Proposed Conservation District Rules Praised, Panned by Public

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Before the state established rules to restrict uses within the state’s Conservation District, which covers about half of the land in Hawai`i or approximately two million acres, projects like O`ahu’s Kapa`a Quarry, golf courses, Sea Life Park, and Hawai`i Loa College were built without needing to obtain a permit from the Board of Land and Natural Resources.

Rules adopted in the 1970s established subzones within the Conservation District, as well as a permitting process to regulate uses within those zones. Revisions in 1994 identified what kinds of uses are allowed in each subzone, established standards for those uses, and included approval criteria, such as compatibility with the environment.

The regulatory framework is about to change again, soon. After years of dealing with controversies over things like illegal vacation rentals, shoreline hardening and the exercise of traditional and customary practices, this past summer, the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands devised a new set of rules to fix some of its problem areas and better deal with future projects.

“We’re like a big county,” OCCL administrator Sam Lemmo said at a recent public hearing. “We have a huge area of responsibility … [but] we have a small staff [of about six people].”

In July and August, the OCCL held informational and public hearings on the proposed revisions, and the response has been decidedly, but understandably, mixed. They propose new uses (telecommunication towers, wilderness camps and renewable power projects) and new standards for shoreline setbacks, single family residences, and non-conforming structures, but they make it easier to remove invasive plants and trees that are dead, dying, diseased or pose a safety threat.

Lemmo says the public hearings on the outer islands have been difficult. The O`ahu meeting, however, held August 12, was relatively subdued, with most of the audience choosing to submit written comments later or simply sit and listen.

In response to concerns that have been expressed about energy projects in the Conservation District receiving preferential treatment, Lemmo said, “It’s identified as a use. You can apply for it. It doesn’t mean it’s gonna happen.” Still, he continued, the use was added in support of the state’s goal of meeting 70 percent of its energy demand with clean energy by 2030 and reducing its greenhouse gas emissions to 1990 levels by 2020.

Public testimony touched on a variety of issues, with only one testifier arguing that no new uses be allowed in the Conservation District.

With regard to the proposed rule change that would give property owners two years to apply for a permit to replace or reconstruct a demolished or destroyed structure, Tantalus resident Jim Case argued that was too short a time for someone who may have just lost their home due to a disaster.

Mark Fox, director of external affairs for The Nature Conservancy of Hawai`i, wanted to make sure that invasive algae was considered an invasive plant under the rules. He also sought some clarification about when a permit would be required for invasive plant removal.

Under the proposed rules, removal of invasive plants and trees for maintenance purposes would merely require written concurrence from the DLNR (although the department and the Land Board would reserve the right to require a site plan and/or departmental/board approval if the action might impact natural or cultural resources). However, watershed or conservation projects, which might include the removal of invasive plants, would require a Conservation District Use Permit from the Land Board.

“When is the line crossed?” Fox asked – that is, when does a project go from a category A use (requiring written concurrence) to a D use (requiring a board permit) when removing invasive plants.

Clifford Mirikitani expressed concerns with the OCCL’s proposal to require structures on coastal properties to be set back 40 feet plus 70 times the average annual erosion rate (70 being the average life of a structure). He said incorporating an erosion rate in the setback could unfairly penalize a property owner whose erosion rate is being accelerated by adjacent or nearby shoreline structures.

Former deputy attorney general Yvonne Izu thanked the OCCL “for getting it this far.” She said she worked with the office on some of the rule revisions nearly a decade ago. Marjorie Ziegler of the Conservation Council for Hawai`i also supported the proposed rules, in general. She said she particularly liked the rules making it easier to control invasive plants.

KAHEA’s Marti Townsend, on the other hand, accused the OCCL of rushing the rule revisions and urged it to “step back” and try to collaborate with interested parties on a new rule package.

Public hearings on the rules concluded last month. The deadline to submit comments to the OCCL is September 7. The DLNR plans to submit the revised rules to the Land Board for approval before the end of the year. The proposed rule amendments may be found at


Teresa Dawson


Volume 21, Number 3 — September 2010