangered and threatened land plant species grown from
cultivated nursery stock and not collected or removed from the wild. [L 1975, c
65, pt of §1; am L 1983, c 111, §5; am L 1997, c 380, §4 and c 381, §2; am L
1998, c 237, §1; am L 2004, c 144, §2]



 



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.



 



Revision Note



 



  Subsection (j) redesignated pursuant to §23G-15(1).



 



Cross References



 



  Interim rules, see §195D-6.5.



 



Case Notes



 



  Destruction of habitat not covered by statute.  538 F. Supp.
149.