New Laws, But Few Protections for Environment, Natural Resources

posted in: August 2012 | 0

The 2012 Legislature may not have passed any real blockbuster environmental bills, but several that did find their way into law represent important developments (or setbacks) for the long-term quality of the state’s natural resources and environmental health.

Here’s a short synopsis of several that represent the best and worst of the Legislature’s actions this year:

* * *

A Ban on Transport of Deer

That Makes Little Sense

Prompted by the presence of a substantial population of feral deer on the Big Island of Hawai`i and the recognition that existing law had no provision to stop further introductions, Senate Bill 3001 was introduced to make the practice illegal. Sponsors included Big Island senators Gil Kahele, Josh Green, and Malama Solomon.

As introduced, the bill would have applied to any “live game mammal.” However, after a hearing before the House Water, Land, and Ocean Resources Committee, chaired by Big Island Representative Jerry L. Chang, it was amended to apply merely to feral deer – which were further defined to mean animals that were not captured. In later hearings, this change was opposed in testimony from a number of different organizations, including the Coordinating Group on Alien Pest Species (CGAPS), the O`ahu Invasive Species Committee, and The Nature Conservancy of Hawai`i. As OISC noted, the amended bill “says that only un-captured deer are prohibited from being moved. This essentially allows a person [to] capture deer on one island and release it on another – thereby starting a new feral population.”

In other words, so long as a deer is captured, anyone possessing it cannot be charged under this new law, since the animal is now, by definition, not feral. Thus, anyone who is caught transporting a deer from, say, Maui to the Big Island cannot be convicted of transporting a wild or feral deer, since the deer being transported would presumably have to be in captivity for the duration of the transport.

In the unlikely event that anyone is caught red-handed (it is virtually impossible to imagine how this would occur), they would face penalties far more severe than those for other wildlife violations. First-time offenders face a mandatory fine of not less than $10,000 “and payment of any costs incurred in the eradication of any deer and the deer’s progeny… or by imprisonment of not more than one year, or both.” Second-time violators are to be fined at least $15,000, pay for eradication costs, and face up to a year’s imprisonment as well. Third or subsequent violations are to be penalized with a minimum $25,000 fine, payment of eradication costs, and possible imprisonment of up to a year.

Despite the patently absurd language on captive animals, the bill underwent no further substantial amendments. It was signed by Governor Neil Abercrombie on June 21, becoming Act 144 of the 2012 Legislature.

* * *

No Citizen-Suit Provision

For Habitat Conservation Violations

As with the bill intended to ban inter-island transport of game mammals, Senate Bill 2378 started off with a proposal to beef up enforcement of resource-protection provisions. By the time it made it to the governor’s desk, however, it represented a giant step backward.

As introduced, Senate Bill 2277 (sponsors were Mike Gabbard and Maile Shimabukuro) would have done primarily two things. First, it would have added a cost-recovery provision to the citizen-suit provision of the state law addressing protection of endangered species (Chapter 195D, Hawai`i Revised Statutes) and would have made such legal action possible against a person as well as state or county agencies. Second, it would have removed the sunset date on the ability of the Board of Land and Natural Resources to adopt habitat conservation plans. (At the time of the bill’s introduction, the Land Board’s power to adopt such plans would have expired June 30.)

The bill was welcomed by Land Board chairman William Aila, who suggested an amendment that would have added a further section, allowing parties to challenge the adoption of a habitat conservation plan (HCP) through the contested-case hearing process. The changes were supported by Earthjustice attorney David Henkin, who noted that his organization had worked with Aila’s department as well as the state attorney general in drafting the proposed language.

Testimony in support of the bill was submitted also by the Sierra Club, Conservation Council for Hawai`i, and Life of the Land.

The Land Use Research Foundation of Hawai`i, the Pacific Resource Partnership, and the Hawai`i Farm Bureau all supported removal of the sunset provision for habitat conservation plans, but strenuously objected to any expansion of the citizen-suit provision.

Not surprisingly, the cost-recovery language was dropped like a hot potato almost immediately as the bill made its way through the committee hearing process. When the Senate Committee on Judiciary and Labor heard the bill, it approved including language proposed by Aila concerning contested-case challenges to HCPs, but then removed the existing provision in Chapter 195D (195D-27) that allowed citizens to petition for a contested-case hearing on alleged violations to HCPs. The committee, chaired by Clayton Hee, explained in its report that this procedure “is unworkable.”

As the bill made it through the House, the deletions proposed by Hee’s committee stood, but the added language allowing for contested-case challenges to HCPs was removed. In its final form, therefore, the measure, far from strengthening the enforceability of HCPs, weakens it by taking away from citizens their ability to enforce HCPs through the contested-case procedure and denies them the opportunity to challenge their adoption in the first place.

Only the language that rolled back the sunset date on the Land Board’s power to adopt HCPs remained; under what is now Act 145, this will expire June 29, 2017.

* * *

Maui County Gets

OK For Vacation Rentals

On Agricultural Lands

Senate Bill 2341 (sponsored by Kalani English) initially opened the door to vacation rentals of up to 30 days on land throughout the state’s Agricultural District, even in the highly productive class A and B lands. It also would have deleted the requirement that any agricultural tourism operations be associated with a working farm or ranch.

DOA administrator Russell Kokubun opposed the measure, warning it “will cause the proliferation of vacation rentals and related uses and activities that are presently not permissible within the Agricultural District.”

“It will cause agricultural land values to rise,” he continued, “not because of their agricultural utility, but because of their value for vacation rental use. Inflated land values, in turn, will make entry into farming and continuation of existing farms difficult and less attractive. Nuisance complaints about agricultural activities (noise, dust, odors) by non-agricultural visitors in overnight accommodations are likely to increase.”

The City and County of Honolulu’s Department of Planning and Permitting opposed the bill (“The language could be interpreted to refer to hotels,” wrote DPP director David Tanoue). The Office of Planning also weighed in with objections (Jesse Souki, OP director, noted the bill was contrary to “the Administration’s New Day Plan to stimulate an agricultural renaissance in Hawai`i that would increase production and consumption of locally produced foods and increase food and energy security for the islands”).

Maui County Council Member Don Couch submitted email testimony (via his county email account) as an individual favoring the measure.

The Hawai`i Farm Bureau Federation partly supported the bill, provided that overnight accommodations in association with bona fide ag operations be governed by county ordinance.

Glenn Martinez, president of Hawai`i Farmers Union United, director of Hawai`i Aquaculture and Aquaponics Association, and owner of Olomana Gardens, a certified organic farm, recommended that the length of allowed stays be increased to 180 days, so long as the visits were related to “approved and accepted programs for farm interns such as the international and American WWOOFer program (World Wide Opportunities on Organic Farms).”

Round Two of the Senate hearings opened with a proposed restriction of stays to 21 days. This wasn’t good enough for Kokubun, who raised questions about how the measure could be enforced and who also noted that the link between ag activities and tourism was still missing. The OP also registered its objections once more.

But Andrew Rayner of the Hana Business Council weighed in by email, favoring the measure and saying that the prohibition on short-term stays on Ag lands only served “to increase public employment and multiply the compliance hurdles for small business people.” A dozen or so Maui residents (many from the Hana area) expressed similar views.

Ron Weidenbach, president of the Hawai`i Aquaculture and Aquaponics Association, said his group “strongly supports the intent” of the bill (contrary to Martinez’s earlier testimony). Council member Couch again endorsed the measure “as an individual member of the Maui County Council.” He was joined by the Hawai`i Association of Realtors and the Realtors’ Association of Maui. An unlikely supporter was found in the Windward Ahupua`a Alliance, with its president, Shannon Wood, saying Hawai`i needed to have alternative accommodations, such as “small footprint inns out in the country.”

The Sierra Club, Hawai`i’s Thousand Friends, Keep it Kailua, and a handful of individuals made up a weak choir of dissent.

On March 30, the bill underwent its final public hearing. By this time, it had been revised so that the short-term stays would be allowed in only counties with populations of between 250,000 and 500,000 people, and then, only when the county had adopted ordinances governing the activity.

Kokubun was not appeased, even though, as he (and others) pointed out, with the population restriction inserted into this draft, the bill applied to exactly no county in the state. He went on to note that in 2006, when the Legislature passed a bill allowing certain types of agricultural tourism, it “specified in detail the content of the county ordinances, and in addition to that, enabled the counties to require an environmental assessment as a condition to any proposed agricultural tourism use and activity…. We believe the addition of overnight accommodations dramatically alters the concept of agricultural tourism as originally intended, and if not carefully regulated, may cause the agricultural tourism activity to be the primary, rather than secondary, use of the agricultural land.”

In the end, the conference committee reported out a measure that applied only to a county “that includes at least three islands” and which has adopted ordinances regulating agricultural tourism activities. The effort to disengage tourism from “bona fide agricultural activities” failed, so any permitted short-term ag stays now must be in association with an active farm operation.

On June 25, Governor Abercrombie informed the Legislature of his intent to veto the bill. But on July 10, with no veto by then, the bill became Act 329 of the 2012 Legislature.

* * *

Clarification On Claims

To Accreted Lands

Back in 2003, the Legislature passed Act 73, which changed the definition of public lands to include oceanfront land that had accreted in front of private property. In 2005, landowners who wanted to claim such land as their own filed a class-action lawsuit, contending that Act 73 represented an unconstitutional taking. The Hawai`i Intermediate Court of Appeals generally agreed with the landowners in 2009, finding that the act was a taking insofar as it applied to privately owned land that had accreted before May 20, 2003 (when the law took effect), but that it did not represent a taking with regard to any land that may have accreted after that date.

House Bill 2591 was introduced (by Speaker Calvin Say, by request – presumably of the Department of Attorney General) to clarify Act 73, asserting that the state is owner of all lands accreted after May 20, 2003, and not making any claims to land accreted before that.

It seems as though few people disagreed with the intent of the bill, which was one of the few to make it across the finish line – as Act 56 – without any meaningful changes.

(Environment Hawai`i reported on the decision of the Intermediate Court of Appeals in our February 2010 edition: “Appellate Court Decision on Accreted Land Leaves State, Landowners Seeking Clarity.”)

* * *

Easing the Way

For Geothermal Development

Senate Bill 3003 (eight sponsors, including Kahele, Green, Solomon, and Donovan Dela Cruz), is an effort to streamline efforts to explore for and develop the state’s geothermal resources. As originally written, it would have exempted exploratory drilling for geothermal resources from any need to comply with Chapter 343, the state’s environmental disclosure law (requiring preparation of environmental assessments or environmental impact statements). That provision was stricken during the course of Senate hearings.

The bill – now known as Act 97 – also amends the state Conservation District law (Chapter 183C) to make both geothermal exploration and geothermal development permissible uses in all subzones of the state Conservation District. The state Land Use Law (Chapter 205) is also amended to allow geothermal resources exploration and development in the three other categories of land use (Agricultural, Rural, and Urban). The earlier requirement (in the now-repealed Section 205-2) that these activities only occur in designated geothermal resource subzones is eliminated.

Testimony generally in support was presented by the departments of Land and Natural Resources and Business, Economic Development, and Tourism. In its comments on the bill, however, the University of Hawai`i’s Environmental Center expressed its surprise that “this sweeping legislative proposal does not reference any research findings or policy analyses that explain why it might be useful to exempt geothermal resource exploration and development from the existing processes for land use designation and environmental review.”

Two decades ago, geothermal development on the Big Island was vigorously opposed by many Native Hawaiian groups. This year, several prominent Native Hawaiians spoke out strongly in favor of the bill specifically and geothermal development generally. Patricia Brandt, testifying on behalf of Innovations Development Group (“a Hawai`i based renewable energy development corporation owned by Native Hawaiians,” she stated), said the bill was “badly needed in order to facilitate the immediate expansion of the state’s geothermal public trust assets.” Mililani Trask, representing Indigenous Consultants, LLC, repeated Brandt’s testimony, almost word for word, on the need for the measure.

The Sierra Club, alone among environmental groups, submitted testimony in opposition. Exploration could hardly be considered a “minor” use of land, wrote its executive director, Robert Harris, since staging alone could “require the clear cutting of approximately one acre of land.”

“In addition,” he wrote, “roads might need to be built to allow for the trucks to transport the large drilling bits to the exploration area (reportedly around 55 meters long). In sensitive, pristine forests this type of excavation plainly is not ‘minor’.”

“Moreover,” he continued, “there is a potential to contaminate the aquifer. To the extent that drilling penetrates drinking water resources, it is worthwhile to ensure the potential risks are examined and considered before approving the project.”

The Office of Hawaiian Affairs also opposed the bill, objecting to the blanket categorization of geothermal exploration and development as permissible uses in all Conservation District subzones. A number of individuals testified, almost all opposed.

* * *

A ‘Clarification’

Of Last Year’s SMA Law

In 2011, the Legislature passed a bill that was intended to ensure that any Special Management Area permits required for coastal developments were processed and issued before final subdivision approval is granted by the counties.

That measure, Act 153 of the 2011 Legislature, excluded “final subdivision approval” from the list of actions that would be considered as “development.” As introduced, Senate Bill 2335 (now Act 239) would have changed that to “tentative or preliminary subdivision approval.” Sponsors in the Senate included Maui Sen. Kalani English.

The Office of Hawaiian Affairs, The League of Women Voters, the Sierra Club, and many others opposed the bill. The most vigorous opponent was Thorne Abbott, an SMA specialist and planner with Maui County, testifying in his private capacity. Abbott pointed out the unique way in which Maui processes subdivision applications: Maui, he noted, automatically approves preliminary subdivision applications, whereas the other counties automatically approve final subdivision applications.

Former Hawai`i County planning director Chris Yuen also testified in opposition, stating that the bill would “complicate and confuse the processing of subdivision applications in the SMA.” The bill, he went on to say, excludes initial subdivision approval from the need to obtain an SMA permit. But the SMA process may itself result in the project being denied or “in conditions that are inconsistent with the tentative approval, which would mean the project would have to get a new tentative approval… So the effort of the applicant and the reviewing county agency in the tentative approval would be wasted.”

“If the intent of the bill is to exempt subdivisions from needing SMA approval,” Yuen continued, “the language of SB2335 does not do that, and it would be a terrible mistake to exempt subdivisions from SMA permits. Subdivisions can have major environmental impacts and the permit process can result in public benefit. To take just one example, many public accesses to the shoreline have been obtained as a result of SMA permit conditions on subdivisions.”

In its final form, the measure, intended to clarify the 2011 act, now excludes from the definition of development “Final subdivision approval: provided that in counties that may automatically approve tentative subdivision applications as a ministerial act within a fixed time of the submission of a preliminary plat map, unless the director takes specific action, a special management area use permit if required shall be processed concurrently with an application for tentative subdivision approval or after tentative subdivision approval and before final subdivision approval.” Yep, it’s now very, very clear.

Other Measures

Inter-Island Cable System: Act 165 (Senate Bill 2785) sets forth a framework for the selection of a cable company to lay an undersea cable that will contribute to an inter-island electrical grid. It was introduced by Senate President Shan Tsutsui by request.

$250,000 for Space Tourism: Act 101 (Senate Bill 112) appropriates $250,000 to be used by DBEDT to obtain a “spaceport license” from the Federal Aviation Administration. “Space tourism is a potential billion dollar global industry that could significantly increase state revenues, provide new aerospace jobs, and rejuvenate economic development in the Kalaeloa area [`Ewa, O`ahu],” the bill, introduced by Will Espero, states in its findings section. “The Federal Aviation Administration is expected to issue a limited number of spaceport licenses and the legislature finds that it is crucial to position Hawai`i for that economic activity.”

The measure sailed through to passage with few amendments and just one “concerned citizen” testifying in opposition.

That lone dissenter was Penny Levin of Maui. “You’re kidding, right?” is how she opened her testimony. “This is a boondoggle from the Lingle administration that has already wasted our money and will continue to do so. In the budget shortage we’ve got now, this shouldn’t even be on the table.”

$162,540 for Quarantine Patrol: Act 128 (House Bill 1943, introduced by Big Island representative Clift Tsuji) will allow the state to match funds provided by the federal Office of Insular Affairs to restore the detector-dog patrols for the brown tree snake and other potentially invasive species. The funds are to support one inspector/detector-dog trainer and three inspector-detector dog handlers.

$30,000 for Bee Hive Research: Act 129 (House Bill 2100, another Tsuji bill) gives $5,000 to each of the counties and $10,000 to the University of Hawai`i at Hilo to conduct research into bee hives, specifically looking into the small hive beetle. “Loss of bee hives is a threat to the agricultural economy on all islands because bees are necessary to pollinate many crops,” the measure states in its findings section. “Accordingly, there is a need for the University of Hawai`i system to further research bee hives statewide.”

Legacy Land Revisions: Act 284 (Senate Bill 2785, sponsored by Dela Cruz and others) may have set a record when it comes to testimony in opposition. Of the dozens of parties testifying at its first hearing before the joint Senate committees on Water, Land and Housing, and Agriculture, exactly one – the Hawai`i Farm Bureau Federation – supported it. (The ADC was unopposed to its passage, but said it deferred to the positions of the DLNR and DOA, both of which were strongly opposed. Russell Kokubun, DOA administrator, characterized the proposal as a “counter-productive limitation.”) The bill, as initially drafted, would have restricted use of the Legacy Land funds to projects proposed by four state agencies: the departments of Land and Natural Resources and Agriculture; the Agribusiness Development Corporation; and the Public Land Development Corporation. It also would have allowed Legacy Land funds (derived from part of the state conveyance tax on real-estate transactions) to be used for unspecified “regulatory functions.”

The bill was revamped in later versions, allowing non-profit land conservation organizations (such as The Nature Conservancy, the Trust for Public Land, and the Hawaiian Islands Land Trust) to continue to participate in the Legacy Land program. The provision allowing expenditures for regulation was dropped.

In its final form, the measure makes it a requirement (not an option, as in the pre-existing law) for the Land Board, which approves expenditure of Legacy Land funds, to obtain an easement in favor of the board that restricts future use of the land to conservation or agricultural purposes. But then it adds new language that gives the board the authority to exempt the requirement for an easement: “The board may grant an exemption for any required easement under this section,” it states.

— Patricia Tummons

Volume 23, Number 2 August 2012

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