37-801 . Act, how cited
37-802 . Terms, defined
37-803 . Legislative intent
37-804 . Legislative declarations
37-805 . Commission; develop conservation programs; unlawful acts
37-806 . Endangered or threatened species; how determined; commission; powers and duties; unlawful acts; exceptions; local law, regulation, or ordinance; effect
37-807 . Commission; establish conservation programs; agreements authorized; Governor; duties; state agency; effect of agency action on endangered or threatened species or critical habitat; commission statement; conservation programs; public meeting; when required
37-808 . Commission; issue regulations
37-809 . Violations; penalties; conservation or peace officer; powers and duties; regulations
37-810 . Act; how construed
37-811 . Wildlife Conservation Fund; created; use; investment
37-812. Transportation infrastructure; act, applicability
37-813. Transportation infrastructure; exempt party; duties; commission; powers and duties
37-814. Critical habitat; designation; factors; procedure
Sections 37-801 to 37-814 shall be known and may be cited as the Nongame and Endangered Species Conservation Act.
Credits
Laws 1975, LB 145, § 1; Laws 1984, LB 466, § 1; Laws 1998, LB 922, § 351; Laws 2024, LB 1335, § 2, eff. July 19, 2024.
Codifications: R.S. 1943, (1993), § 37-430..
For purposes of the Nongame and Endangered Species Conservation Act, unless the context otherwise requires, the definitions found in sections 37-203 to 37-236, 37-238, 37-239, 37-241, and 37-243 to 37-247 and the following definitions are used:
(1)(a) Critical habitat means any specific area within the geographical area occupied by any endangered or threatened species at the time such species was listed pursuant to section 37-806 that contains the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection.
(b) Critical habitat includes any specific area outside the geographical area occupied by the species at the time such species is listed pursuant to section 37-806 upon a determination by the commission that such area is essential for the conservation of the species.
(c) Critical habitat does not include any manmade structure that is not necessary to the survival or recovery of any endangered or threatened species that is listed pursuant to section 37-806, including any transportation infrastructure or human settlement.
(d) Each public road, street, and highway, including any associated right-of-way, is a manmade structure and is not critical habitat for purposes of the Nongame and Endangered Species Conservation Act;
(2) Endangered species means any species of wildlife or wild plants whose continued existence as a viable component of the wild fauna or flora of the state is determined to be in jeopardy or any species of wildlife or wild plants which meets the criteria of the Endangered Species Act;
(3) Exempt party means any state agency or political subdivision with a lawful duty to design, construct, reconstruct, repair, operate, or maintain transportation infrastructure, or any agent, employee, consultant, or contractor of any such state agency or political subdivision;
(4) Extirpated species means any species of wildlife or wild plants which no longer exists or is found in Nebraska;
(5) Nongame species means any species of mollusks, crustaceans, or vertebrate wildlife not legally classified as game bird, game animal, game fish, fur-bearing animal, threatened species, or endangered species by statute or regulation of this state;
(6) Person means an individual, corporation, partnership, limited liability company, trust, association, or other private entity or any officer, employee, agent, department, or instrumentality of the federal government, any state or political subdivision thereof, or any foreign government;
(7) Restore means to return to a state that is not less beneficial for endangered or threatened species than the property was prior to an exempt party's actions;
(8) Species means any subspecies of wildlife or wild plants and any other group of wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature;
(9) Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct;
(10) Threatened species means any species of wild fauna or flora which appears likely to become endangered, either by determination of the commission or by criteria provided by the Endangered Species Act; and
(11) Transportation infrastructure includes any:
(a) Road, street, highway, or right-of-way of a road, street, or highway;
(b) Previously approved and utilized interdependent or interrelated contractor-use site that is identified on the website of the Department of Transportation, including any borrow, waste, plant, stockpile, or construction debris site;
(c) Actions permitted by a state agency or political subdivision within any road, street, highway, or right-of-way of any road, street, or highway controlled by the state agency or political subdivision;
(d) Pedestrian or bicycle trail, lane, or bridge;
(e) Technology with the primary purpose of benefiting the traveling public; and
(f) Broadband infrastructure placed by the Department of Transportation.
Credits
Laws 1975, LB 145, § 2; Laws 1984, LB 466, § 3; Laws 1987, LB 150, § 2; Laws 1993, LB 121, § 202; Laws 1998, LB 922, § 352; Laws 2024, LB 1335, § 3, eff. July 19, 2024.
Codifications: R.S. 1943, (1993), § 37-431.
The Legislature finds and declares:
(1) That it is the policy of this state to conserve species of wildlife for human enjoyment, for scientific purposes, and to insure their perpetuation as viable components of their ecosystems;
(2) That species of wildlife and wild plants normally occurring within this state which may be found to be threatened or endangered within this state shall be accorded such protection as is necessary to maintain and enhance their numbers;
(3) That this state shall assist in the protection of species of wildlife and wild plants which are determined to be threatened or endangered elsewhere pursuant to the Endangered Species Act by prohibiting the taking, possession, transportation, exportation from this state, processing, sale or offer for sale, or shipment within this state of such endangered species and by carefully regulating such activities with regard to such threatened species. Exceptions to such prohibitions, for the purpose of enhancing the conservation of such species, may be permitted as set forth in the Nongame and Endangered Species Conservation Act; and
(4) That any funding for the conservation of nongame, threatened, and endangered species shall be made available to the commission from General Fund appropriations, the Wildlife Conservation Fund, or other sources of revenue not deposited in the State Game Fund.
Source: Laws 1975, LB 145, § 3; Laws 1984, LB 466, § 4; R.S.1943, (1993), § 37-432; Laws 1998, LB 922, § 353; Laws 2007, LB299, § 17. Effective date September 1, 2007.
§ 37-804. Legislative declarations.
The Legislature hereby declares that nongame, threatened, and endangered species have need of special protection and that it is in the public interest to preserve, protect, perpetuate, and enhance such species of this state through preservation of a satisfactory environment and an ecological balance. The purpose of section 37-811 and section 77-27,119.01 is to provide a means by which such protection may be financed through a voluntary checkoff designation on state income tax return forms. The intent of the Legislature is that the program of income tax checkoff is supplemental to any funding and in no way is intended to take the place of the funding that would otherwise be appropriated for such purpose.
Source: Laws 1984, LB 466, § 2; Laws 1989, LB 258, § 1; R.S.1943, (1993), § 37-432.01; Laws 1998, LB 922, § 354.
§ 37-805. Commission; develop conservation programs; unlawful acts.
(1) The commission shall conduct investigations of nongame wildlife in order to develop information relating to population, distribution, habitat needs, limiting factors, and other biological and ecological data to determine conservation measures necessary to enable such nongame wildlife to sustain itself successfully. On the basis of such determinations the commission shall develop a list of nongame wildlife in need of conservation, issue proposed regulations not later than two years from August 24, 1975, and develop conservation programs designed to insure the continued ability of nongame wildlife in need of conservation to perpetuate itself successfully. The commission shall conduct continuing investigations of nongame wildlife.
(2) The commission shall establish such proposed limitations relating to the taking, possession, transportation, exportation from this state, processing, sale or offer for sale, or shipment as may be necessary to conserve such nongame wildlife.
(3) Except as provided in regulations issued by the commission, it shall be unlawful for any person to take, possess, transport, export, process, sell or offer for sale, or ship nongame wildlife in need of conservation pursuant to this section. Subject to the same exception, it shall further be unlawful for any person, other than a common or contract motor carrier under the jurisdiction of the Public Service Commission or the Interstate Commerce Commission knowingly to transport, ship, or receive for shipment nongame wildlife in need of conservation pursuant to this section.
Source: Laws 1975, LB 145, § 4; R.S.1943, (1993), § 37-433; Laws 1998, LB 922, § 355.
§ 37-806. Endangered or threatened species; how determined; commission; powers and duties; unlawful acts; exceptions; local law, regulation, or ordinance; effect
(1) (1)(a) Any species of wildlife or wild plants determined to be an endangered species pursuant to the Endangered Species Act shall be an endangered species under the Nongame and Endangered Species Conservation Act, and any species of wildlife or wild plants determined to be a threatened species pursuant to the Endangered Species Act shall be a threatened species under the Nongame and Endangered Species Conservation Act.
(b) Within a reasonable time after any federal listing, downlisting, removal, or uplisting, the commission may determine that any species of wildlife or wild plant should receive a different state-listed status throughout all or any portion of the range of such species within this state by completing the formal listing process as prescribed in this section or by retaining its previous state-listed status.
(2) In addition to the species determined to be endangered or threatened pursuant to the Endangered Species Act, the commission shall, by adopting and promulgating rules and regulations, determine whether any species of wildlife or wild plants normally occurring within this state is an endangered or threatened species as a result of any of the following factors:
(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, educational, or other purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence within this state.
(3)(a) The commission shall make determinations required by subsection (2) of this section on the basis of the best scientific, commercial, and other data available to the commission.
(b) Except with respect to species of wildlife or wild plants determined to be endangered or threatened species under subsection (1) of this section, the commission shall not add a species to nor remove a species from any list published pursuant to subsection (5) of this section unless the commission has first:
(i) Provided public notice of such proposed action by publication in a newspaper of general circulation in each county in that portion of the subject species' range in which it is endangered or threatened or, if the subject species' range extends over more than five counties, in a newspaper of statewide circulation distributed in the county;
(ii) Provided notice of such proposed action to and allowed comment from the Department of Agriculture, the Department of Environment and Energy, the Department of Natural Resources, and any other state agency that the commission determines might be impacted by the proposed action;
(iii) Provided notice of such proposed action to and allowed comment from each natural resources district and public power district located in that portion of the subject species' range in which it is endangered or threatened;
(iv) Notified the Governor of any state sharing a common border with this state, in which the subject species is known to occur, that such action is being proposed;
(v) Allowed at least sixty days following publication for comment from the public and other interested parties;
(vi) Held at least one public hearing on such proposed action in each game and parks commissioner district of the subject species' range in which it is endangered or threatened;
(vii) Submitted the scientific, commercial, and other data that is the basis of the proposed action to scientists or experts outside and independent of the commission for peer review of the data and conclusions. If the commission submits the data to a state or federal fish and wildlife agency for peer review, the commission shall also submit the data to scientists or experts not affiliated with such an agency for review. For purposes of this section, state fish and wildlife agency does not include a postsecondary educational institution; and
(viii) For species proposed to be added under this subsection but not for species proposed to be removed under this subsection, developed an outline of the potential impacts, requirements, or rules and regulations that may be placed on private landowners, or on other persons who hold state-recognized property rights on behalf of themselves or others, as a result of the listing of the species or the development of a proposed program for the conservation of the species as required in subsection (1) of section 37-807.
(c) The inadvertent failure to provide notice as required by subdivision (3)(b) of this section shall not prohibit the listing of a species and shall not be deemed to be a violation of the Administrative Procedure Act or the Nongame and Endangered Species Conservation Act.
(d) When the commission proposes to add or remove a species under this subsection, public notice under subdivision (3)(b)(i) of this section shall include, but not be limited to, (i) the species proposed to be listed and a description of that portion of its range in which the species is endangered or threatened, (ii) a declaration that the commission submitted the data that is the basis for the listing for peer review and developed an outline if required under subdivision (b)(viii) of this subsection, and (iii) a declaration of the availability of the peer review, including an explanation of any changes or modifications the commission has made to its proposal as a result of the peer review, and the outline required under subdivision (b)(viii) of this subsection, if applicable, for public examination.
(e) In cases when the commission determines that an emergency situation exists involving the continued existence of such species as a viable component of the wild fauna or flora of the state, the commission may add species to such lists after first publishing public notice that such an emergency situation exists together with a summary of facts that support such determination.
(4) In determining whether any species of wildlife or wild plants is an endangered or threatened species, the commission shall take into consideration those actions being carried out by the federal government, by other states, by other agencies of this state or its political subdivisions, or by any other person which may affect the species under consideration.
(5) The commission shall adopt and promulgate rules and regulations containing a list of all species of wildlife and wild plants normally occurring within this state that it determines, in accordance with subsections (1) through (4) of this section, to be endangered or threatened species and a list of all such species. Each list shall refer to the species contained in such list by scientific and common name or names, if any, and shall specify with respect to each such species over what portion of its range it is endangered or threatened.
(6) Except with respect to species of wildlife or wild plants determined to be endangered or threatened pursuant to the Endangered Species Act, the commission shall, upon the petition of an interested person, conduct a review of any listed or unlisted species proposed to be removed from or added to the lists published pursuant to subsection (5) of this section, but only if the commission publishes a public notice that such person has presented substantial evidence that warrants such a review.
(7) Whenever any species of wildlife or wild plants is listed as a threatened species pursuant to subsection (5) of this section, the commission shall issue such rules and regulations as are necessary to provide for the conservation of such species. The commission may prohibit, with respect to any threatened species of wildlife or wild plants, any act prohibited under subsection (8) or (9) of this section.
(8) With respect to any endangered species of wildlife, it shall be unlawful, except as provided in subsection (7) of this section or section 37-807, for any person subject to the jurisdiction of this state to:
(a) Export any such species from this state;
(b) Take any such species within this state;
(c) Possess, process, sell or offer for sale, deliver, carry, transport, or ship, by any means whatsoever except as a common or contract motor carrier under the jurisdiction of the Public Service Commission or the federal Surface Transportation Board, any such species; or
(d) Violate any rule or regulation pertaining to the conservation of such species or to any threatened species of wildlife listed pursuant to this section and adopted and promulgated by the commission pursuant to the Nongame and Endangered Species Conservation Act.
(9) With respect to any endangered species of wild plants, it shall be unlawful, except as provided in subsection (7) of this section, for any person subject to the jurisdiction of this state to:
(a) Export any such species from this state;
(b) Possess, process, sell or offer for sale, deliver, carry, transport, or ship, by any means whatsoever, any such species; or
(c) Violate any rule or regulation pertaining to such species or to any threatened species of wild plants listed pursuant to this section and adopted and promulgated by the commission pursuant to the act.
(10) Any endangered species of wildlife or wild plants that enters this state from another state or from a point outside the territorial limits of the United States and that is being transported to a point within or beyond this state may be so entered and transported without restriction in accordance with the terms of any federal permit or permit issued under the laws or regulations of another state.
(11) The commission may permit any act otherwise prohibited by subsection (8) of this section for scientific purposes or to enhance the propagation or survival of the affected species.
(12) Any law, rule, regulation, or ordinance of any political subdivision of this state that applies with respect to the taking, importation, exportation, possession, sale or offer for sale, processing, delivery, carrying, transportation other than under the jurisdiction of the Public Service Commission, or shipment of species determined to be endangered or threatened species pursuant to the Nongame and Endangered Species Conservation Act shall be void to the extent that it may effectively (a) permit that which is prohibited by the act or by any rule or regulation that implements the act or (b) prohibit that which is authorized pursuant to an exemption or permit provided for in the act or in any rule or regulation that implements the act. The Nongame and Endangered Species Conservation Act shall not otherwise be construed to void any law, rule, regulation, or ordinance of any political subdivision of this state which is intended to conserve wildlife or wild plants.
Credits
Laws 1975, LB 145, § 5; Laws 1998, LB 922, § 356; Laws 2002, LB 1003, § 33; Laws 2019, LB 302, § 19, eff. July 1, 2019; Laws 2024, LB 1335, § 4, eff. July 19, 2024.
Codifications: R.S. 1943, (1993), § 37-434.
§ 37-807. Commission; establish conservation programs; agreements authorized; Governor; duties; state agency; effect of agency action on endangered or threatened species or critical habitat; commission statement; conservation programs; public meeting; when required
(1) The commission shall establish such programs, including acquisition of land or aquatic habitat or interests therein, as are necessary for the conservation of nongame, threatened, or endangered species of wildlife or wild plants. Acquisition for the purposes of this subsection shall not include the power to obtain by eminent domain.
(2) In carrying out programs authorized by this section, the commission shall consult with other states having a common interest in particular species of nongame, endangered, or threatened species of wildlife or wild plants and may enter into agreements with federal agencies, other states, political subdivisions of this state, or private persons with respect to programs designed to conserve such species including, when appropriate, agreements for administration and management of any area established under this section or utilized for conservation of such species.
(3)(a) For purposes of this section, state agency means any department, agency, board, bureau, or commission of the state or any other entity whose primary function is to act as, and while acting as, an instrumentality or agency of the state, except that state agency does not include a natural resources district or any other political subdivision.
(b) The Governor shall review other programs administered by him or her and utilize such programs in furtherance of the purposes of the Nongame and Endangered Species Conservation Act. All other state agencies shall, in consultation with and with the assistance of the commission, utilize their authorities in furtherance of the purposes of the act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 37-806.
(c) Each state agency shall, in consultation with and with the assistance of the commission, ensure with the best scientific and commercial data available that any action authorized, funded, or carried out by such state agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of any designated critical habitat.
(4)(a) After each consultation described in subsection (3) of this section, the commission shall provide each state agency, applicant, and project proponent, if any, with a written statement described in subdivision (4)(b) of this section if the commission concludes that:
(i) The agency action will not violate the restrictions in subdivision (3)(c) of this section, or, if the agency action might violate such restrictions, the agency offers reasonable and prudent alternatives that the commission believes will not violate such restrictions; and
(ii) The taking of any endangered or threatened species incidental to the potential action of the state agency will not violate the restrictions in subdivision (3)(c) of this section.
(b) The written statement described in subdivision (4)(a) of this section shall:
(i) Specify the impact of any incidental taking of any endangered or threatened species;
(ii) Specify reasonable and prudent measures that the commission considers necessary or appropriate to minimize such impact; and
(iii) Set forth terms and conditions with which the state agency, applicant, and project proponent, if any, shall comply to implement the measures specified in subdivision (3)(c) of this section, including reporting requirements.
(5) Any taking of any endangered or threatened species that is in compliance with the terms and conditions specified in a written statement provided under subsection (4) of this section is not a prohibited taking of such species.
(6) If the written statement provided under subsection (4) of this section pertains to any species that was listed pursuant to subsection (1) of section 37-806 and a federal incidental take statement has been issued for the same action pursuant to the Endangered Species Act, the commission shall issue a written statement with the same terms as the federal incidental take statement.
(7) The commission shall provide notice and hold a public meeting prior to the implementation of conservation programs designed to reestablish threatened, endangered, or extirpated species of wildlife or wild plants through the release of animals or plants to the wild. The purpose of holding such a public meeting shall be to inform the public of programs requiring the release to the wild of such wildlife or wild plants and to solicit public input and opinion. The commission shall set a date and time for the public meeting to be held at a site convenient to the proposed release area and shall publish a notice of such meeting in a legal newspaper published in or of general circulation in the county or counties where the proposed release is to take place. The notice shall be published at least twenty days prior to the meeting and shall set forth the purpose, date, time, and place of the meeting.
Credits
Laws 1975, LB 145, § 6; Laws 1984, LB 1106, § 22; Laws 1987, LB 150, § 3; Laws 1991, LB 772, § 3; Laws 1998, LB 922, § 357; Laws 2024, LB 1335, § 5, eff. July 19, 2024.
Codifications: R.S. 1943, (1993), § 37-435.
§ 37-808. Commission; issue regulations.
The commission shall issue such regulations as are necessary to carry out the purposes of the Nongame and Endangered Species Conservation Act in accordance with the Administrative Procedure Act.
Source: Laws 1975, LB 145, § 7; R.S.1943, (1993), § 37-436; Laws 1998, LB 922, § 358.
§ 37-809. Violations; penalties; conservation or peace officer; powers and duties; regulations.
(1) Any person who violates the provisions of subsection (3) of section 37- 805 or any regulations issued in implementation thereof or whoever fails to procure or violates the terms of any permit issued pursuant to section 37- 805 shall be guilty of a Class II misdemeanor.
(2) Any person who violates the provisions of subsection (8) of section 37- 806 or any regulations issued pursuant to subsection (7) of section 37-806 or whoever fails to procure any permit required by subsection (11) of section 37-806 or violates the terms of any such permit shall be guilty of a Class I misdemeanor. Any conservation officer or any peace officer of this state or any municipality or county within this state shall have authority to conduct searches as provided by law, and to execute a warrant to search for and seize any equipment other than equipment owned or operated by any common or contract motor carrier under the jurisdiction of the Public Service Commission or the Interstate Commerce Commission, business records, wildlife, wild plants, or other contraband taken, used, or possessed in connection with any violation of the Nongame and Endangered Species Conservation Act. Any such officer or agent may, without a warrant, arrest any person whom he or she has probable cause to believe is violating, in his or her presence or view, the act or any regulation or permit provided for in the act. Any officer or agent who has made an arrest of a person in connection with any such violation may search such person or business records at the time of arrest and may seize any wildlife, wild plants, records, or property taken or used in connection with any such violation.
(4) Equipment other than equipment owned or operated by any common or contract motor carrier under the jurisdiction of the Public Service Commission or the Interstate Commerce Commission, wildlife, wild plants, records, or other contraband seized under the provisions of subsection (3) of this section shall be held by an officer or agent of the commission pending disposition of court proceedings, and thereafter be forfeited to this state for destruction or disposition as the commission may deem appropriate. Prior to forfeiture, the commission may direct the transfer of wildlife or wild plants so seized to a qualified zoological, botanical, educational, or scientific institution for safekeeping, with the costs thereof to be assessable to the defendant. The commission shall issue regulations to implement this subsection.
Source: Laws 1975, LB 145, § 8; Laws 1977, LB 40, § 188; R.S.1943, (1993), § 37-437; Laws 1998, LB 922, § 359.
The Nongame and Endangered Species Conservation Act shall not be construed to apply retroactively to or prohibit importation into this state of wildlife or wild plants which may be lawfully imported into the United States or lawfully taken and removed from another state, or prohibit entry into this state or the possession, transportation, exportation, processing, sale or offer for sale, or shipment of any wildlife or wild plants which have been determined to be an endangered or threatened species in this state but not in the state where originally taken if the person engaging in such activity demonstrates by substantial evidence that such wildlife or wild plants were lawfully taken and lawfully removed from such state. This section shall not be construed to permit the possession, transportation by a person other than a common or contract motor carrier under the jurisdiction of the Public Service Commission or the Interstate Commerce Commission, exportation, processing, sale or offer for sale, or shipment within this state of species of wildlife or wild plants determined, pursuant to the Endangered Species Act, to be an endangered or threatened species, except as permitted by subsection (11) of section 37- 806.
Source: Laws 1975, LB 145, § 9; R.S.1943, (1993), § 37-438; Laws 1998, LB 922, § 360.
§ 37-811. Nongame and Endangered Species Conservation Fund; created; use; investment.
There is hereby created the Wildlife Conservation Fund. The fund shall be used to assist in carrying out the Nongame and Endangered Species Conservation Act, to pay for research into and management of the ecological effects of the release, importation, commercial exploitation, and exportation of wildlife species pursuant to section 37-548, and to pay any expenses incurred by the Department of Revenue or any other agency in the administration of the income tax designation program required by section 77-27,119.01. The fund shall consist of money credited pursuant to section 60-3,238 and any other money as determined by the Legislature. The fund shall also consist of money transferred from the General Fund by the State Treasurer in an amount to be determined by the Tax Commissioner which shall be equal to the total amount of contributions designated pursuant to section 77-27,119.01. Any money in the Wildlife Conservation Fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.
Credits
Laws 1984, LB 466, § 7; Laws 1989, LB 258, § 2; Laws 1994, LB 1066, § 23; Laws 1998, LB 922, § 361; Laws 1999, LB 176, § 98; Laws 2007, LB 299, § 18; Laws 2019, LB 356, § 1, eff. Sept. 1, 2019.
37-812. Transportation infrastructure; act, applicability
The Nongame and Endangered Species Conservation Act does not apply to any action of an exempt party in furtherance of its lawful duties associated with designing, constructing, reconstructing, repairing, operating, or maintaining transportation infrastructure, except that:
(1) This exemption does not extend to any state agency as defined in section 37-807 performing any action that would require consultation pursuant to subsection (3) of section 37-807 if such state agency is not actually engaged in designing, constructing, reconstructing, repairing, operating, or maintaining transportation infrastructure; and
(2) The Nongame and Endangered Species Conservation Act applies to any initial action by an exempt party that creates new transportation infrastructure in areas not previously dedicated to the exempt party's lawful duties or any subsequent action that increases the area of existing transportation infrastructure.
Credits
Laws 2024, LB 1335, § 6, eff. July 19, 2024.
37-813. Transportation infrastructure; exempt party; duties; commission; powers and duties
(1) To the extent the exempt party deems practical and compatible with the primary purposes of transportation infrastructure, such exempt party shall:
(a) Consider the impact on endangered or threatened species when designing, constructing, reconstructing, repairing, operating, or maintaining transportation infrastructure. The exempt party may modify or amend designs and operation and maintenance practices to decrease or avoid any negative impact on any endangered or threatened species; and
(b) Restore areas of temporary disturbance on real property it owns in fee simple at the conclusion of any construction, reconstruction, repair, operation, or maintenance.
(2)(a) Upon request of any exempt party, the commission shall provide support and recommendations to such exempt party relating to any potential impact caused by the actions of the exempt party on any endangered or threatened species related to the design, construction, reconstruction, repair, operation, or maintenance of transportation infrastructure.
(b) The exempt party may enter into any written agreement with the commission or any other governmental entity for the purpose of providing aid in the conservation of any endangered or threatened species.
Credits
Laws 2024, LB 1335, § 7, eff. July 19, 2024.
37-814. Critical habitat; designation; factors; procedure
(1) Any federally designated critical habitat under the Endangered Species Act shall be critical habitat under the Nongame and Endangered Species Conservation Act.
(2)(a) In addition to federally designated critical habitat under the Endangered Species Act, the commission shall by rule and regulation determine if any additional habitat of a species listed pursuant to subsection (2) of section 37-806 is critical habitat as a result of any of the following factors:
(i) The present or threatened destruction, modification, or curtailment of the habitat or range of such species;
(ii) Overutilization for commercial, recreational, scientific, educational, or other purposes;
(iii) Disease or predation;
(iv) The inadequacy of existing regulatory mechanisms; or
(v) Other natural or manmade factors affecting the continued existence within this state of such species.
(b) The commission shall not designate as critical habitat for any endangered or threatened species the entire geographical area that can be occupied by such endangered or threatened species unless the commission determines that such designation is essential for the survival of the endangered or threatened species.
(c) The commission may, concurrently with making a determination under subsection (2) of section 37-806 that a species is an endangered or threatened species, designate any habitat of such species that is also considered to be critical habitat.
(d) The commission may designate critical habitat for any plant or animal species that is listed under section 37-806 that does not have a designated critical habitat.
(e) The commission may revise any previous designation of critical habitat.
(3)(a) The commission shall make determinations required by subsection (2) of this section on the basis of the best scientific, commercial, and other data available to the commission.
(b) Except with respect to critical habitat designated under subsection (1) of this section, the commission shall not designate or remove designation of critical habitat for a species from any list published pursuant to subsection (5) of this section unless the commission:
(i) Provides public notice of such proposed action by publication in a newspaper of general circulation in each county in which the critical habitat is proposed to be designated, or if the proposed critical habitat designation extends over more than five counties, in a newspaper of statewide circulation distributed in each of the counties;
(ii) Provides notice of such proposed action to and allows comment from the Department of Agriculture, the Department of Environment and Energy, the Department of Natural Resources, and any other state agency that the commission determines might be impacted by the proposed action;
(iii) Provides notice of such proposed action to and allows comment from each natural resources district and public power district located within the area proposed to be designated as critical habitat;
(iv) Notifies the Governor of any state sharing a common border with this state, in which the species for which the critical habitat that is being proposed to be designated is known to occur, that such action is being proposed;
(v) Allows at least sixty days following publication for comment from the public and other interested parties;
(vi) Holds at least one public hearing on such proposed action in each game and parks commissioner district where the critical habitat is proposed to be designated;
(vii) Submits the scientific, commercial, and other data that is the basis of the proposed action to scientists or experts outside and independent of the commission for peer review of the data and conclusions. If the commission submits the data to a state or federal fish and wildlife agency for peer review, the commission shall also submit the data to scientists or experts not affiliated with such agency for review. For purposes of this section, state fish and wildlife agency does not include a postsecondary educational institution; and
(viii) For critical habitat proposed to be designated under this subsection, but not for critical habitat proposed to be removed from designation under this subsection, develops an outline of any potential impact, requirement, or rule or regulation that might be placed on any private landowner or other person who holds any state-recognized property right as a result of the listing of the critical habitat designation.
(c) The inadvertent failure to provide notice as required by subdivision (3)(b) of this section shall not prohibit the designation of critical habitat and shall not be deemed to be a violation of the Administrative Procedure Act or the Nongame and Endangered Species Conservation Act.
(d) When the commission proposes to designate or remove designation of critical habitat under this subsection, public notice under subdivision (3)(b)(i) of this section shall include (i) the critical habitat proposed to be listed as designated critical habitat and a description of the portion of the range in which the species for which critical habitat is proposed to be designated is endangered or threatened, (ii) a declaration that the commission submitted the data that is the basis for the listing for peer review and developed an outline if required under subdivision (b)(viii) of this subsection, and (iii) a declaration of the availability of the peer review, including an explanation of any changes or modifications the commission has made to its proposal as a result of the peer review, and the outline required under subdivision (b)(viii) of this subsection, if applicable, for public examination.
(e) In cases when the commission determines that an emergency situation exists that requires the designation of critical habitat to provide for the continued existence of a species as a viable component of the wild fauna or flora of the state, the commission may add the designated critical habitat to such lists after first publishing public notice that such an emergency situation exists together with a summary of facts that support such determination.
(4) In determining whether any endangered or threatened species requires the designation of critical habitat, the commission shall take into consideration those actions being carried out by the federal government, by other states, by other agencies of this state or its political subdivisions, or by any other person which may affect the species under consideration.
(5) The commission shall adopt and promulgate rules and regulations containing a list of all designated critical habitat in this state and the endangered or threatened species for which such critical habitat was designated. Each species on such list shall be referred to by both scientific and common name or names, if any.
Credits
Laws 2024, LB 1335, § 8, eff. July 19, 2024.