Board Talk

posted in: Board Talk, September 2011 | 0

Changes to Conservation District Rules Have Natural Resource Managers Worried

“We’re all adults here. What are they really concerned with?” Sam Lemmo said. Then, answering his own question: “They don’t want to be subject to an EA.”

Under the proposed Conservation District rule amendments, an environmental assessment (EA) would have to accompany any application for a Conservation District Use Permit or site plan approval. Unless, that is, the proposed action qualifies for an exemption from Hawai`i’s environmental review law, Chapter 343 of Hawai`i Revised Statutes. In that case, an applicant would have to provide proof of a qualified exemption or request that one be granted.

At the August 12 meeting of the state Board of Land and Natural Resources, representatives from both public and private resource management organizations urged the board to remove new language the Office of Conservation and Coastal Lands had only recently inserted into the proposed amendments. 

In particular, they wanted to see clarified or deleted the requirement that the Department of Land and Natural Resources grant site plan approval of resource management activities in areas greater than one acre.

Lemmo, administrator of the OCCL, explained to the board that a site plan approval might require an environmental assessment or an exemption, taking conservationists down a road they’d rather not go.

“I can’t believe they want to put themselves up here” — holding one hand above his head — “and everybody else down here” — his other at table level — “because they’re doing resource management,” Lemmo said.

“I want a letter,” he said, referring to site plans, which is one step below a Conservation District Use Permit.

“If you want to put in language that gives them an escape, I don’t have a problem with that,” Lemmo told the board. But, he warned, conservationists are not the only stakeholders the board has to consider.

When it came time to vote, the Land Board approved the rules with several changes, including some recommended by the DLNR’s Division of Forestry and Wildlife and The Nature Conservancy of Hawai`i that reduced the number of resource management activities that require site plan approval.

December Version

Revisions to the state’s Conservation District rules have been a long time coming, with the Land Board approving the last substantial changes more than 20 years ago. Since then, the department has had a lot of time to learn what sections need improving and what outright mistakes need correcting, Lemmo told the board.

The OCCL drafted a suite of changes last December, but decided to wait until after the new administration was in place to request board approval.

The December proposal added renewable power generation, telecommunication, beach restoration, and land and natural resource management as permitted uses in the protective subzone of the Conservation District. 

It also amended one section to allow invasive species removal without board or departmental approvals. Previously, the rules required such activities to have a departmental Conservation District Use Permit.

Also exempt from DLNR or Land Board approval under the December version:

 

•Removal of invasive, dead or diseased trees for non-commercial purposes; removal of trees posing a public safety hazard;

•Basic land management, including routine weed control, clearing of understory, and tree pruning — involving no grading or grubbing, in accordance with state and federal laws.

•Planting of native and endemic plants and fence maintenance; and

•Clearing of sand or silt from stream mouths, canals, drainage pipes, or other features.

Regarding invasive species removal, native planting and fence maintenance, the proposed rules did include one caveat. It stated, “The department or board reserves the right to require site plan approval, departmental or board approval if it is determined that the proposed action may cause secondary impacts on natural or cultural resources, or the surrounding community.”

One-Acre Trigger

In early August, the OCCL issued a new proposal that included the requirement of a site plan approval for the removal of invasive species and for basic natural resource management activities in areas greater than one acre.

The OCCL’s report to the Land Board does not explain the reason for the change, but a letter Big Island attorney Margaret Wille sent to Lemmo in January indicates that not everyone supports large-scale invasive species removal without some kind of government oversight.

Conservation of mature trees is key to curbing erosion and countering rising temperatures, air pollution, and arid conditions, she wrote.

“For this reason, any proposal to remove or kill mature trees and other substantial vegetation within the Conservation District should be minimized and subject to department oversight and review — regardless of whether the tree is a ‘native’ or ‘non-native’ species,” she wrote.

The new one-acre limit, which seems to address Wille’s concerns, took the conservation community by surprise and representatives from various conservation agencies immediately began submitting testimony against it.

The state’s invasive species committees and watershed partnerships, which receive public and private funds, lack the expertise and resources to prepare site plans, permit applications and environmental assessments, wrote David Duffy, head of the University of Hawai`i’s Pacific Cooperative Studies Unit, which employs most committee and partnership personnel.

“I will have to ask UH lawyers to either prepare them or to sign off on them. Our lawyers are heavily overworked and thus slow. Unfortunately, little fire ants and coqui frogs do not need EAs or site plans to invade new territories. In 2001, bureaucratic obstruction prevented my folks from going after the coqui on the Big Island before it was fully established. An evening stroll in Hilo will show where that got Hawai`i,” he wrote.

Maui Invasive Species Committee (MISC) manager Teya Penniman pointed out that her agency may remove invasive species across tens of thousands of acres, but only treat a small area at any one time.

In 2010, MISC surveyed approximately 54,500 acres for miconia and removed 54,400 plants over thousands of acres, but treated an aggregate area of only 5.44 acres.

“For pampas grass, in 2010, we surveyed 26,200 acres, removed 4,900 plants, and ‘treated’ approximately 1/2 acre. Under the proposed rules, work on pampas grass presumably would not trigger requirements to acquire a site plan approval or permit. However, under the draft language it is not clear whether a site plan, permit, or environmental assessment would be required for miconia,” she wrote.

MISC has worked with nearly 400 property owners over the last decade, she wrote.

“Under the proposed rules, removal of invasive species in excess of one acre will require site plan approval. What constitutes an acre? Does this mean a contiguous acre? A total of one acre treated for specific species within a one-year timeframe, regardless of the area over which it is proposed? What constitutes a site? Is it defined by property ownership? If the latter, preparation and submittal of individual site plans and environmental assessments will effectively halt our operations as we create plans and wait for approval,” she wrote.

Paul Conry, administrator for the DLNR’s Division of Forestry and Wildlife, proposed several changes that would have clarified that fence maintenance and “spot treatment” of invasive species and native plantings would not require any departmental or Land Board approvals. New fenced exclosures in an area greater than an acre would require a site plan approval, Conry proposed.

Conry also asked that the board delete the caveat regarding possible board or departmental
approvals for invasive species or natural resource management in areas less than one acre.

Lemmo said he thought the rules, as he proposed them, could be interpreted “to the benefit of DOFAW and DOFAW partners.”

Responding to a comment by Land Board member John Morgan that his company, Kualoa Ranch, has removed hundreds of albizia without permits, Lemmo said, “That’s fine. We have a section [on that]. You can take out invasive trees.”

That said, Lemmo still did not support Conry’s recommended language regarding spot treatment because it was “too obtuse” and open to mistreatment.

TNCH’s Mark Fox said the one-acre trigger had “caused quite a bit of consternation. It’s pretty arbitrary when you’re working across landscapes.” He added that while he was heartened by Lemmo’s interpretation of the rules — that some spot treatment would be allowed — “that’s not how they’re written.”

Fox suggested that the board exempt departmental partnership programs with management plans on file with the department from the requirement to get site plan approval for invasive species removal and resource management.

Bob Nishimoto, a biologist with the DLNR’s Division of Aquatic Resources, wanted the board to delete the one-acre restriction altogether.

“We prefer the December version,” he said, adding that a one-acre limit would hamper aquatic invasive species removal in areas such as Maunalua Bay and Kane`ohe Bay.

Environmental Assessments

Lemmo pointed out that the real concern among conservationists was not that a site plan was required for activities exceeding one acre, but that the site plan application needed to be accompanied by an environmental assessment or an exemption.

“I don’t see how it makes any difference,” deputy attorney general William Wynhoff, noting that any activity or use of Conservation District or state lands can trigger an environmental assessment. He pointed out that the DLNR has already been sued over resource management activities within the Conservation District.

Attorney Greg Kugle said from the audience that the difference is whether the approvals involved were discretionary or ministerial.

Lemmo disagreed. “This issue is what you’re doing. … If they do something that violates Chapter 343, they’re going to have to pay the piper,” he said.

In the end, the Land Board chose not to adopt Conry’s recommendation regarding spot treatments, but did include the language Fox recommended regarding departmental partnership programs. The board also approved miscellaneous changes requested by Lemmo and a couple of people owning land in the Conservation District.

The rules must still be reviewed by the attorney general’s office to determine whether any substantive changes that would require further public hearings.

* * *

New Boating Rules Limit

Commercialization in Hanalei

For more than 20 years, commercial boating in Hanalei Bay has divided the community on Kaua`i’s north shore. In the 1990s, the state failed to enforce its rules for the area and boating ran amok. In 2000, it tried to ban commercial boating in Hanalei altogether, but lost a subsequent court battle with three boats that had state permits to operate. Since then, the DLNR’s management of the area has been in limbo.

On August 12, the Land Board approved a new set of rules — crafted largely by the community — attempting to control commercial activities in Hanalei Bay. The rules, if signed by the governor, would allow the following: 

•Up to five commercial boats to operate out of Hanalei Bay. Through attrition, that number could shrink to three. Boats shall carry no more than 30 passengers a day.

•Up to two commercial use permits for kayak tours from the Hanalei launch ramp, with a maximum of eight kayaks per trip and no more than 30 passengers a day.

•Up to eight commercial water sports permits for activities such as diving, snorkeling, surfing or stand-up paddling. Each permit covers one instructor per day, with a maximum of four clients per instructor at any one time.

At the Land Board’s meeting, Kaua`i member Ron Agor and Ed Underwood, administrator of the DLNR’s Division of Boating and Ocean Recreation, agreed that the bay could probably handle five commercial boats, and noted that the idea to reduce the number to three came from the community.

“This is the first time the board has been interested in solving Hanalei,” Brian Lansing told the board. Lansing owns Na Pali Catamaran, one of the three companies that successfully sued the board in 2000 after it voted to ban all commercial boating in Hanalei.

Although the courts found that the state could not limit commerce in navigable waters, Lansing seemed to welcome the current attempt to limit the number of permits to those who had them in 2000. 

“We’ve operated against unbelievable competition,” Lansing said of the rise in unpermitted commercial vessels in Hanalei.

He generally supported the rules, but asked that the daily passenger limit be raised from 30 to 45, which would allow his operation to make three, rather than two, trips in a day.

To boatyard owner Michael Sheehan, the limits on commercial boating would have a serious financial impact on his business. He told the board he spent $1.5 million building a boat ramp in Hanalei to benefit boating in the area.

“I see nothing in the rules that permittees must operate from that boatyard,” he told the board.

Although various violations led Kaua`i County to revoke Sheehan’s decades-old permits for the boatyard earlier this year, Sheehan said he is negotiating with the county to sell a portion of the yard to expand the county’s park.

He also argued that the rules still amount to a partial ban.

“Somebody’s going to challenge it. The [federal] commerce clause still rules,” he said, adding that he didn’t think the rules would solve much because the limits were not rooted in any “scientific, factual basis.”

The Land Board ultimately approved the rules as proposed, but board member Agor instructed Underwood’s division to monitor the impacts of 150 commercial vessel passengers/day and assess whether the bay could handle 75 more, as Lansing had requested.

“Personally, I don’t think it will be an impact, but I’m following the community’s lead,” Agor said.

Regarding Sheehan’s boatyard, Agor said he disliked the fact that vessels use the beach to load their passengers. He recommended that the DLNR assist the county in establishing a central launching area, an effort that could include purchasing the boatyard.

* * *

Board Removes Geothermal Zone

At Wao Kele O Puna

On August 12, the Land Board unanimously supported the removal of the geothermal resource subzone designation at Wao Kele O Puna, but it was unclear whether the Division of Forestry and Wildlife’s recommendation that the removal occur via a contested case hearing was necessary.

In late 2009, the DLNR and the Office of Hawaiian Affairs permanently filled the two geothermal wells on the Big Island property, purchased from Campbell Estate with $3.4 million in funds from the federal Forest Legacy Program. Under a memorandum of agreement to manage the 25,000 or so acres at Wao Kele O Puna, the DLNR and OHA must remove the geothermal subzone designation.

The state attorney general’s office has determined that, based on a 1996 opinion by then-deputy AG William Tam, removal can only occur after a contested case hearing, DOFAW’s report to the board states.

To which, board member David Goode asked, “Who are we contesting with?” 

Tam, who is now the DLNR’s deputy director for water, took the opportunity
to dispute the interpretation of his 1996 opinion. He argued that unless someone contests the removal of the geothermal subzone, “there is nothing to contest. You can simply vote on the merits that the landowner doesn’t want to do geothermal and it doesn’t fit within the purpose of the purchase. … A contested case would be a non sequitur; it’d be like form over substance.”

“I’m afraid I can’t agree with that,” said William Wynhoff, the deputy attorney general advising the board. Hawai`i Revised Statutes state that the withdrawal of a geothermal subzone shall be conducted under Chapter 91, which governs contested case hearings. Wynhoff said that unless the Attorney General’s office issues a new opinion on the matter, a contested case will be required.

“I didn’t know my question would open up such a lively debate,” Goode said.

In the end, the board approved DOFAW’s recommendation to authorize the removal of the subzone, a contested case, and the appointment of a hearing officer.

* * *

Tradewinds Timber License Ends

Tradewinds Forest Products, LLC, is finally walking away from its timber land license for 9,000 acres within the state’s Waiakea Timber Management Area on the island of Hawai`i.

And the state is abandoning the $210,000 the company would have owed under license conditions imposed earlier this year.

On July 7, the company informed the DLNR that it had been unable to raise the money for a veneer mill and asked that the license be terminated. What’s more, the company asked that its obligations to pay the $210,000 in advance stumpage payments and forbearance fees for the latter half of 2010 be forgiven.

“The $758,500 of past extension fees and advance stumpage fees made by Tradewinds will be retained by the state, and Tradewinds will neither have an obligation to make additional payments under the license nor retain any residual rights to harvest any pre-paid timber. Furthermore, any financial obligations of Tradewinds that may be outstanding will be extinguished,” the Division of Forestry and Wildlife recommended in its August 12 report to the Land Board.

Without much discussion or any public testimony, the board unanimously approved DOFAW’s recommendation.

Teresa Dawson

Volume 22, Number 3 — September 2011

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