(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.
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Terms Used In Hawaii Revised Statutes 195D-4
- Aquatic life: means any type of species of mammal, fish, amphibian, reptile, mollusk, crustacean, arthropod, invertebrate, coral, or other animals that inhabit the freshwater or marine environment, and includes any part, product, egg, or offspring thereof, or freshwater or marine plants, including seeds, roots, and other parts thereof. See Hawaii Revised Statutes 195D-2
- 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
- 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
- Endangered Species Act: means the Endangered Species Act of 1973, 87 Stat. See Hawaii Revised Statutes 195D-2
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Indigenous species: means any aquatic life, wildlife, or land plant species growing or living naturally in Hawaii without having been brought to Hawaii by humans. See Hawaii Revised Statutes 195D-2
- Land plant: means any member of the plant kingdom, including seeds, roots and other parts thereof, except freshwater or marine plants. 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
- Person: means an individual, corporation, partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the federal government, of any state or political subdivision thereof, or of any foreign government. See Hawaii Revised Statutes 195D-2
- recover: means that the number of individuals of the protected species has increased to the point that the measures provided under this chapter or the federal Endangered Species Act are no longer needed. 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
- Threatened species: means any species of aquatic life, wildlife, or land plant which appears likely, within the foreseeable future, to become endangered and has been so designated pursuant to § 195D-4. See Hawaii Revised Statutes 195D-2
- Wildlife: means any nondomesticated member of the animal kingdom, whether reared in captivity or not, including any part, product, egg, or offspring thereof, except aquatic life as defined in this section. See Hawaii Revised Statutes 195D-2
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 § 195D-21, or any safe harbor agreement authorized under § 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 § 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 planning and sustainable development 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 planning and sustainable development 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.
