DLNR Rule Amendments Expand Protection of Live Rock and Coral
The state Board of Land and Natural Resources has amended its rules protecting coral and live rock to improve the board’s ability to prosecute violations and impose penalties for damages.
Under the new rules, the definition of damage has been broadened. Instead of including only actions that cause “extensive injury,” “irreparable harm,” or death to coral or live rock, under the new rules, the living portions of coral or rock are considered damaged if an action causes any physical or physiological harm.
Prohibited activities are also broadened. It used to be that taking or damaging stony coal or live rock by using some kind of implement – i.e., a chisel or hammer – was the only prohibited activity. Now, except as otherwise provided by law, any take or damage to coral or live rock, or the intentional or negligent introduction of “sediment, biological contaminants, or pollution into state waters” is prohibited. However, if someone inadvertently damages less than half a square meter of coral by legally dropping an anchor not more than once a year, “[n]o liability shall be imposed,” the rules state. The same applies to inadvertent damages caused by someone stepping on coral.
The rules also specify how the Land Board might proceed in violation cases. Violators may be subject to criminal or civil administrative penalties, or both, and those penalties may be cumulative “to each other and to the remedies or penalties available under all other laws of this state,” the rules state.
When assessing administrative fines, the rules now specify that the Land Board may base the amount on the number of specimens of live rock, fish, invertebrates, or solitary or stony corals damaged. Where damage to coral colonies is less than one square meter, fines may be based on the number of heads or colonies damaged. In areas larger than one square meter, the board may base its fines on the number of square meters of damaged coral or live rock, the rules state.
During public hearings on the amendments, DAR received little to no opposition, according to that division’s report to the board.
In addition to solving problems that the agency has had in the past regarding prosecution, Tam said another important reason to amend the rules is to preempt potentially burdensome federal regulation. The federal government is proposing to list three species of corals in Hawai`i as endangered, including one that is relatively common here, he told the board.
“If it’s listed, we are going to have a lot of our biologist’s time writing to NOAA [National Oceanic and Atmospheric Administration] for Section 7 consultation,” he said, referring to the process under the Endangered Species Act that requires assessment of the impacts federal actions, or federally funded or permitted actions, have on threatened or endangered species.
“We get federal funds for everything now,” Tam said of DAR.
With stronger rules, the DLNR can argue that it doesn’t need federal help protecting endangered corals and that the state of Hawai`i has its own capacity to do it, he said.
The Office of Hawaiian Affairs and a few law students with the University of Hawai`i submitted testimony supporting the rule amendments, although one student suggested that the definition of pollution could be improved to include such things as heat and molasses.
During discussion by the Land Board, at-large member David Goode asked Tam how the rule amendments apply to activities that have received government permits, such as a pollution discharge permit from the state Department of Health.
Tam said the DLNR’s rules are independent of the Clean Water Act.
“This is about a natural resource damage issue,” he said. “It is simply saying, if you damage coral, because the state owns it, because it’s part of submerged lands, you may be liable.”
Currently, the department sometimes charges for removing a boat stuck on the reef, but not for damages the boat caused to state lands, he continued.
“This is a rule by which we say if you damage it, you violate our rule, Clean Water Act aside,” he said. “Remember, the Clean Water Act is aimed at pollutants in water. … it doesn’t give you a pass to go damage coral.”
If someone has a permit to discharge sediment into the ocean, and that discharge that damages state submerged lands, “then we have a claim separately,” Tam said.
Goode expressed his concern in cases where damage is caused by an action that had received government permits, that those government agencies could be included in any legal action.
“Depending on the amount of coral [damaged], the types of coral involved, it’s big money. … I also know the tendency is if there is a big event and they want to go after somebody, they look for deep pockets. It could be the county, it could be the state,” Goode said.
“The government is not liable for someone who exceeds their authority,” Tam replied.
He added that, unlike the Clean Water Act, the DLNR’s rules allow the Land Board to direct what happens with fines. Under the Clean Water Act, fines go into the U.S. treasury and no to the Environmental Protection Agency, he said.
“Financially, Clean Water Act fines have the whammy of taking money out of the state,” he said.
Goode said he was still worried about the implications of the rule amendments. Because corals are subject to a variety of stressors, including sea-level rise and warming ocean temperatures, “someone could say [the] DLNR should be going after folks who are contributing to these other stressors,” he said. “I can see … we’d all be dragged into it.”
With the new rule amendments, “the blanket got really big,” he said.
“You still have to prove cause,” Tam replied, adding that the rule amendments were necessary because it had become too difficult for the state to prove “what is an implement or not.”
Despite his concerns, in the end, Goode voted with the rest of the board to approve the rule amendments.
Biofuel Company Absence Leads to Deferral
No representatives from Hilo-based Hoku Kai Biofuels, LLC, showed up at the Land Board’s March 14 meeting to answer questions the board had about the complex biofuels project the company is proposing. As a result, the Land Board deferred acting on Hoku Kai’s request for a right-of-entry permit to conduct an environmental assessment, sample soils, and inspect and clean a 10-inch-wide underground pipeline on state land near the Hilo harbor.
The DLNR’s Land Division had requested approval-in-concept of a 65-year non-exclusive easement that the company needs to transfer biofuel — namely palm oil – from ships at the port to the former Shell Oil asphalt plant, now owned by Hoku Kai. The division also recommended that the Land Board approve a right-of-entry permit.
The pipeline is 1,635 feet long, but only a portion of that is controlled by the DLNR. Hoku Kai must also negotiate agreements to use parts of the pipeline under the jurisdiction of the state Department of Transportation’s Harbors Division and the County of Hawai`i.
According to a Land Division report to the Land Board, between 400 and 700 gallons of heating oil spilled from the pipe in 2008, while the DOT was removing about 300 feet of corroding pipeline.
“Based on available information, the pipelines, including the heating oil lines, have not been cleaned and may still contain both asphalt and heating oil,” the report states.
A Phase 1 environmental site assessment recommended several actions for both the asphalt plant as well as the properties surrounding the pipeline, including soil sampling, contaminated soil removal, and pipe removal or repair.
Before it can obtain an easement from the DLNR, the company must perform all of the recommendations in the site assessment, complete an environmental assessment, and obtain a finding of no significant impact (FONSI), the report states.
Given the past industrial uses, at-large Land Board member Sam Gon said he had a hard time believing Hoku Kai would be able to get a FONSI.
The Land Division’s Kevin Moore agreed and said the company will likely have to conduct a full environmental impact statement.
Land Board member David Goode noted that palm oil “has a lot of potential negatives on a worldwide basis.”
“Biofuels can be great or very harmful,” said Life of the Land’s executive director Henry Curtis. He suggested that before the Land Board allows the pipe to be used, it should know what kinds of biofuels Hoku Kai is planning to transfer.
“The fact they’re not at this meeting is not a good sign. I ask you defer until they show up,” he said.
“I went back and forth on this one. I am disappointed no one is here,” said Hawai`i island Land Board member Rob Pacheco, adding that he had no objection to deferring the matter.
“I concur, considering it’s a fairly complex [project]. We have a partial pipeline; it has some history and will need some environmental attention,” Gon said.
The board unanimously voted for a deferral.