(a) After approval of a habitat conservation plan or safe harbor agreement, or issuance of an incidental take license pursuant to this chapter, no agencies or departments of the State, in order to protect a threatened or endangered species, may impose any new requirements or conditions on, or modify any existing requirements or conditions applicable to, a landowner or successor to the landowner, to mitigate or compensate for changes in the conditions or circumstances of any species or ecosystem, natural community, or habitat covered by the plan, agreement, or license unless:

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Terms Used In Hawaii Revised Statutes 195D-23

  • Board: means the board of land and natural resources. See Hawaii Revised Statutes 195D-2
  • Department: means department of land and natural resources. See Hawaii Revised Statutes 195D-2
  • Ecosystem: means all natural elements, physical and biological, of the habitat or site in which any aquatic life, wildlife, or land plant species is found, and upon which it is dependent. See Hawaii Revised Statutes 195D-2
  • Endangered species: means any species whose continued existence as a viable component of Hawaii's indigenous fauna or flora is determined to be in jeopardy and has been so designated pursuant to § 195D-4. See Hawaii Revised Statutes 195D-2
  • Landowner: means an owner of land or any estate or interest in that land when acting with the consent of the fee owner. See Hawaii Revised Statutes 195D-2
  • License: means written permission by the department of land and natural resources to do a particular act or series of acts which without such permission would be unauthorized or prohibited. See Hawaii Revised Statutes 195D-2
  • Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
  • Public lands: means lands owned by the federal government, the State, or a county, or lands owned by any political subdivision of the federal government, the State, or a county. See Hawaii Revised Statutes 195D-2
  • Species: means and shall include any subspecies or lower taxa of aquatic life, wildlife, or land plants. See Hawaii Revised Statutes 195D-2
  • Take: means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect endangered or threatened species of aquatic life or wildlife, or to cut, collect, uproot, destroy, injure, or possess endangered or threatened species of aquatic life or land plants, or to attempt to engage in any such conduct. See Hawaii Revised Statutes 195D-2
  • Technical assistance program: means a program that includes department staff designated to assist landowners in developing, reviewing, or monitoring habitat conservation plans by providing technical assistance. See Hawaii Revised Statutes 195D-2
(1) The landowner, or the landowner’s successor, expressly consents to the requirement, condition, or modification;
(2) The board has found, in accordance with those special procedures agreed to by the board and the landowner, or in the absence of any special procedures, in accordance with those procedures that govern the findings generally, that:

(A) The requirement, condition, or modification does not impose any additional restriction on any parcel of land or body of water available for use or development under the plan or agreement; and
(B) The requirement, condition, or modification will not increase the cost to the landowner or other parties to the plan or agreement of implementing the plan or agreement;
(3) The department is prepared to exercise its authority to:

(A) Pay the landowner for the costs of any new requirement or condition or any modification of any existing requirement or condition, which costs may be determined through binding arbitration; and
(B) Take any other action to ensure that any party to the plan or agreement is not, without the party’s consent, unduly burdened by the requirement, condition, or modification, in which case the department shall implement that necessary requirement, condition, or modification upon committing to pay the costs, mitigate the actions, or undertake the action;
(4) The board has revoked the approval of the plan or rescinded the agreement in accordance with section 195D-21(d) or 195D-22(c); or
(5) Extraordinary new circumstances or information indicate that failure to modify the plan or agreement is likely to appreciably reduce the likelihood of the survival or recovery of any threatened or endangered species in its natural habitat. If additional mitigation measures are subsequently deemed necessary to provide for the conservation of a species that was otherwise adequately covered under the terms of a habitat conservation plan, safe harbor agreement, or incidental take license as a result of extraordinary circumstances, the primary obligation for executing mitigation measures shall rest with the State, or the federal government with its consent, and not with the landowner.
(b) Entry by a landowner into a habitat conservation plan or safe harbor agreement shall be voluntary.
(c) The department may establish a landowner contact and recognition program that:

(1) Contacts landowners who may have threatened or endangered species or their habitat on their land and that sends information on the species or habitat in question. If the landowner is willing, a nonbinding memorandum of understanding may be signed, which states a general intention to protect the species or habitat found on the land;
(2) If available, provides participating landowners with a current supply of information on the conservation of species and habitat found on their land;
(3) On an annual basis, recognizes one or more private 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 landowner participating in a habitat conservation plan an “Outstanding Participant of the Year” award.
(d) The department may establish a habitat conservation technical assistance program to assist landowners in developing, reviewing, or monitoring habitat conservation plans by providing technical assistance. The department may collect fees and payment for costs incurred for use of the technical assistance program in the development, review, or monitoring of a specific habitat conservation plan. Fees shall be charged at an hourly rate of $50. The fees and payment for costs collected pursuant to this subsection shall be deposited into the endangered species trust fund established under § 195D-31.
(e) Persons participating within voluntary programs under this chapter may receive consideration from the board to use adjacent public lands for commercial nature tourism activities that increase public education and support for endangered species; provided that an agreed percentage of the fees charged for nature tourism activities shall be donated to the trust fund to implement this chapter.
(f) The execution of habitat conservation plans and safe harbor agreements under §§ 195D-21 and 195D-22, respectively, shall, for the purposes of providing incentives and assistance to landowners, be deemed to be a public purpose and in the public interest, and for the general welfare of the State.

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