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.