BOARD TALK: Board Reduces Fish Farm Bond, Extends Its Deadline for Construction

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The controversial open-ocean fish farm proposed by Hawai`i Oceanic Technology, Inc. (HOTI) has won a couple of concessions from the state Board of Land and Natural Resources recently, despite calls from opponents to abandon the project.

On February 24, at HOTI’s request, the Land Board reduced the amount of the performance bond the company must initially provide. HOTI’s lease for 247 acres of open ocean off the Big Island’s Kohala Coast required a $100,000 performance bond for the first ocean sphere, to be posted 15 days after the lease’s effective date of October 28, 2010. When the company was ready to deploy more cages, it would have to return to the Land Board so the amount could be re-evaluated.

Shortly after receiving the lease, however, HOTI asked that it be allowed to post the bond once the first cage was deployed. On February 24, as a compromise, the Land Board directed HOTI to immediately post a bond equal to twice the annual rent ($3,500 or 1 percent of gross revenues) and pay the remainder once the first ocean sphere is deployed.

On March 9, the board also extended the construction deadlines in HOTI’s Conservation District Use Permit. Under the permit, HOTI should have begun construction last October, but as of last month, it was still awaiting a permit from the U.S. Army Corps of Engineers.

Although HOTI did not submit its request for an extension until January, rules of the Department of Land and Natural Resources allow a grace period of one year.

At the Land Board’s March 9 meeting, the DLNR’s Office of Conservation and Coastal Lands (OCCL) recommended that HOTI be given until October 23, 2013, to begin construction and until October 23, 2016 to complete it.

OCCL administrator Sam Lemmo noted that his office had received 300 to 400 letters opposing the extension, many of them complaining that the project had changed significantly and/or will have impacts on the marine environment. Some of the letters claimed HOTI’s construction delay was self-imposed.

Lemmo, however, said he didn’t see HOTI’s situation as any different from a lot of cases he reviews. “Major projects sometimes take a little longer to get off the ground,” he said.

With regard to claims that the project is fundamentally different from the one covered by the CDUP, Lemmo said that HOTI had not informed his office of any changes.

“I’ve heard there’s been changes made. Apparently the Army Corps permit they filed for has some nuances that are different,” Lemmo said. He added that he has told HOTI to let his agency know of any changes as soon as possible.

“A lot of times people make modifications that we can accommodate if they’re routine or minor. … When people come in with material changes — different location, different in nature — then we think of bringing it back [to the Land Board],” he said.

In any case, the OCCL must approve HOTI’s construction plans, he said, adding, “I tell them, if they walk in the door with different plans, don’t expect us to sign them.”

According to Suzanne Shriner of the non-profit Food and Water Watch, HOTI’s fish farm — which was originally going to consist of self-propelled, spherical fish cages — is now going to simply be a set of standard net pens.

“We have 2,500 members and 1,700 in the Kohala area that have signed a petition against this project. We would like to see the extension rejected or at the very least deferred until the Land Board meets in Hawai`i,” she said.

HOTI’s own environmental impact statement acknowledges that if the design reverts to traditional net pens, “they would be required to go through a new environmental review,” she said.

Native Hawaiian cultural practitioner Michael Kumukauoha Lee also opposed the permit, arguing that, as proposed, the fish farm could affect his traditional, customary practices. He added that because the Army Corps failed to respond to his comments on the HOTI’s permit application, the permitting process is now flawed.

“You can bet your bottom dollar a lawsuit will be flying,” he said. “Not listening to us is going to have a major effect on the fishery.”

Land Board chair William Aila asked Lee, “From a cultural practitioner perspective, how does a cage in the ocean prevent you from doing traditional customary practices?”

If the cage gets loose and damages the reef, that would affect his cultural practices, Lee said, noting that cages from another fish farm in west Hawai`i have already been lost at sea.

Despite the concerns raised, the Land Board voted unanimously to extend HOTI’s construction deadlines.

***

Kaua`i Lagoons Resort

Habitat Conservation Plan

On March 9, the Land Board approved an incidental take license and habitat conservation plan to cover injuries and deaths of seven federally listed bird species that occur on grounds of the Kaua`i Lagoons resort. The license and plan cover lighting, new construction, and operations at the resort, which is located between two runways at the Lihu`e airport.

“There are so many birds there, there has been take [during recent construction]. … The number of birds has been increasing so rapidly, the potential for take will only increase,” said Scott Fretz, wildlife program manager for the DLNR’s Division of Forestry and Wildlife, at the Land Board’s March 9 meeting.

In addition to mitigating take by controlling predators, the resort has established protocols for its employees to help them avoid impacting the birds, he said.

The endangered nene on the property are already being relocated in accordance with Gov. Neil Abercrombie’s proclamation issued a year ago. The nene, which have been determined to pose an aviation threat, are being moved off-island as part of a nearly $8 million, five-year relocation project funded mainly by the state Department of Transportation. The DOT is providing $5 million, the DLNR is providing nearly $3 million.

“Do the birds return?” at-large board member Sam Gon asked.

“We’ve only just begun, but it’s really rare for nene to fly between islands,” Fretz said. “We do move them to other sites on Kauai, but that doesn’t work. … The only way to solve the problem is to take them off island.”

With a handful of listed waterbirds living at the resort, Gon asked whether nene was the main concern.

“Aviation people will say any bird is a threat, but the focus has been on nene. They’re big, slow flying, and fly in flocks,” Fretz said.

So far, DOFAW has moved 50 of the 90 pairs of nene that bred at the resort last year. More than 200 birds have been removed in total.

“Our ideal target was to get all 90, but we’re not going to meet that. … We just need to do this for five years in a row,” he said.

***

Governor Finally Signs

New Dam Rules

Last month, Gov. Neil Abercrombie finally signed rules adopted by the Land Board in late November 2010 establishing new fees and requirements for dam maintenance. But despite the DLNR’s best efforts to prepare dam owners for the increased fees and standards laid out in the rules, the Hawai`i Cattlemen’s Association continues to object to them, according to DLNR water deputy William Tam.

Even so, the group chose not to air its concerns at one last hearing before the Land Board in late January.

“It has been six years since the Ka Loko dam break claimed seven lives, five years since the new Dam Safety Act, and 14 months since this board approved the new administrative rules,” wrote Carty Chang, chief engineer for the DLNR’s Engineering Division, in his January 27 report to the Land Board.

“Sixty- to eighty-year-old earthen dams served land owners well for decades, but they do not meet modern safety requirements today. The dams must be made safe. That is not an option. … DLNR must move forward with implementation of the new administrative rules,” Chang wrote.

When the DLNR submitted the rules to the governor in January 2011, it was with a request to defer signing them until after the department met with Hawai`i Farm Bureau and state Department of Agriculture representatives, as well as dam owners, to discuss their concerns about how the rules would be implemented.

From February to November 2011, the DLNR held several meetings where dam owners could express their concerns. Chang said he placed the status update on the rules on the board’s January 27 agenda to satisfy legislators wanting to give dam owners one more chance to address the board.

Not a single owner attended the meeting, but testimony submitted to the state Legislature indicates that they continue to have concerns about the increased effort and cost associated with upgrading their dams to meet state standards.

“While we might argue that many of these dams and reservoirs have met the safety ‘test of time,’ some regulators argue that the passage of time has made them unsafe,” wrote Alan Gottlieb in testimony submitted to the Legislature’s House Committee on Water, Land, and Ocean Resources for a January 30 hearing. Gottlieb, the government affairs chair of the Hawai`i Cattlemen’s Council, continued:

“As an analogy, what would happen if we required all buildings in downtown Honolulu to be retrofitted to today’s building standards to withstand a large earthquake, for the safety of the public? Of course that would be impractical and impossible, but this is what is being asked of our state’s dams and reservoirs. Furthermore, the new rules and regs use a ‘one size fits all’ mentality, imposing on dams that barely exceed the regulatory threshold the same requirements as for the largest dams in our state (in some cases over 250 times the size).

“We do not believe that the intent of the Dam and Reservoir safety law is to put farmers and ranchers out of business or to encourage them to decommission existing water resources. We believe these new rules and fees would lead to the closure of many dams and reservoirs, the opposite of what we need in this state if we want to increase our agricultural self-sufficiency and improve our food security.”

Testimony by the Hawai`i Farm Bureau Federation also suggested that dam owners continue to haggle with the DLNR over its hazard classifications of their dams.

Chang told the Land Board that the governor was expected to sign the rules soon, now that the board had given dam owners one more chance to comment on the rules, which the department drafted to carry out the Hawai`i Dam and Reservoir Safety Act of 2007.

Regarding the concern raised by the Hawai`i Cattlemen’s Association that the rules force owners to upgrade dams that don’t pose any threat, Tam told Environment Hawai`i that they need to provide the DLNR with evidence backing their claims before it can even begin to work on a solution.

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Feds, State to Prepare EIS

For Rodenticide Use in Hawai`i

The State Board of Land and Natural Resources has approved a memorandum of understanding between the U.S. Fish and Wildlife Service and the Department of Land and Natural Resources to jointly prepare a programmatic environmental assessment for rodent and mongoose control using rodenticides in addition to trapping.

“The development of a programmatic impact statement for rodenticide use in Hawai`i will decrease the time and cost associated with preparing compliance documents for future projects that utilize rodenticides,” states a February 24 report to the Land Board by DLNR Division of Forestry and Wildlife administrator Paul Conry.

— Teresa Dawson

Volume 22, Number 10 April 2012

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