(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.

Annotations

As the Department of Water Resources is a state agency within the meaning of the Nongame and Endangered Species Act, the issuance of a permit through its director would qualify as an "action" taken by a state agency. Therefore, the director may not issue permits which would jeopardize the continued existence of an endangered or threatened species, or result in the destruction or modification of their habitat. Central Platte NRD v. City of Fremont, 250 Neb. 252, 549 N.W.2d 112 (1996).

Before authorizing a diversion project, the Department of Water Resources must consult with the Game and Parks Commission and must obtain an opinion as to whether the project will jeopardize threatened or endangered species. However, the opinion, merely by being issued, does not impose affirmative requirements upon an application. Central Platte NRD v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847 (1994).

If the director of the state Department of Water Resources, pursuant to subsection (3) of this section, considers and relies on the opinion of the state Game and Parks Commission in making his or her decision about diversion of unappropriated waters, the applicant is affected by the statute and thus is entitled to challenge its constitutionality. This section does not violate the provisions of Article XV, sections 4, 5, and 6, of the Constitution of Nebraska. In re Applications A-10627 et al., 243 Neb. 419, 499 N.W.2d 548 (1993).

This section places two separate and distinct duties upon state departments and agencies, that of consultation with the Game and Parks Commission and, once done, an independent duty to insure that the actions they take or authorize do not jeopardize the continued existence of an endangered species or its habitat. Both the Department of Water Resources and the various natural resources districts are state departments or agencies within the meaning of this act. Little Blue N.R.D. v. Lower Platte North N.R.D., 210 Neb. 862, 317 N.W.2d 726 (1982).