Bill Text: HI SB962 | 2010 | Regular Session | Introduced

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Bill Title: Endangered Species

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [SB962 Detail]

Download: Hawaii-2010-SB962-Introduced.html

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Report Title:

Endangered Species

 

Description:

Authorizes the development and use of programmatic safe harbor agreements and programmatic habitat conservation plans that cover multiple landowners or a class of landowners or extend over a wide area or region.

 

THE SENATE	S.B. NO.	962
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO CONSERVATION OF THREATENED AND ENDANGERED SPECIES.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  Section 195D-2, Hawaii Revised Statutes, is amended by adding three new definitions to be appropriately inserted and to read as follows:

     ""Certificate of inclusion" means a type of license that is used to enroll interested landowners into a programmatic safe harbor agreement or programmatic habitat conservation plan and extends coverage of an incidental take license to those landowners identified in the agreement or plan and who subsequently enroll in the agreement or plan.

     "Habitat conservation plan" means a plan that covers single or multiple landowners, or a class of landowners such as in a programmatic plan, and may include a single property or extend over a wide area or region.

     "Safe harbor agreement" means an agreement that covers single or multiple landowners, or a class of landowners such as in a programmatic agreement, and may include a single property or extend over a wide area or region."

     SECTION 2.  Section 195D-4, Hawaii Revised Statutes, is amended by amending subsections (g), (h), and (i) to read as follows:

     "(g)  After consultation with the endangered species recovery committee, the board may issue a temporary license as a part of a habitat conservation plan or programmatic 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.  A programmatic habitat conservation plan may also provide for issuance of certificates of inclusion to extend the coverage of the incidental take license to landowners enrolling in the programmatic plan at a later date.

     (h)  Licenses or certificates of inclusion 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 or certificate of inclusion has been revoked shall not be eligible to apply for another license or certificate of inclusion 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, and certificates of inclusion 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."

     SECTION 3.  Section 195D-5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The office of the governor shall review other programs administered by the department and, to the extent practicable, [utilize] use such programs in furtherance of the purposes of this chapter.  The governor or the governor's authorized representative shall also encourage all federal agencies to [utilize] use their authority in furtherance of the purposes of this chapter.  All other state agencies shall use their authority in furtherance of the purposes of this chapter by:

     (1)  Carrying out programs for the protection of threatened and endangered species; and

     (2)  Taking such action as may be necessary to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of threatened or endangered species.

     In carrying out programs authorized by this chapter, the department may enter into agreements with federal agencies, counties, private landowners, and organizations for the administration and management of any area or facility established under section 195D-21 or 195D-22, or public lands [utilized] used for conserving, managing, enhancing, or protecting indigenous aquatic life, wildlife, land plants, threatened and endangered species, and their habitat."

     SECTION 4.  Section 195D-21, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

     "(d)  Notwithstanding any other law to the contrary, the board shall suspend or revoke the approval of any habitat conservation plan or individual landowner's portion thereof approved under this section if the board determines that:

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

     (2)  The plan no longer has the funding source specified in subsection (a) or another sufficient funding source to ensure 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."

     SECTION 5.  Section 195D-22, Hawaii Revised Statutes, is amended to read as follows:

     "§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.  A programmatic safe harbor agreement may also provide for issuance of certificates of inclusion to extend the coverage of the incidental take license to landowners enrolling in the programmatic agreement at a later date.

     (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 or individual landowner's portion thereof 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."

     SECTION 6.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	____________________________
	BY REQUEST