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

(b)  In addition to the species that have beendetermined to be endangered or threatened pursuant to the Endangered SpeciesAct, the department, by rules adopted pursuant to chapter 91, may determine anyindigenous species of aquatic life, wildlife, or land plant to be an endangeredspecies 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 itscontinued existence within Hawaii.

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

(d)  The department shall issue rulescontaining a list of all species of aquatic life, wildlife, and land plantsthat have been determined, in accordance with subsections (a) to (c), asendangered species and a list of all such species so designated as threatenedspecies.  Each list shall include the scientific, common, and Hawaiian names,if any, and shall specify with respect to each such species over what portionof 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 tothe Endangered Species Act, the department, upon its own recommendation or uponthe petition of three interested persons who have presented to the departmentsubstantial evidence that warrants review, shall conduct a review of any listedor unlisted indigenous species proposed to be removed from or added to thelists published pursuant to this subsection.

(e)  With respect to any threatened orendangered 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 conservationof the species listed pursuant to this section and adopted by the departmentpursuant to this chapter; or

(5)  Violate the terms of, or fail to fulfill theobligations imposed and agreed to under, any license issued under subsection(f), (g), or (j) any habitat conservation plan authorized under section195D-21, or any safe harbor agreement authorized under section 195D-22.

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

(g)  After consultation with the endangeredspecies recovery committee, the board may issue a temporary license as a partof a habitat conservation plan to allow a take otherwise prohibited bysubsection (e) if the take is incidental to, and not the purpose of, thecarrying 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 adequatefunding for the plan will be provided;

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

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

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

(6)  The measures, if any, required under section195D-21(b) shall be met, and the department has received any other assurancesthat may be required so that the plan may be implemented;

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

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

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

Board approval shall require an affirmative vote ofnot less than two-thirds of the authorized membership of the board afterholding a public hearing on the matter on the affected island.  The departmentshall notify the public of a proposed license under this section throughpublication in the periodic bulletin of the office of environmental qualitycontrol and make the application and proposed license available for publicreview and comment for not less than sixty days prior to approval.

(h)  Licenses issued pursuant to this sectionmay be suspended or revoked for due cause, and if issued pursuant to a habitatconservation plan or safe harbor agreement, shall run with the land for theterm agreed to in the plan or agreement and shall not be assignable ortransferable separate from the land.  Any person whose license has been revokedshall not be eligible to apply for another license until the expiration of twoyears from the date of revocation.

(i)  The department shall work cooperativelywith federal agencies in concurrently processing habitat conservation plans,safe harbor agreements, and incidental take licenses pursuant to the EndangeredSpecies Act.  After notice in the periodic bulletin of the office ofenvironmental quality control and a public hearing on the islands affected,which shall be held jointly with the federal agency, if feasible, whenever alandowner seeks both a federal and a state safe harbor agreement, habitatconservation plan, or incidental take license, the board, by a two-thirdsmajority vote, may approve the federal agreement, plan, or license withoutrequiring a separate state agreement, plan, or license if the federalagreement, plan, or license satisfies, or is amended to satisfy, all thecriteria of this chapter.  All state agencies, to the extent feasible, shallwork cooperatively to process applications for habitat conservation plans andsafe harbor agreements on a consolidated basis including concurrent processingof any state land use permit application that may be required pursuant tochapter 183C or 205, so as to minimize procedural burdens upon the applicant.

(j)  Subsection (e) and any other provision oflaw to the contrary notwithstanding, the department shall adopt rules inaccordance with chapter 91 authorizing the propagation, possession, ownership,and sale of selected endangered and threatened land plant species grown fromcultivated nursery stock and not collected or removed from the wild. [L 1975, c65, pt of §1; am L 1983, c 111, §5; am L 1997, c 380, §4 and c 381, §2; am L1998, c 237, §1; am L 2004, c 144, §2]

 

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.

 

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.