Legislature Sets Up New Panels To Advise on Water, Game, USTs

posted in: September 2016 | 0

The 2016 session of the Hawai`i Legislature will not go down as one notable for its environmental achievements. On the whole, few bills having a significant impact on the environment made it through to the finish line.

Still, several measures that did become law could make environmental protection more difficult or divert resources from agencies charged with protecting natural resources that are already strapped for funds.


* * *

Water Security Advisory Group

House Bill 2040 (Act 172) establishes a Water Security Advisory Group – ostensibly to advise the Department of Land and Natural Resources – with a sunset provision after two years. The purpose, the bill says, is to “enable public-private partnerships that increase water security by providing matching state funds for projects and programs that: (1) Increase the recharge of groundwater resources; (2) Encourage the reuse of water and reduce the use of potable water for landscaping irrigation; and (3) Improve the efficiency of potable and agricultural water use.” To that end, the measure appropriates $750,000 for the current fiscal year to the Department of Land and Natural Resources.

The legislation is the result of an initiative that began three years ago under the auspices of the Hawai`i Community Foundation. In order to “develop a forward thinking and consensus-based strategy to increase water security for the Hawaiian Islands,” it stated, it assembled large landowners, agency representatives, selected organizations (the Hawai`i Farm Bureau, the Hawai`i Cattlemen’s Council, for example), individuals (such as Patrick Kobayashi of the Kobayashi Group and Dennis Teranishi, head of the Pacific International Center for High Technology Research), and academics.

Although most of their work was conducted out of view of the public, last fall, HCF briefed the state Commission on Water Resource Management on the results of the group’s work. One of the chief recommendations was for the state to establish a “water security and innovation fund” with an initial appropriation of $5 million, “to be matched by a minimum of $1 million in non-state funds.” The ultimate goal is the development – through re-use, efficiency measures, and increased groundwater recharge – of an additional 100 million gallons a day of available potable water across the islands.

The bill breezed through two House and two Senate committees. Not a single piece of written testimony was submitted in opposition. The various standing committee reports were uniformly uncritical.

Suzanne Case, chair of the state Board of Land and Natural Resources, testified in support of the measure, “provided that this appropriation does not adversely impact appropriations or other priorities” in the governor’s budget request or any existing funds. Case also wanted the legislators to include sufficient funds for staff oversight. (Case, it probably should be noted, was one of the members of the HCF group that worked on the water security initiative.)

The measure specifies who is to be included in the 13-member advisory group. There are to be two representatives from each of the county water boards (the manager and chief engineer); the director of the Commission on Water Resource Management; and four additional members selected by the chair of the Board of Land and Natural Resources (one with “knowledge of agricultural water storage and delivery systems;” one “from a private landowning entity that actively partners with a watershed partnership;” one “with knowledge, experience, and expertise in the area of Hawaiian cultural practices;” and one “representing a conservation organization”). None is subject to confirmation by the Senate. Five members constitute a quorum, according to the act.

Although the group is to be advisory, it is not at all clear from the language in the bill just who within the DLNR is to receive and act upon the group’s advice. There is no mention of any role of the Land Board or Water Commission, except for the Land Board chair’s role in appointing council members and the inclusion of the Water Commission’s director as an ex officio member. Nor is any division within the DLNR tasked with holding the purse strings.

As to whether the deliberations of the advisory group are subject to the state’s open-meetings law or open-records law (Chapters 91 and 92 of Hawai`i Revised Statutes), Act 172 is silent on that point. When the question was posed to him, Jeffrey Pearson, deputy DLNR director for the Water Commission, said he would “refer to our deputy attorney general on this,” adding that in his opinion, “if there is a discussion on spending state funds it will be subject to [the] Sunshine Law.”

However, section 4 of the measure seems to give the new advisory group a way for it to deliberate out of the public’s view.  The DLNR, it states, “may contract with an independent non-profit entity to carry out the duties and activities associated with this Act.”

Pearson indicated that this would likely occur, although nothing had been done by press time. Regarding selection of the members, Pearson stated that the chosen non-profit “would also work with the DLNR board chair in forming the group members.”

Finally, Pearson was asked what entity within the DLNR would receive the advice of the advisory group. Pearson replied that the group itself would probably have the power to expend the appropriated funds. “I am under the impression that the group will make the decision on the use of the funds,” he wrote in an email to Environment Hawai`i – although, he added, “I will consult with our AG on that question.”

The issue of water security was the subject of another measure passed by the Legislature and signed into law. House Bill 1749 (Act 170) amends the state Water Code (Chapter 174, HRS) by adding a sixth objective to be included in the state Water Plan: “The utilization of reclaimed water for uses other than drinking and for potable water needs in one hundred percent of state and county facilities by December 31, 2045.”

Both Suzanne Case of the DLNR and Scott Enright, chair of the Board of Agriculture, testified that the goal may not be achievable. Case pointed out that most state-owned facilities “are not proximal to a wastewater reclamation facility” or recycled water distribution system. To achieve the stated objective, she continued, “either reclaimed water would have to be trucked in to each facility on a regular basis or separate dual water systems or many new wastewater reclamation facilities would have to be constructed throughout the state, which would be extremely costly.”

Case also pointed out that the state Department of Health had released updated Reuse Guidelines in January of this year. The guidelines “identify areas within the state where recycled water application is conditional and restricted.”

“It is very likely that state facilities are located in Conditional and Restricted Areas,” Case said.

Enright requested clarification from the legislators. “If the intent is a proposal to treat and reuse on-site all potable water used, then we believe that is a laudable goal, which unfortunately may be extremely difficult to achieve,” involving the treatment of water on-site to “an acceptable Department of Health standard.”

While “regionalized” wastewater treatment technology may be available, Enright noted, “we are unaware of how scalable these localized treatment plants are.”

The Senate, recognizing the concerns raised, amended the bill so the new objective would be to simply increase the use of reclaimed water at state facilities, “where feasible.” The conference committee, however, reverted the bill back to its original form, which called for 100 percent reclaimed water utilization.

(For more on the Fresh Water Initiative, see the October 2015 edition of Environment Hawai`i, “Hawai`i Community Foundation’s Council Unveils Blueprint for Freshwater Security.”)


* * *

Advisory Commission

On Game Management

For hunters in Hawai`i, the 2016 Legislature gave a lot and took maybe a little.

First, the take: House Bill 799 (Act 111) allows state employees and contractors to shoot animals from the air. Until 2012, the Department of Land and Natural Resources was able to use aerial hunts to control animals in sensitive areas. Testimony from acting DLNR head Carty Chang in 2015, when the bill was first heard by the House Water and Land Committee, pointed out that the DLNR’s aerial shooting policies “were updated and approved by the Board of Land and Natural Resources in 2006 following a publicly vetted process.”

Chang’s testimony ran to five pages and included 38 footnotes. Among the points he raised (and documented) was the fact that, in many places, “aerial shooting is the only method to control hooved animals due to remote, steep, and dangerous terrain, such as the 3,000-foot-high cliffs of Moloka`i’s north shore. Placing staff or the public into such areas is either impossible or creates an unacceptable safety risk.” He noted that the DLNR had been conducting aerial shooting to protect natural resources “for decades.”

All that changed in 2012, when the Hawai`i County Council, responding to pressure from the hunting community, enacted an ordinance that made aerial control of animals illegal. U.S. District Judge J. Michael Seabright issued an order a few months after the ordinance took effect that overrode the county action – but only for aerial shoots on Mauna Kea needed to reduce numbers of sheep in palila critical habitat.

In addition, hunters across the state began to point to Section 263-10 of Hawai`i Revised Statutes, a law passed by the Territorial Legislature in 1923 that prohibits aerial hunting. The very title of the act – “The Uniform Aeronautics Act” – and the reference in its language to “aeronauts” suggest its origins in an age when air travel was a novelty.

The Nature Conservancy of Hawai`i pointed this out in its testimony. The law, it stated, was “part of a larger Uniform Aeronautics Act being adopted in mainland states at a time when the military was urging states to standardize basic civilian flying regulations.” There was no evidence that the measure was intended to limit state action, its testimony continued, and, in fact, there was no idea at the time “that controlling animals in this way would be an important tool for meeting the state’s public trust responsibilities a century into the future.”

In 2014, after trying and failing to work out an agreement with Hawai`i County prosecutors that would immunize the state and its contractors from prosecution should aerial hunts continue outside of palila critical habitat, the state itself challenged the ordinance in 3rd Circuit Court in 2014. Judge Glenn Hara dismissed the lawsuit in December of that year, meaning that the state was restricted, at least in Hawai`i County, to aerial shooting only on Mauna Kea.

HB 799 changes that, giving the state legal authority to have its employees and contractors “intentionally kill or attempt to kill any wildlife in furtherance of official state duties” while in flight.

Testimony on the bill was sharply divided. Generally, hunters were opposed or sought to amend the bill by requiring the state to consult with them before scheduling aerial hunting or that aerial hunts be limited to “remote and inaccessible areas where access to wildlife may pose [a] hazard to human life.” When the bill was next heard, in the 2016 session, testimony in support came from a broad sector of the public, including landowners who, in cooperation with the state, had been working to remove feral ungulates from remote areas of their holdings.

Jordan Jokiel of Haleakala Ranch, for example, testified that unmanaged and/or uncontrolled introduced wildlife “are a major threat to the health of Hawai`i’s native forests, watersheds, unique and endangered species, and economy. On portions of Haleakala Ranch, feral cattle destroy fences, mingle with domestic livestock, and oftentimes create out-migration of commercial cattle stock. In addition, wild cattle pose a very serious safety issue to ranch staff and others in the field. Feral pigs, goats, and Axis deer pose similar problems and also contribute significantly to increased erosion, sedimentation, and direct damage to pasture forage and other crops.”

Jokiel praised the DLNR for its efforts to control animals in the Nakula Natural Area Reserve and the Kahikinui Forest Reserve, areas that adjoin the ranch’s grazing areas. “Without this tool the ranch would likely still be faced with many of the ongoing operational challenges mentioned above,” he wrote.

Despite the significant opposition from dozens of hunting groups, individual hunters, and some unlikely allies, including the Humane Society of the United States, the measure made it into law.

Then came the give: House Bill 1041 (Act 210) responds to demands from hunting groups that there be a statewide Game Management Advisory Commission within the DLNR. It establishes an eight-member commission – plus the chair of the Board of Land and Natural Resources. All eight appointed members must be licensed hunters. Also, it provides $40,000 to support the commission in its first year – although the DLNR estimated that the level of support called for in the bill itself would come to $100,000 or more.

According to testimony from BLNR chair Suzanne Case, since the bill was first introduced in 2015, the DLNR had worked with “representatives from the County of Hawai`i’s Hawaii Game Management Advisory Commission and other interested hunters to come to agreements on amendments to enhance the effectiveness of this bill.”

While the DLNR may have ironed out some of the issues with the hunting groups, whose members supported the bill with testimony from more than a hundred of their members and allies, the lone conservation group to submit testimony on the measure was opposed to it. Marjorie Ziegler, testifying on behalf of the Conservation Council for Hawai`i, called the bill unnecessary, noting that “hunters may already advise the BLNR on hunting matters, and they do.”

“Hunters will always feel like they are losing hunting areas, even when they have more than enough land and animals to hunt. The number of acres of hunting area far exceeds the number of acres of actively managed and protected watersheds and native species habitats. Furthermore, there is no shortage of feral pigs, goats, sheep, mouflon, and deer in Hawai`i; there are too many of them.

“Do not waste time and money on a one-sided commission that will not address the inherent conflicts between introduced continental barnyard animals gone wild and wildlife (deer), and native Hawaiian species and habitats.”

The legislation states that the new commission shall, among other things:

  • Advise the Land Board on “any matter affecting hunting;”
  • Assist in evaluating and developing game management plans;
  • “Advise on studies of areas for sustainable yield game production or enhancement;”
  • “In carrying out its duties, consult the most comprehensive up-to-date compilation of scientific data;” and
  • “Assist the department on policies, plans, and procedures related to the control of game mammals, including aerial shooting activities by the department and its contractors.”


* * *

A Boost for Inspections

Of Agricultural Invasives

House Bill 1050 (Act 243) is intended to curtail the inter-island transport of invasive species, particularly those affecting agricultural and export crops. As signed into law by Governor David Ige, the legislation requires the state Department of Agriculture to include in its annual biosecurity report to the Legislature all expenditures related to activities called for in the new law as well as a list of activity-related travel; workforce allocation; and measures of effectiveness. In addition, there is to be a summary of inspections conducted for both inter-island shipments and exported agricultural products. If any activity is not completed, the DOA is to explain why.

The activities the new law imposes on the state Department of Transportation (DOT) include:

  • Development of an interisland and export database that can track agricultural products (the DOA says it already has this);
  • Increasing the priority of inspection of inter-island shipments while not “impacting or jeopardizing the inspection of imported agricultural commodities from out of state;”
  • Developing quarantine treatments for high-risk commodities moving between islands; and
  • Coordinating with the DOT in planning for inspection and quarantine treatment capabilities near ports of entry.

The act gives the DOA $100,000 for carrying out all those tasks. It also provides $800,000 to the department to “increase detection, response, and control programs to address agricultural pests statewide” and $1 million to begin planning, site selection, and preliminary design for two facilities on the Big Island where food and non-food agricultural products can be treated before being exported either within the state or abroad.

Finally, the act appropriates $100,000 for the legislative auditor to conduct a financial and performance audit of the DOA’s plant quarantine branch. That audit is to be completed before the start of the 2017 legislative session.

Although the findings section of the act suggests that the island invasive species committees and the Hawai`i Invasive Species Council (HISC) limit their control efforts to conservation lands and residential areas, Big Island Invasive Species Committee manager Springer Kaye suggested in testimony that that simply will not happen.

“Early detection and rapid response is not site-specific, rather, it is species-specific. We go wherever the pest is, whether it is on residential, conservation, or agricultural lands,” she wrote.

In addition to the funds appropriated in HB 1050, the plant quarantine branch received $5,547,050 in general funds called out in the state budget (HB1700). That’s a slight decrease from the $5,659,086 it received in the previous fiscal year and is more than $200,000 short of what the governor had requested ($5,789,598). What’s more, the number of authorized positions was reduced by five – to 79 from 84.


* * *

$300,000 Appropriated

For Rapid `Ohi`a Death Research

Ceratocystis fimbriata, the fungus that causes rapid `ohi`a death, is certainly an invasive species of pathogen on the Big Island, and the plant quarantine branch of the DOA has the primary responsibility to ensure it doesn’t spread to other islands. Yet the increase in funding for this branch is focused entirely on agricultural pests.

`Ohi`a makes up half the woody biomass of all forests in Hawai`i, including its most significant watersheds. Yet funds for research into the causes and potential cure for rapid `ohi`a death received less than half of that given to the new Water Security Advisory Group, with House Bill 2675 (Act 102) appropriating just $300,000 for this purpose.

As introduced, the bill called for spending $325,000 on this effort. That amount doesn’t begin to approach what is needed. As Christy Martin of the Coordinating Group on Alien Pest Species (CGAPS), informed the House Committee on Water and Land, “The current estimated need to support the priority positions and work is $1M/year. For calendar year 2016, we have $750,000 secured: 40 percent private, 40 percent state, 20 percent federal. However, the majority of these funds will be depleted by the end of 2016.”

Marjorie Ziegler of the Conservation Council for Hawai`i also urged a larger appropriation, more in line with the enormous risk that rapid `ohi`a death poses for watersheds and native habitat.

When the Senate Committee on Water, Land, and Agriculture passed the bill out, it increased the appropriation to $600,000. This amount, said Land Board chair Suzanne Case in testimony to the Senate Committee on Ways and Means, “would fund approximately 50 percent of the budget for ROD-related activities … for fiscal year 2016-2017. This appropriation would be used to leverage federal and private funds to make up the other 50 percent.”

The Ways and Means Committee was unswayed, reporting the bill out with an unspecified appropriation. When the bill finally emerged from conference committee, the appropriation was even less than what the bill originally proposed.


* * *

A Ban on Sales

Of Ivory, Rhino Horns

The environmental measure that drew some of the most impassioned testimony had little to do with Hawai`i’s environment, but much to do with Hawai`i’s role in the global trade of endangered species – particularly elephant ivory.

Senate Bill 2647 (Act 125) generally bans the sale in Hawai`i of any part or product made from elephants, rhinos, tigers, great apes, lions, hippos, cheetahs, jaguars, leopards, and pangolins. It also prohibits the sale of parts or products made from a host of endangered and threatened marine species, unless the sale is specifically authorized under the federal Marine Mammal Protection Act. Also banned is the sale of any product or part made from fossils of the wooly mammoth.

There are certain exceptions. For example, if the seller has documentation showing the otherwise banned product is an antique at least 100 years old, or if the ivory or another banned product is a decorative element in an antique musical instrument, the sale of the animal product is allowed. There is also an exemption for “traditional cultural practices” called out in Article XII, Section 7 of the state Constitution.

Although the measure took effect when Gov. Ige signed it on June 23, there is to be no enforcement until June 30, 2017.

Many of those testifying in favor of the ban mentioned a 2008 study that showed Hawai`i to be the third-largest market for illegal ivory in the United States, second only to New York and California.

Those few who opposed the measure cited the hardship it would impose on legitimate dealers in legal scrimshaw. Also submitting testimony in opposition was the National Rifle Association, the Hawai`i Rifle Association, and the Elephant Protection Association.


* * *

Advisory Committee

On Red Hill Tanks

House Bill 2646 (Act 244) establishes a permanent Red Hill Advisory Committee, which is tasked with reviewing issues related to underground storage tank (UST) leaks not only at Red Hill, where fuel leaking from the enormous underground tanks dating back to World War II has the potential to enter O`ahu’s most important source of potable water, but also at other military facilities, including Kuahua Peninsula (Pearl Harbor), Pacific Missile Range Facility (Kaua`i), Hickam, and Schofield Barracks.

The legislation calls for 14 ex officio members. Eleven are made up by the heads of the state Departments of Health and Land and Natural Resources; the director of the Water Commission; and representatives from each member of Congress, the president of the state Senate and the speaker of the state House of Representatives, and the Environmental Protection Agency; the head of the Honolulu Board of Water Supply. In addition, the Army, Navy, and Air Force are invited to send representatives of their branches of service. Finally, the governor is to appoint two members of the community at large.

The Department of Health is given administrative authority over the committee, and the director of the DOH is named as its chair. However, no funds are appropriated for the committee’s work.


* * *

Shoreline UST Ban Tied

To Rising Seas

“The Legislature finds that climate change is real and that sea level rise poses a threat to our quality of life.” That language, in the preamble to House Bill 2626 (Act 179), points to the sharp difference between legislators in Hawai`i and those in numerous other states where legislative majorities refuse to acknowledge climate change, much less deal with it.

Still, anyone thinking that the strong words were setting the stage for robust action would have been mistaken.

The measure notes that the “inundation of underground fuel storage tanks poses risks to our aquifers, coastal water quality, and marine ecosystems.” To address this, it calls for a prohibition on the Department of Health issuing permits for new underground fuel storage tanks within 100 yards of the shoreline – but it won’t take effect until nearly three decades from now.

While the bill as drafted called for a complete ban on the operation of any nearshore UST and renewal of any permit for a nearshore UST by 2030, that date was pushed back to January 1, 2045, in the final measure. Between now and then, the DOH will still be able to issue permits for the repair or replacement of existing USTs near the shoreline.

The 15-year pushback of the deadline was in response to testimony from representatives of the petroleum industry. James Haynes, president of Hawai`i Petroleum, Inc. (owner of Ohana Fuels stations on Maui and Hawai`i) claimed the measure amounted to an “unconstitutional regulatory taking which impairs the value of property without payment of just compensation.” Furthermore, he warned that the 2030 deadline “will effectively wipe out almost all existing gasoline stations along the coastline of all the major islands.”

Lance Tanaka, representing Par Hawai`i, a subsidiary of Par Pacific Holdings, Inc., of Texas, and Richard Parry, president of the Hawai`i Petroleum Marketers Association, also argued the bill represented an unconstitutional taking.


* * *

And Worth Mentioning…

House Bill 2501 (Act 126) allows for holdovers of water leases for three years. This law was pretty much designed to benefit A&B, whose use of water from East Maui streams has been challenged for years. Environment Hawai`i reported on this bill in our August 2016 edition. (See “Recent Court Rulings May Complicate State’s Ability to Grant A&B a Holdover.”)

House Bill 2036 (Act 216) extends the 180-day decision deadline for a Conservation District Use Permit application whenever an environmental impact statement is required or a contested case hearing is held. The length of the extension depends on the time it takes for the contested case or EIS process to be completed, which can be and has been years in some instances.

Here’s what the new law says: “When an environmental impact statement is required … or when a contested case hearing is requested … the one hundred eighty days shall be extended an additional ninety days beyond the time necessary to complete the requirements of chapter 343” – the EIS statute – “or chapter 91” – the contested case statute.

In other words, the deadline is automatically extended by the length of time it takes to complete the EIS or contested case, plus ninety days beyond that.

— Patricia Tummons

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