HB1979 HD1

SECTION 1. The legislature finds that certain activities have a higher likelihood to incidentally cause injury or death to threatened or endangered species, including seabirds, forest birds, nene, and bats.

The purpose of this Act is to:

(1) Require all persons, before engaging in an activity with a high likelihood of resulting in an incidental take of a threatened or endangered species, to enter into a planning process with the department of land and natural resources for the purpose of preparing and implementing a habitat conservation plan; and

(2) Require habitat conservation plans to include additional components.

SECTION 2. Chapter 195D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§195D- Habitat conservation plans; circumstances when mandatory. (a) Before any person engages in an activity with a high likelihood of resulting in an incidental take of a threatened or endangered species, the person shall enter into the planning process with the department for the purpose of preparing and implementing a habitat conservation plan.

(b) The department shall identify by rules adopted pursuant to chapter 91 the types of activities that shall be deemed to have a high likelihood of resulting in an incidental take of a threatened or endangered species.

(c) Penalties for violations of subsection (a) shall be determined by the department by rules adopted pursuant to chapter 91.

(d) For the purposes of this section, "incidental take" means a take otherwise prohibited by section 195D-4(e) if the take is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."

SECTION 3. Section 195D-21, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) The department may enter into a planning process with any landowner for the purpose of preparing and implementing a habitat conservation plan[.]; provided that before any landowner engages in any activity with a high likelihood of resulting in an incidental take of a threatened or endangered species, the landowner shall enter into a planning process with the department for the purpose of preparing and implementing a habitat conservation plan pursuant to section 195D- . An agreement may include multiple landowners. Applications to enter into a planning process shall identify:

(1) The geographic area encompassed by the plan;

(2) The ecosystems, natural communities, or habitat types within the plan area that are the focus of the plan;

(3) The endangered, threatened, proposed, and candidate species known or reasonably expected to occur in the ecosystems, natural communities, or habitat types in the plan area;

(4) The measures or actions to be undertaken to protect, maintain, restore, or enhance those ecosystems, natural communities, or habitat types within the plan area;

(5) A schedule for implementation of the proposed measures and actions; and

(6) An adequate funding source to ensure that the proposed measures and actions are undertaken in accordance with the schedule.

After a habitat conservation plan is prepared, the board shall notify the public of the proposed habitat conservation plan through the periodic bulletin of the office of planning and sustainable development and make the proposed plan and the application available for public review and comment not less than sixty days prior to approval. The notice shall include but not be limited to identification of the area encompassed by the plan, the proposed activity, and the ecosystems, natural communities, and habitat types within the plan area. The notice shall solicit public input and relevant data.

(b) (1) Except as otherwise provided by law, the board, upon recommendation from the department, in cooperation with other state, federal, county, or private organizations and landowners, after a public hearing on the island affected, and upon an affirmative vote of not less than two-thirds of its authorized membership, may enter into a habitat conservation plan, if it determines that:

(A) The plan will further the purposes of this chapter by protecting, maintaining, restoring, or enhancing identified ecosystems, natural communities, or habitat types upon which endangered, threatened, proposed, or candidate species depend within the area covered by the plan;

(B) The plan will increase the likelihood of recovery of the endangered or threatened species that are the focus of the plan; and

In the event the board votes to enter into a habitat conservation plan for which the majority of the endangered species recovery committee recommended disapproval, the board may not enter into the habitat conservation plan unless the plan is approved by a two-thirds majority vote of both houses of the legislature. Habitat conservation plans may allow conservation rental agreements, habitat banking, and direct payments. Any habitat conservation plan approved pursuant to this section shall be based on the best available scientific and other reliable data available at the time the plan is approved.

(2) Each habitat conservation plan shall:

(A) Identify the geographic area encompassed by the plan; the ecosystems, natural communities, or habitat types within the plan area that are the focus of the plan; and the endangered, threatened, proposed, and candidate species known or reasonably expected to be present in those ecosystems, natural communities, or habitat types in the plan area;

(B) Describe the activities contemplated to be undertaken within the plan area with sufficient detail to allow the department to evaluate the impact of the activities on the particular ecosystems, natural communities, or habitat types within the plan area that are the focus of the plan;

(C) Identify the steps that will be taken to minimize and mitigate all negative impacts, including without limitation the impact of any authorized incidental take, with consideration of the full range of the species on the island so that cumulative impacts associated with the take can be adequately assessed; and the funding that will be available to implement those steps;

(D) Identify those measures or actions to be undertaken to protect, maintain, restore, or enhance the ecosystems, natural communities, or habitat types within the plan area; a schedule for implementation of the measures or actions; and an adequate funding source to ensure that the actions or measures, including monitoring, are undertaken in accordance with the schedule;

(E) Be consistent with the goals and objectives of any approved recovery plan for any endangered species or threatened species known or reasonably expected to occur in the ecosystems, natural communities, or habitat types in the plan area;

(F) Provide reasonable certainty that the ecosystems, natural communities, or habitat types will be maintained in the plan area, throughout the life of the plan, in sufficient quality, distribution, and extent to support within the plan area those species typically associated with the ecosystems, natural communities, or habitat types, including any endangered, threatened, proposed, and candidate species known or reasonably expected to be present in the ecosystems, natural communities, or habitat types within the plan area;

(G) Contain objective, measurable goals, the achievement of which will contribute significantly to the protection, maintenance, restoration, or enhancement of the ecosystems, natural communities, or habitat types; time frames within which the goals are to be achieved; provisions for monitoring (such as field sampling techniques), including periodic monitoring by representatives of the department or the endangered species recovery committee, or both; and provisions for evaluating progress in achieving the goals quantitatively and qualitatively; [~~and~~]

(H) Provide for an adaptive management strategy that specifies the actions to be taken periodically if the plan is not achieving its goals[.];

(I) Include effective measures to:

(i) Minimize incidental take;

(ii) Monitor for the presence of any threatened or endangered species that are injured;

(iii) Retrieve any injured threatened or endangered species in a timely manner and provide emergency medical treatment for and long-term rehabilitation of the injured species so that they can be released into the wild;

(iv) Mitigate potential incidental take by protecting additional habitat areas and through the proper design and construction of structures, lighting, wires, and other obstructions; and

(v) Implement adaptive management; and

(J) Include a service agreement with a facility that can provide on-call emergency medical treatment for and long-term rehabilitation of any injured species detected pursuant to paragraph (I)(ii)."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	1979
THIRTY-FIRST LEGISLATURE, 2022		H.D. 1
STATE OF HAWAII