The Hawai’i legislature has approved a bill that, if signed by Governor Cayetano (as appears likely), will alter fundamentally the state’s approach to management of endangered species.
The bill’s authors and supporters, including The Nature Conservancy of Hawai’i, say the changes are needed to give private landowners incentives to protect endangered spe cies on their lands. Most of the environmental organizations that followed the bill’s path through the legislature are more ambivalent toward the bill, arguing that the concessions to landowners are far more generous than any off setting gains in species protection.
Under Hawai’i’s existing endangered spe cies law (Chapter 195D, Hawai’i Revised Stat utes), there is no way state authorities can legally allow landowners or developers license to “take” any endangered plant or animal. House Bill 1292, in its final form (Conference Draft I), would establish conditions under which such takings may be authorized.
Passage of the bill has pleased Michael Buck, administrator of the Department of Land and Natural Resources’ Division of Forestry and Wildlife. Buck has long advo cated measures that he claims are needed to give him flexibility in working with landown ers to enhance protections on private land for some of Hawai’i’s rarest plants and animals.
The Nature Conservancy of Hawai’i also supported the changes from the outset. “It is our firm belief that private landowners must participate more fully in endangered species recovery in Hawai’i,” Kim Harris, a staffer with TNCH, wrote last March in a memo urging members of the environmental com munity to support the measure. The bill “provides the flexibility and assurances neces sary to encourage landowners to voluntarily work with DLNR… while providing enough safeguards to ensure that these species are better off overall.”
David Frankel, executive director of the Sierra Club, is more ambivalent. In some respects, the language in the bill is an im provement over the standards for taking es tablished in the federal Endangered Species Act, Frankel told Environment Hawai’i “Under the federal act,” he said, “to allow taking of a species, you must assure that the species stays at status quo – that the popula tion doesn’t decrease and everything is main tained as is.”
The bill approved by the Legislature sets a higher standard, he notes. “Under the Hawai’i bill, you have to have a likelihood that the species will increase before taking is allowed,” he said.
A second “really good thing,” Frankel said, “is that the project itself has to be environ mentally beneficial. That is, it can’t be a shopping mall or a marina.
The two biggest drawbacks of the bill in Frankel’s view are that it has no meaningful provision for either enforcement or accountability. “We are hoping to get these problems fixed next year,” Frankel says.
The reason they were not part of this year’s bill, he says, is that the landowners opposed anything that would have allowed for enforcement. Representative Terry Nui Yoshinaga, chairwoman of the House Com mittee on Energy and Environmental Protec tion, “stood firm with them on that,” Frankel said.
Conservation Plans
The conference committee report covering the final draft states that the bill’s purpose “is to provide private landowners with incen tives to promote the conservation and recov ery of threatened and endangered species and their habitats.” The “findings” section of the bill itself repeats this intention, but goes on to state that any action undertaken pursuant to this bill will not merely sustain populations of endangered species at their present levels, but will result overall in an increase of their populations.
The bill establishes three ways in which private landowners or developers can seek approvals that may result in the taking of an endangered species.
The first of these is through establishment and approval of a habitat conservation plan. These plans, which are allowed also under Section 10(a) of the federal Endangered Spe cies Act, provide for protection of specific areas of habitat in return for which develop ment or destruction of other habitat areas may be undertaken. Under House Bill 1292, Conference Draft I, such plans must be ap proved by a two-thirds majority of the autho rized members of the Board of Land and Natural Resources (in other words, at least four affirmative votes are required for ap proval).
The habitat conservation plans must not only describe the area and the activities to be undertaken, but must also identify steps to minimize and mitigate all negative impacts, including “the impact of any authorized incidental take.” In addition, the source of funds required to implement the mitigating actions must be identified.
The plan must also be “consistent with the goals and objectives of any approved recovery plan for any endangered species or threatened species known or reasonably expected to oc cur” in the area affected; must provide “rea sonable certainty” that the ecosystems, natu ral communities, or habitat types for the endangered or threatened species “will be maintained in the plan area throughout the life of plan;” and must “contain objective, measurable goals,” whose achievement “will contribute significantly to” the species’ sur vival. Finally, the plan is to include “an adaptive management strategy” that can be adjusted periodically “if the plan is not achieving its goals.”
If the Land Board determines, based “upon the best scientific and other reliable data available at the time its determination is made,” that the activities anticipated under the habitat conservation plan will jeopardize any protected species, the board is required to disapprove it. It must also disapprove any plan that it determines is likely to cause any species not now endangered or threatened to become so.
Safe Harbors
The bill’s second “incentive” to encourage private landowners to protect rare species is the provision for “safe harbor agreements.” These agreements cover areas that are not now inhabited by rare species, but which may be occupied by them in the future if their numbers and range expand.
Under safe harbor agreements, incidental takes may be authorized under the following conditions:
First, that the take does not jeopardize the continued existence of any endangered, threatened, proposed, or candidate species;
Second, that it would not reduce the population of such species found on the property subject to the agreement before the agreement was executed;
Third, that “significant” amounts of habi tat are to be created, restored, maintained, or approved under the agreement for at least five years;
Fourth, that adequate funding exists for carrying out terms of the agreement;
Fifth, that the agreement “increases the likelihood that the endangered or threatened species for which a take is authorized will recover.”
Sixth, that the incidental takes are to occur only on the area subject to the plan; and
Seventh, that the cumulative impact of the proposed activity “provides net environmental benefits.”
In conjunction with a habitat conserva tion plan or a safe harbor agreement, House Bill 1292 allows the Land Board to issue a temporary license allowing for incidental tak ing of a protected species, which is the third major element in the bill.
No Surprises
To induce landowners to develop safe harbor and habitat conservation plans, the bill pre vents the state government from imposing any new requirements on them after the plans are approved. If changing circumstances dic tate amendments to existing plans, they can only be imposed by the Department of Land and Natural Resources if certain extenuating circumstances are found to exist. Of course, if the landowner consents to the change, there is no problem. If the landowner does not consent, then the DLNR can still impose the changes under certain circumstances.
First, if the Land Board finds that the requirement won’t entail further costs to the landowner and won’t further restrict the use of land or water by the landowner, such changes may be imposed.
Second, if additional expenses are required to try out amendments to the plan that the DLNR deems essential, than the DLNR must pay the landowner for these costs (with a provision made for binding arbitration to determine the amount of payment).
Third, the DLNR can impose changes if the Land Board has revoked approval of the plan, which revocation is allowed if there is a material breach of the plan or if the funding source is lost.
Finally, the Land Board can order changes to an approved plan if “extraordinary new circumstances or information indicate that failure to modify the plan or agreement is likely” to reduce chances of recovery of any threatened or endangered species in its natu ral habitat. If additional costs are entailed, “the primary obligation” i.e., the cost – “for executing mitigating measures shall rest with the state, or the federal government with its consent, and not with the landowner.”
As a further incentive to landowners, the bill provides that special consideration be given to landowners who want to use state lands for eco-tourism activity. Participating landowners “may receive consideration from the board to use adjacent public lands for commercial nature tourism activities that increase public education and support for endangered species.” An unspecified portion of the fees the landowners charge for this is to be “donated” (the term used in the bill) to a trust fund established by the bill to help carry out the requirements of the new program.
Enforcement
While several aspects of the bill reflect lan guage in the federal Endangered Species Act, in at least one significant respect – that relating to enforcement – the proposed changes in the Hawai’i law diverge from federal provisions. Federal law provides for so-called citizen suits, such as have been used in Hawai’i to seek expanded protection for the palila and the alala, two critically endan gered species of native birds.
H.B. 1292 sets up instead a framework for administrative enforcement of habitat con servation plans, safe harbor agreements, and incidental take licenses. Anyone believing that a violation of any agreement has oc curred has the right to petition the chairper son of the Land Board, who is then required, within 90 days, to “make a diligent effort to resolve the subject matter of the petition.”
If that effort fails, then the chairperson is to appoint a hearings officer who is to com mence a contested-case hearing on the peti tion. Within 30 days of the completion of that hearing, the officer is to grant the petition, in whole or in part, or deny it. The hearing officer’s powers are limited to ordering a party found to be in violation of an approved plan to take specific action. No fine or other penalty is authorized.
A person may also petition to have the chairperson appoint a hearings officer imme diately, if the petition is accompanied by an affidavit supporting claims that “the contin ued existence of an endangered or threatened species will be jeopardized unless the viola tion is immediately enjoined” and showing that the landowner has been informed of the alleged violation.
Again, the hearing officer’s powers are limited to temporary injunctive relief.
This provision came under fire from Linda Paul, president of the Hawai’i Audubon So ciety. In a memo April 28 to the lead members of the conference committee, Senator An drew Levin and Representative Yoshinaga, Paul wrote, “It is just not possible to compro mise on the need for real injunctive relief and the use of courts to get it. Only the court system is set up to act quickly with established legal standards to accomplish what must be accomplished: preserve the status quo until there can be a hearing on the complaint, whatever the form of that hearing may take. In addition, without an attorney’s fees provi sion, the guy with the deep pocket will always win and our native species and their habitat will always lose.”
Frankel also objected to the enforcement provision, noting in an April 28 memo to Levin that even the chairperson of the Land Board “does not have the right to seek injunc tive relief in court against someone violating the law.” The failure to include language providing such relief, Frankel wrote, “alone is sufficient to recommit” the bill (i.e., return it to committee rather than pass it to the cham bers for a floor vote).
“Related to this issue,” Frankel continued, “the administrative enforcement section be comes useless if the temporary injunctive relief offered by the hearings officer has no legal weight behind it… What are the sanc tions for violating the [hearing officer’s] or der?”
Corrective Measures
As suggested above, the bill does make provi sion for revocation of a habitat conservation plan or safe harbor agreement. However, it is not enough merely that an approved plan or agreement be breached. Two other circum stances must accompany the breach. First, the landowner must fail to correct it “in a timely manner” (not further defined). Sec ond, the effect of the breach “is to diminish the likelihood that the agreement will achieve its goals within the time frame or in the manner set forth” in the plan or agreement.
David Frankel of the Sierra Club said environmental groups had tried to take out language limiting the breaches only to those that affect rare species. He gave an example of how conditions of plans or agreements might be significant, yet not have a demonstrable effect on a rare species.
“Suppose your plan allows you to do logging under certain conditions, one of which requires you to provide a 50-foot buffer from a stream to protect aquatic species and prevent sedimentation. Let’s say you violate that provision. If the state can’t prove that a rare aquatic species has been harmed, the state can’t prosecute.”
In his memo April 28 to Levin, Frankel wrote: “It is important that the HCP and the safe harbor agreement specifically state that a violation of the plan or agreement is a viola tion of state law. Such a statement would provide constructive notice to the applicant to allow for federal and citizen enforcement.”
The Audubon Society’s Paul was also highly critical of the provisions relating to breaches. In her April 28 memo, she wrote: “I find it interesting that landowners are al lowed to breach the terms of a plan with impunity as long as the effect will not ‘dimin ish the likelihood that the plan will achieve its goals.’ Who is to make this determination? Is this a contract or isn’t it? Why isn’t the violation of an HCP a violation of state law?”
Another aspect of the law that has upset environmentalists, including the Sierra Club, relates to the “incentives” provision that lim its the new conditions that may be placed upon landowners.
As Frankel notes, habitat conservation plans are required to spell out an “adaptive management strategy” that allows for re sponse to new conditions as they may arise. This, however, seems to run up against the assurances found elsewhere in the bill that limit the state’s ability to impose new condi tions as a result of changing circumstances. “I thought it was clear that the habitat conserva tion plans have to have an adaptive manage ment strategy,” Frankel told Environment Hawai`i. “On the other hand, the incentives section of the bill says you can’t impose new requirements.”
Paul, president of the Hawai’i Audubon Society, described the incentives section as “very bad.”
In the same April 28 memo cited above, Paul provided a concrete illustration of her concerns that arose just days earlier, “when an Audubon member discovered that the terms of a dredge-and-fill/mitigation permit be tween a landowner and the Army Corps of Engineers to maintain habitat for endan gered stilts in Ka’elepulu Pond (Enchanted Leke, Kailua, O’ahu) was actually destroying the nesting habitat of endangered coots and moorhens in the middle of nesting season. When DOFAW was contacted, they claimed that there was nothing they could do because the permit had the effect of a contract. When U.S. Fish & Wildlife Service was contacted they said the same thing. In addition, the FWS biologist in charge of wetlands said she hadn’t even looked at the site in over two years. In the two days it took to get FWS to send someone out and convince the landowner to stop, more than one third of the habitat was destroyed. The Army Corps and the FWS are now in the process of trying to get the terms of the permit changed.”
Public Involvement
For both the habitat conservation plans and the safe harbor agreements, notice is to be provided in the bulletin published by the Office of Environmental Quality Control at least 60 days before the plan is approved by vote of the Land Board. In addition, hearings on the proposals must be conducted on the islands affected in advance of a board vote.
Until such time as the OEQC publishes notice of a plan, however, “all information submitted to the board by a landowner… in the course of preparing a habitat conservation plan or safe harbor agreement … shall be kept confidential.”
The failure of the bill to provide for early engagement of the public was faulted by both Paul and Frankel. “The public is no longer invited to provide important information in the preparation of a habitat conservation plan,” Frankel wrote to Levin. “Your draft [an earlier Senate draft of the bill] provided that the public was informed after the appli cation had been submitted – and before the plan itself was completed. The Conference Draft 1 only allows for the public to be informed after the plan has been com pleted. This change is exacerbated by the fact that the language suggests that the board will definitely enter into the agree ment – no matter what the public says: After a habitat conservation plan is pre pared, the board shall notify the public of its intent to enter into the habitat conservation plan. Public comments at that date will in all likelihood be ignored. The de partment and the landowner will be so wedded to their positions that all public comments after the plan has been completed become meaningless. The public should be invited to solicit information that may be relevant when an application is submitted.”
Paul noted that the provision which allows for comment only after the plan is prepared “and after the Board has indicated its intent to enter into it promotes confrontation and delay. This is the current process that governs EIS review and it works very badly. In those few instances where the public was involved much earlier in the process, it has worked far better.”
Volume 7, Number 12 June 1997
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