To help with the preparation of new Conservation District rules, the Department of Land and Natural Resources in June of 1993 hired Gail Atwater as a consultant. No request for proposals or bid solicitation was issued. Rather, the DLNR asked the Department of Accounting and General Services for an exemption from bidding on the work Atwater was to undertake.
The initial contract, executed in June 1993, called for payment of $18,000 for work that was to have been done between June and mid-October 1993. A supplement to the contract was made April 15, 1994, increasing Atwater’s payment to $28,000. On June 30, 1994, a second supplement was signed, providing for payment of up to $60,750.
In justifying the bid exemption request, Deputy Director Dona Hanaike cited Atwater’s involvement in “previous studies related to an overview of the rules and regulations” governing the Conservation District. In an unauthored attachment to the exemption request, Atwater is said to have participated in a joint DLNR-University of Hawai`i project and to have produced “a very well prepared report entitled ‘Conservation District Workshops – Summary of Results.'” The justification also mentions two unpublished reports, “Review of Regulations of Conservation Lands in Hawai`i and Oregon” and “Procedural and Structural Recommendations for Regulation of Hawai`i’s Conservation District.” These reports, the justification states, “document a thorough understanding of the complexities of improving administration of the state Conservation District.”
The hiring of Atwater, Hanaike states, “would complete our departmental effort to propose a legislative package to revise rules and improve management of activities within the state Conservation District. Proposed legislation would be submitted to the governor for approval in the fall of 1993.”
One of the duties listed in Atwater’s contract is to prepare a set of “guiding principles” to be used in the development of proposed changes to the Conservation District regulatory process. According to the contract, “Sample questions to be addressed by the guiding principles are, ‘What does Department want to regulate?’ ‘What is land use?'”
Activities Without Limit?
In August 1994, the Board of Land and Natural Resources was presented with a set of draft Conservation District rules that, with presumably minor changes, have now been sent to the governor for review. Public hearings will be held later this month.
The draft of the rules available for board review would indicate that Atwater took to heart the matter of determining what the department wanted to regulate and tailoring the draft rules to the department’s liking. For example, the August draft provided for no regulatory oversight whatsoever of activities in the Conservation District that do not involve some type of landscape alteration. Thus, some of the thorniest and most troublesome areas of regulation — including the regulation of the Zodiac boaters on the North Shore of Kaua`i — are removed in the stroke of a pen.
In defense of the elimination of all regulatory oversight of activities, Hanaike as late as August claimed that the changes made to the Conservation District law by the 1994 Legislature did away with the Land Board’s jurisdiction over activities other than “land uses,” that is, activities involving a change in topographical features, construction of a building, and the like.
The bill passed by the Legislature — Act 270 — does not go as far as Hanaike was claiming. Among the “powers and duties of the board and department” enumerated in the act is the duty to “establish categories of uses or activities on conservation lands.”
By late August, Hanaike informed the Land Board that she had now come to believe that activities could be regulated. However, the draft rules presented to the board at that time provided for no regulation of activity not involving alteration of the landscape. “The present statute allows us to establish categories of activities in Conservation District lands,” Hanaike said. “We’re thinking of adding another section to this to deal with non-structural activities…. We just didn’t get it drafted up.”
Bean-Counting Comes To the Conservation District
Whatever the final rules say with regard to activities, the philosophical approach taken by Atwater to regulation could not be further than that reflected in the current rules. The current rules contain a very narrow list of permitted activities that are to be allowed in each of the four large subzones of the Conservation District (Protective, Limited, Resource, and General, in descending order of the degree of protection afforded to the resources in each subzone). But lest anyone believe that present regulations are unduly restrictive, there is the overriding “conditional use permit.” Although this was never provided for in the governing legislation, it was devised in the regulatory framework adopted in 1978 and its legality was never effectively challenged. (The closest that the courts came to addressing this matter occurred in consideration of the lawsuit against construction of H-3, the “interstate” highway cutting through O`ahu’s Ko`olau range. The matter went all the way to the Supreme Court, which affirmed the Land Board’s ability to allow the highway in the Conservation District. The narrower issue relating to validity of the “conditional use permit” was not considered.)
The proposed draft rules take an approach diametrically opposed to the anything-goes abandon of the conditional use permit. Instead, we are treated to a catalog of hundreds of “identified land uses,” covering everything from weeding to waterworks (but, as of late August, not “activities”). Each entry is assigned a rank in the decision-making hierarchy. Board approval is limited to major undertakings. Department-level approval (probably through the staff of the Office of Conservation and Environmental Affairs) is required for identified land uses that are not quite as intrusive. For the next level down, applicants need submit only a site plan for approval at the staff level. Finally, there is a category of identified uses that require no permit whatsoever.
The assumption that lies behind this approach is that the rule’s drafters have exhausted the list of possible land uses that anyone might wish to see be permitted in the Conservation District. Should a land use be proposed that is not identified or subsumable under one or another of the listed uses, the only recourse available under the proposed system would be to seek a rule amendment to add the new use to the bean jar.
The old regime was justifiably criticized for allowing, as conditional uses, anything and everything to occur in the Conservation District, without regard to its appropriateness. The new regime, in failing to set forth any rationale or criteria explaining the inclusion and hierarchical ranking of the “identified land uses,” holds the promise of being just as bewildering as the old one.
One of the major changes proposed in the draft rules is the sanctioning of single-family houses in the Limited subzone. Under a policy approved in 1981, the Land Board agreed that there would be no new houses allowed in the Limited subzone (excluding reconstruction of existing houses, which have non-conforming rights). The draft rules list houses as an “identified land use” in the Limited subzone, provided the houses are in a flood plain or coastal high hazard area and comply with county ordinances implementing the national Flood Insurance Program. Owners of land in the Limited subzone outside the flood plain are, apparently, out of luck.
Hearing Dates Set For New Rules
The DLNR has announced the following schedule for hearings on the new rules:
Molokai
Monday, Oct. 24, 1994, 10 a.m., Mitchell Pauole Center,
Kaunakakai;
Maui
Monday, Oct. 24, 1994, 6:30 p.m., Maui Community College
Community Services Building, Kahului;
Hawai`i
Tuesday, Oct. 25, 1994, 6:30 p.m., Waimea Elementary and
Intermediate School, Kamuela;
Kaua`i
Wednesday, Oct. 26, 1994, 6:30 p.m., State Office
Building, Conference Rooms A, B, and C, Lihue;
O`ahu
Thursday, Oct. 27, 1994, 6 p.m., First Floor Board Room,
Kalanimoku Building, 1151 Punchbowl Street, Honolulu.
Copies of the rules may be obtained at no charge by calling Ed Henry at 587-0377 (O`ahu) or 1-800-468-4644, extension 70377 (all other islands).
Written comments will be received until November 11, 1994. Comments should be addressed to the chairman of the DLNR, P.O. Box 621, Honolulu, HI 96809.
Volume 5 Number 4 (October 1994)
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