DHHL Moves Forward with Plans for Homes in Area of Rare Plants

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The Department of Hawaiian Home Lands is a step closer to breaking ground for Village 4 of the Villages of La`i`opua project at Kealakehe, on the leeward coast of the Big Island, an area that is also one of the last places where the aupaka, an endangered shrub, and uhiuhi, an endangered tree, are found in the wild.

Last month, DHHL announced its finding of no significant impact (FONSI) and gave formal notice of its intention to request $6.1 million from the federal Department of Housing and Urban Development to help pay for costs of infrastructure, earthwork, and housing construction associated with the project that calls for building between 200 and 300 houses on about 60 acres of land.

The announcement of the FONSI was made despite the fact that none of the plant-protection measures the agency promised more than three years ago to undertake has been carried out. It also comes more than two years after the agency completed the environmental assessment of the project needed to satisfy the National Environmental Policy Act, which is a condition of HUD funding.

But after receiving public comment that was generally critical of the DHHL’s environmental review (relying on a 1990 plant survey), the agency has “elected not to use federal funds for the mass-grading work” for Village 4 “and will not be submitting a request for release of funds to HUD at this time,” according to William Makanui, DHHL project engineer.

“However,” Makanui continued in an email to Environment Hawai`i, “we still want to have the botanical survey completed … before the mass-grading starts.” Makanui did not rule out eventual federal funding for the project at some point down the line, however.

Timely Mitigation?
In 2005, DHHL contractors doing preliminary work in the area entered both the uhiuhi and aupaka preserve areas, possibly destroying some uhiuhi seedlings and coming within a hair of two aupaka plants. The incidents (reported in the February 2006 issue of Environment Hawai`i) alarmed staff at the state Department of Land and Natural Resources and prompted DLNR administrator Peter Young to ask DHHL administrator Micah Kane to investigate the “apparent breakdown in the implementation of the Mitigation Plan” to protect the endangered species.

The mitigation plan, agreed to but not signed by DHHL, set forth a number of protection measures, including clearing the aupaka and uhiuhi preserves of non-native vegetation and planting them with other native plant species representative of the lowland dry forest communities. Also, “implementation of mitigation actions will be phased in coordination with the overall development of the Villages of La`i`opua such that endangered plants occurring on or adjacent to specific areas of the project site will be adequately protected from potential impacts of development of those areas,” the plan states.

Last February, in his response to Young’s letter, Kane attributed the close calls to sub-consultants who had not been informed of the “importance of the preserve.” With respect to the uhiuhi bulldozing, Kane said, “we were unaware that the boundaries of the site (especially along the preserve) had not been flagged prior to any activity, usually a typical procedure that would have prevented such an occurrence.” And much the same condition explained the bulldozer straying into the aupaka preserve: “Again, we were unaware that the boundaries of the preserve again had not been flagged prior to this activity,” Kane wrote.

More than a year after the uhiuhi incident, flagging of the protected areas has yet to occur. According to William Makanui, the engineer at DHHL supervising the project, the uhiuhi and aupaka preserves called out in the mitigation plan “will be flagged by our contractor before any work is done.”

Environmental Disclosure
In June 2005, the DHHL sought approval from the state Office of Environmental Quality Control to use an environmental impact statement prepared in 1990 by the Housing and Community Development Corporation of Hawai`i, the original developer of the Villages of La`i`opua project, to satisfy compliance with Chapter 343 of Hawai`i Revised Statutes, the state’s environmental disclosure law, in anticipation of development of Villages 4 and 5. “Generally, the proposed development is consistent with those described in the FEIS” (final environmental impact statement), Kane wrote. The primary differences involved a reduction in density from that proposed in 1990. Whereas HCDCH proposed 424 houses on the 61 acres for Village 4, DHHL would build 285; and where HCDCH called for 190 units on 32 acres for Village 5, DHHL was scaling that back to 115 units on 23.6 acres.

Kane also proposed changes in mitigation for an archaeological site in the area of Village 4 and revisions to endangered species protection measures as called for in the 1999 Plant Mitigation Plan, which was worked out with representatives of HCDCH, the DLNR, and the U.S. Fish and Wildlife Service.

OEQC Director Genevieve Salmonson responded on July 19, 2005. “We concur with your opinion that an environmental assessment or supplemental EIS is not required for the changes to the project because the proposed development is generally consistent with project description in the previously accepted EIS.”

As recently as February of this year, the DHHL indicated to HUD that it was hoping to rely on the EIS prepared by HCDCH to satisfy its environmental disclosure requirements under the National Environmental Policy Act, triggered by use of federal funds. In an email to Robert Kroll of HUD’s Southwest Office of Native American Programs, Claudine Allen of HUD’s Honolulu office wrote that “DHHL is in the planning stages of a new project on the Big Island… DHHL has not determined yet, if or how much NHHBG [Native Hawaiian Housing Block Grant] funds will be used in this project. However, once DHHL decides that NHHBG funds (or any other federal funds) will be used in this project, DHHL will need to satisfy the NEPA before any project activities impacting the environment can begin or continue.”

Allen noted that the OEQC had signed off on allowing DHHL to use the earlier environmental impact statement to satisfy state requirements, but, she wrote Kroll, “DHHL cannot simply use the 1996 [sic] EIS and 2005 letter from the state Office of Environmental Quality Control to satisfy the federal environmental review requirements… Correct?”

Kroll responded that, under certain circumstances, federal regulations did allow the use of a prior EIS. “The regulations at 24 CFR 58.52 allow a responsible entity (DHHL) to adopt an EIS prepared by another agency,” he wrote, but added that “care should be taken to ensure that the EIS meets DHHL’s standards and is otherwise in compliance with” HUD regulations.

In fact, those regulations forbid the use of any EIS more than five years old. And even when using an EIS prepared within five years, the agency would still be required, by HUD rules, to document “that where the previous EIS called for mitigating measures or other corrective action, these are completed to the extent reasonable given the current state of development.”

In the end, the DHHL apparently decided to rely on the previous EIS to satisfy state requirements, but to invoke a 14-page environmental assessment it prepared in 2003-2004 (borrowing heavily on work done for the 1990 EIS) to comply with federal NEPA requirements. The “Finding of No Significant Impact” that it published in the October 4 West Hawai`i Today and Honolulu Star-Bulletin states that the finding is based on information contained in the “Environmental Review Record” for the project. The EA included in that record is little more than a fill-in-the-blanks template provided by HUD, but it does state that the developer and contractor “will be required to follow the specifications of the Mitigation Plan for the construction of the uhiuhi preserve boundary where it abuts DHHL’s property… Measures to establish the plant preserve, and efforts to further propogate [sic] and restore plant populations as well as maintenance of the preserve, will remain the responsibility of the state.”

Weighing In
With the publication of the FONSI, the window was officially opened on the period for public comment. Under HUD regulations, the public had 15 days to comment on the FONSI (until October 19).

Among those commenting on the FONSI was Paul Conry, of the DLNR’s Division of Forestry and Wildlife. “The current botanical survey for the area is outdated,” Conry wrote, “and a new plant survey as a condition to an environmental assessment for the 62.1-acre area would be requested to identify these endangered plants on the property.”

Conry noted that state laws to protect endangered plants have changed since the mitigation plan was approved, so that state law “now allows for incidental take under an approved habitat conservation plan.” “The previous mitigation plan developed in 1999 for this project may be the foundation for the current habitat conservation plan and incidental take permit. An alternative would be to avoid ‘take’ of any endangered species and redesigning the project to avoid the plants,” Conry wrote. Finally, he said, the use of federal funds triggers the requirement, under the Endangered Species Act, for consultation with the U.S. Fish and Wildlife Service.

Jill Wagner, who has been visiting the area at least once a week to take care of the rare plants in the area, also submitted comments on behalf of the Friends of the Kekaha Dry Forest Community. “We have worked hard over many years to promote the preservation of the dryland forest, and have educated the public about the fragility and rare beauty of the flora and fauna that comprise the dryland forest and coastal regions of Kona,” she wrote. “I and other members of FKDFC are concerned that the current mitigation measures you anticipate undertaking for the uhiuhi and other rare and endangered native plants in this area are insufficient.”

Wagner pointed out that the 2004 environmental assessment fails to commit the agency to the full range of mitigation measures called out in the mitigation plan, which requires actions well beyond simply building a boundary wall between DHHL’s property and the adjacent uhiuhi preserve. “In addition,” she wrote, “there is to be a firefighting plan and fire contingency plan, training of surveyors, and additional measures…. Your environmental review record contains two pages referring briefly to a fire contingency plan proposed by the Housing and Community Development Corporation of Hawai`i in 2002, but at no time do you reference this in your environmental assessment or otherwise incorporate it as a condition of the development of your project.”

“Finally, and not least,” Wagner continued, “I am concerned about what seems to be a deliberate decision by the DHHL to exclude public input on this project. I say this because your environmental review record has been completed and sitting unannounced on a shelf in your office for more than two years; the Finding of No Significant Impact was signed by you on June 8, 2004. Yet only on October 4 were keen-eyed members of the public informed, in the legal classifieds section of West Hawai`i Today, of the 15-day window for comment on this project.”

Wagner noted that HUD rules allow for the public comment period to be extended to a full 30 days when certain conditions apply, including when “there is considerable interest or controversy concerning the project; the proposed project is similar to other projects that normally require the preparation of an EIS; or the project is unique and without precedent.”

“I believe all three conditions apply in this case (although the … rule requires a time extension if even only one applies)…. With the uhiuhi in the project area being among the last naturally occurring populations to be found anywhere in the world, any project occurring in its immediate area would be of considerable interest or controversy.”

Marjorie Ziegler, executive director of the Conservation Council for Hawai`i, also asked for an extension of the public comment period. In addition, Ziegler challenged the FONSI “given the impacts of the proposed action to candidate and listed endangered species.”

“The wahine noho kula, or aupaka … is extremely rare… The project area also provides habitat for additional species of concern, candidate, and listed endangered Hawaiian plants, including uhiuhi, `aiea (Nothocestrum breviflorum), ko`oko`olau (Bidens micrantha ssp. Ctenophylla), and maiapilo (Capparis sandwichiana).”

CCH, Ziegler said, objects “to the release of funds by HUD until the project is in full compliance with environmental statutes.”

Meanwhile, in Kealakehe
The rarest of the rare plants in Kealakehe are not faring well, according to Wagner. “I bring water in dry times and am trying to collect seeds, but I haven’t got a lot.”

The aupaka, which “were doing really well until the bulldozing incident” in August 2005, “are now looking kind of peaked.” Tracks in the vegetation indicate that other heavy equipment has been in the area recently. “There’s so much bulldozing,” she said, “it makes me nervous.”

As a condition of the first residential subdivision in the Villages of La`i`opua, two uhiuhi preserves were set aside in the midst of houses. One of the trees died some time ago, but the other one had been doing well, cared for by a neighbor, until recently, when, Wagner says, “somebody went in and took a piece of it,” leaving it “really sick and in bad shape.”

“They took babies as well,” she said, referring to small seedlings that had begun to emerge from the ground below the tree.

“It’s discouraging,” she said.

As bad as the uhiuhi’s plight is, the aupaka has Wagner even more worried. “I’m really concerned about the aupaka, too. I just don’t know what to do.”

— Patricia Tummons

Volume 17, Number 5 November 2006

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