Proclamation, Rights of Entry Unfetter Army Ordnance Surveys, Detonation

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It was practically a secret for months. But in late August, state Department of Land and Natural Resources staff and members of the public (including Environment Hawai`i and Carroll Cox of Envirowatch) were starting to ask about the elusive emergency proclamation that was now governing ordnance surveys and cleanups throughout the state.

Those inquiries eventually led the governor’s office to post the proclamation on its website on August 29, DLNR public information officer Deborah Ward says.

Echoing the governor’s office, she adds that the failure to post it earlier was an oversight.

“People were busy,” she said.

Although few have argued that the military should not remediate its former training areas, the state’s handling of the U.S. Army Corps of Engineers’ most recent efforts has stirred controversy among environmental and cultural groups, as well as transparency advocates.

According to DLNR records, the pressure to get the Corps onto state lands and allow it to detonate munitions has been building for some time.

Under the Radar

In September and December 2009, the DLNR’s Land Division issued one-year emergency action rights of entry allowing the Corps to blow up unexploded ordnance in place on all state lands managed by the DLNR. In September 2010, a similar right-of-entry was issued by the department.

But on October 7, 2010, just to be sure it was in compliance with the state’s environmental review law, Chapter 343, the DLNR sought clarification from the state Office of Environmental Quality Control (OEQC) on whether the emergency detonation of munitions on state land fell within one of the classes of actions exempt from environmental assessment requirements.

On October 10, the then-OEQC executive director Katherine Kealoha informed then-DLNR director Laura Thielen that her office had extensively reviewed the proposed actions and exemption class categories suggested by the DLNR. After discussing the matter with a deputy attorney general, Kealoha said, “we concur that these proposed activities, as identified in your memorandum, fall within the exemption class one.” This class exempts from environmental review “operations, repairs or maintenance of existing structures, facilities, equipment or topographical features involving negligible or no expansion or change of use beyond that previously existing.

What the DLNR’s memo and the OEQC’s response failed to cite were any specific types of actions listed under class one that allowed for ordnance detonation. A review of some of the DLNR’s exemption lists suggests that exempting emergency ordnance detonation would require some creative interpretation, depending on where the detonation occurred. For example: 

•The department-wide list of actions under exemption class one covers such things as buoys and signs, and activities related to fire-fighting operations.

•The class one list for the DLNR’s Land Division exempts the emergency removal of boulders, rocks, fallen trees and other debris “necessary to maintain state lands in a safe condition,” but not when the proposed activity occurs on lands in the Conservation District.

•The exemption list for the Division of Forestry and Wildlife prohibits any exemptions for critical habitats, special management areas, and shoreline areas, among other things.

In any case, with Kealoha’s endorsement in hand, the Land Division recommended on December 9, 2010, that the Board of Land and Natural Resources delegate to the chair its authority to issue rights of entry to the Corps for ordnance surveys and remediation on public lands. Up until that time, the department and/or its divisions had quietly issued several rights of entry to the Corps for those very same purposes.

In justifying to the Land Board its opinion as to why no environmental assessment was needed, the Land Division cited exemption class one, as well as classes four (dealing with minor alterations of land, water or vegetation) and five (regarding data collection, research, experimental management, and resource evaluation activities that cause minor disturbance). The report did not state which list it was referring to (i.e., State Parks, Land Division, department-wide) or what specific exempt actions were involved.

When it came time to discuss the matter, Land Board chair and DLNR interim director William Aila said the item needed to be “deferred to the next Land Board meeting because of questions regarding Chapter 343 that needs [sic] to be answered first,” the meeting minutes state.

The matter never returned to the Land Board. Instead, on June 14, Governor Neil Abercrombie signed a proclamation suspending 25 state laws, including Chapter 343, to allow the Corps to do its work. The proclamation expires June 30, 2016.

Bait and Switch

Even though the proclamation suspended many statutes designed to protect lands and natural resources, the Corps still needed a right of entry from the DLNR.

On June 20, the Corps approached the Natural Area Reserves System Commission seeking permission to conduct a site investigation of the `Ahihi-Kina`u NAR even though the proclamation suspended statutes relating to the NARS. At the time of the hearing, neither NARS staff nor the commissioners appeared to know the proclamation existed.

After hearing a presentation by the Corps and its contractor, Element Environmental, commissioners asked what procedures were in place to ensure coordination with the DLNR to prevent or mitigate damage to the reserve and/or its resources.

How the Corps would work with DLNR staff would “all come down to when and how the right of entry is granted,” said one Corps representative. “The right of entry will contain conditions and part of those conditions will be complying with those processes that we’ve agreed to with the various departments within DLNR.”

In the end, commissioners agreed that they would be crazy not to let the Army pay for clearing the reserve of ordnance. With the understanding that concerns of the various DLNR divisions would be addressed in the right of entry, the commission unanimously voted to delegate its authority to department staff to add conditions and make recommendations that would be incorporated into a right of entry.

“My sense is that staff is involved and has some strong opinions,” commission chair Dale Bonar said. He added, almost prophetically, “The better the communication, the smoother it will go with everybody.”

How or whether the Corps respected those opinions was unclear as of late September. 

On July 29, the DLNR granted the Corps a right of entry covering a dozen project sites throughout the state. On August 1, it issued a separate one for the NAR. Neither contained any specific protective measures suggested during the NARS Commission meeting or any that might have come from the department’s other resource agencies. (The department issued a separate right of entry for the NAR to “make a point to the Army” that it was a special place, says Barbara Lee, a project development specialist with the Land Division.)

The blanket right of entry covers training areas at the Pali, He`eia, Kahana Valley, Makua, and various offshore islands on O`ahu; four maneuver areas at Waikoloa (including Hapuna Beach State Recreation Area) and the Kulani boys’ home on the Big Island; and in Maui County, the Maui airport military reservation and Moloka`i’s Makanalua bombing range (Kalaupapa National Historic Park).

Both rights of entry require the Corps to try to limit impacts on existing improvements and minimize inconveniences to the public. They also prohibit open fires or burning of any kind within the right-of-entry area and/or surrounding state property. The Corps will also have to repair or make appropriate settlements for any real property damages.

Any more specific conditions would most likely be included in
the Corps’ field work plans, which, according to both permits, were not required, but merely “anticipated.”

Condition 18 of the rights of entry states that the Corps and its contractors agree to allow the DLNR to make suggestions on the work plan. Those suggestions, however, would be “merely advisory and not intended to allow the Department to mandate any condition or comment into the work plan which is solely between the United States and its contractor or consultant,” the condition states.

Although condition 18 required work plans and reports to be immediately provided to the DLNR, none had been delivered as of late September, less than two weeks before the `Ahihi-Kina`u survey was to begin and weeks after surveys — yielding three detonations — had begun at Hapuna.

The Land Division, Lee says, is only obligated to receive work plans for unencumbered state lands covered by the rights of entry, although she expects to receive them for the other sites. Plans for lands controlled by other divisions, such as State Parks or DOFAW, would be sent there. NARS staff was not able to confirm whether it had received a final work plan for `Ahihi-Kina`u by press time.

In any case, Lee says, the Corps “has been pretty cooperative, as far as I understand.”

Backlash

After Cox broke the news about the contents of the proclamation on his September 11 radio show, the Honolulu Star-Advertiser ran a front-page article and a critical editorial about the governor’s lack of transparency. Eight environmental and cultural groups, including the Conservation Council for Hawai`i and KAHEA: the Hawaiian-Environmental Alliance, called for its rescission.

At a September 15 public hearing on Maui, Corps representatives spent a large part of their time explaining that the proclamation was not a license to run roughshod over Hawai`i’s cultural and natural resources.

The U.S. Army Corps of Engineers must still follow the Superfund law, the Endangered Species Act, and the National Historic Preservation Act as it clears munitions from state and county lands over the next five years, said Gary Shirakata of the Corps’ Honolulu office.

The proclamation, which suspends laws ranging from cave protection to noise pollution, simply avoids a duplicative state process, added Patty Billington, deputy district counsel for the Corps.

But it’s done more than that, says Sierra Club, Hawai`i Chapter executive director Robert Harris. In a press release last month, he stated that waiving the laws “undermines public goals of transparency, accountability, and community involvement. It also puts the public at risk of harm. Laws governing clean water, clean air, and hazardous materials all exist for a reason.”

A full week after Cox’s show, the governor’s office posted an explanation of its actions on its website and a promise to publicly release all emergency proclamations.

State rules were delaying the Corps’s efforts to locate and remove ordnance from some 37,000 acres of state lands, the site states.

“If a solution wasn’t found, Hawai`i was at risk of losing millions of federal dollars designated for the clean-up and the work would not be completed,” the site states. “The Abercrombie Administration sought a solution that was within the law and that got the job done with the necessary expediency. An emergency proclamation was the only solution. The question before the Abercrombie Administration was whether to maintain the status quo approach that was about to end this munitions clean-up effort, or to find a lawful solution that would secure the public’s safety.”

The website points to the recent discovery and detonation of munitions — two hand grenades and a high explosive mortar — within the Hapuna Beach State Recreation Area as an example of the effectiveness of the state’s action. 

“These munitions were safely destroyed in place. Without the emergency proclamation, it is likely that the grenade would still be on the beach today,” the website states.

In comparing the rights of entry to the proclamation, it seems that there may be more to come. Either that, or the proclamation goes beyond what the Corps actually needs.

Shirakata told Environment Hawai`i that while drafting the proclamation, the state had asked the Corps to create a list of projects it could likely complete within five years. Those projects are now covered by the DLNR’s two rights of entry.

The Big Island’s Popoki bombing target was one of the projects the Corps had listed, according to Shirakata, but it’s not included in any right of entry. A July report by the Corps also includes the Popoki site in its list of projects for FY 2012.

And although Kaho`olawe is not included in them, the proclamation suspends Chapter 6K of Hawai`i Revised Statutes, which relates to the Kaho`olawe island reserve.

Shirakata also suggested that the proclamation’s statement that available funding over the next five years was estimated to exceed $100 million is an exaggeration.

“One-hundred million dollars is not a good number,” he said, explaining that it was based on the Corps’ annual budget over the next five years. The Hawai`i district receives between $14 million and $16 million a year, Shirakata says. That would total at most $80 million over five years.

Whether the five-year budget is $80 million or $100 million, Corps representatives have stated that, because the FUDS program is voluntary, failure to secure permission to proceed in a timely manner may result in eligible remediation sites being dropped from the list forever.

When Environment Hawai`i asked whether funds for the work were ever in danger of lapsing and how much, exactly, the Corps encumbered once it received the ROEs, Corps community relations officers said they did not have those answers and suggested filing a Freedom of Information Act request.

Teresa Dawson

Volume 22, Number 4 — October 2011

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