The 2009 Legislature closed up shop in May, but suspense lingers over what it has or will have accomplished. The deadline for the governor’s veto is July 15, although she was to have submitted to the Legislature a list of bills she intends to veto by the end of June.
Regardless of the final outcome, the list of measures passed by the Legislature that have a substantial impact on the state’s land, water, and other natural resources is a long one this year. For those that have neither been signed nor vetoed, Governor Linda Lingle must indicate by June 29 those bills she is considering vetoing. July 15 is the final day for action to be taken on bills passed during the regular session. Any bill not signed or vetoed by this day will automatically become law without the governor’s signature. If the Legislature intends to override a governor’s veto, it must do so before noon on this day.
Land
Mauna Kea Authority
One of the most closely followed measures of the 2009 session was House Bill 1174, which would give the University of Hawai`i the ability to manage, through rules, the summit area of Mauna Kea, which the university leases from the state for scientific purposes (i.e., telescopes).
Supporters – university personnel, business organizations, and labor unions, for the most part – were passionate in their belief that the bill was needed to allow for proper management of the area that includes the science reserve, Hale Pohaku (the support facilities for astronomers at the 9,000-foot elevation), and the roadway that connects them. Opponents were equally passionate, expressing fears that the university would make the summit a “gated community” for astronomers and that it would not be sufficiently protective of natural and cultural resources.
As passed by the Legislature, the measure allows the Board of Regents to charge fees for the use of land and university facilities on Mauna Kea; gives it authority to regulate public and commercial activities on lands under the university’s jurisdiction; and sets up a special fund, financed by rents from leases and permits and from fines. With respect to the current administrative rules of the Department of Land and Natural Resources – rules governing commercial tours, among other things – the university is instructed to “strive for consistency” with existing rules relating to forest reserves and natural area reserves.
Energy Crops on State Land
Last December, holders of leases on state lands in Hamakua were shocked to discover that the Board of Land and Natural Resources had taken action – “in principle” – that they feared could result in their leases being terminated and land they occupied being given over to producers of crops intended to be used as fuel. At the same time, a slew of parties that said they would have sought the lease if they had only known the lands were available, and were upset at not having had a chance at them. (For details, see the cover story in the January 2009 edition of Environment Hawai`i.)
In response, Senate Bill 50 was introduced to limit the circumstances under which the Land Board can lease lands to producers of energy crops. It allows the Land Board to lease lands to renewable energy producers only after a public hearing that gives all potential renewable energy producers notice of the opportunity and describes the types of information the board has to consider before awarding such a lease. In addition, current lessees on state lands cannot have their leases terminated involuntarily in order to have the land leased for a biofuel crop.
Resource Management
Conveyance Tax Allocation
The Legislature approved – but the governor did not – changes in the way the state conveyance tax is charged and allocated. House Bill 1741 imposes temporary cuts in the shares of the conveyance tax that support the Rental Housing Trust Fund and the Natural Area Reserve Fund. Starting with the current fiscal year (which began July 1), the Rental Housing Trust Fund will receive 25 percent of revenues (instead of 30), while the NAR Fund portion will drop to 20 percent (from 25). The cuts are set to expire June 30, 2012.
An early version of the bill would have suspended payments into the Land Conservation Fund, which receives 10 percent of the total conveyance tax revenues, and would have imposed far more drastic cuts to the rental housing and natural area funds. Testimony in opposition was strong, however, both from conservation groups and from groups representing low-income renters.
The final bill provides for cuts that are less Draconian and for a shorter period than the original measure. In addition, it contains steep increases in the conveyance tax paid on transfers of more expensive residential property, with the most expensive rate — $1.25 per $100 – reserved for sales of second homes costing $10 million or more. The rate on properties selling for less than $600,000 was unchanged.
Still, the tax increase was the reason given by Governor Lingle for vetoing the measure. “This bill is objectionable because it would discourage investments, adversely impact land transactions to promote business and housing development, and further slow our economic recovery by extracting money out of the pockets of families and businesses,” she wrote in her veto message.
The governor’s veto was overridden, and the measure is now Act 59 of the 2009 Legislature.
Manta Rays, `Opihi
Two bills – HB 366 and SB 1 – impose limits on the take of two aquatic species. The first bans the capture of manta rays in state waters (unless authorized by a DLNR permit). The second bans the take of `opihi, the popular delicacy, on O`ahu, while establishing closed seasons for `opihi harvesting on other islands. Nearly all the testimony offered on the ban was supportive. The DLNR, however, opposed the bill, reminding the Legislature that in 2002, it handed over to the department authority to develop rules for fisheries management, which up to that point had been largely regulated by statute. At that time, DLNR administrator Laura Thielen stated in her testimony on SB 1, “the Department argued in favor, and the Legislature agreed, that the creation of regulations for such matters as minimum sizes, seasons, bag limits, etc., were better handled through the administrative rule process.” Thielen’s request that the DLNR be allowed to “continue its efforts to promulgate these proposals through administrative rules” fell on deaf ears.
Thielen expressed much the same concerns in her testimony on the manta ray bill, saying her department appreciated the sentiments, but “believes it to be duplicative of efforts already underway via the administrative rule process.” She noted that a proposed rule to protect manta rays, sharks and certain other marine species had already been discussed and endorsed by the West Hawai`i Fisheries Council. As with the `opihi bill, however, Thielen’s concerns carried little weight with the Legislature.
Aside from the DLNR’s concerns, the bill faced no opposition whatsoever. One testifier noted that in 2006, House Resolution 30 urged the DLNR to take action to protect manta rays within one year. Since then, he wrote, there has been no progress. The director of the Kona-based Manta Pacific Research Foundation, Jan McLaughlin, told legislators that a 2002 survey of Kona dive and snorkel tour operators found that the lure of seeing manta rays swim brought the operators $2.5 million a year in revenue, with a more recent survey suggesting the value could be 20 percent higher.
Air Pollution
It seemed like a motherhood-and-apple-pie measure: eliminate a 4,000-ton-a-year cap on fees companies have to pay for each ton of pollutant they spew into the atmosphere. The fees collected from holders of air-pollution permits are used to pay costs associated with enforcing the state’s clean-air regulations, including salaries of employees of the Department of Health’s Clean Air Branch. Who could possibly be opposed to a measure that would end an inequity in current law and, at the same time, bring in more revenue to a cash-strapped state?
The state, that’s who. Chiyome Fukino, director of the state Department of Health, testified that “this measure has merit, however, given the current economy, it would not be prudent to pursue enactment at this time.” Fukino said that passage of the bill would raise about $230,000 in additional fees, nearly all of which would come from operation of the Hawaiian Electric Company’s Kahe plant, on the Wai`anae coast. Supporting testimony came from the Sierra Club and the Blue Planet Foundation, both of which noted that the existing law “provides an incentive for large polluters” to continue polluting.
Governor Lingle allowed the measure to become law (Act 42) without her signature. Increased fees “will almost certainly be passed on to the consumer through higher electric utility rates,” she wrote in her statement of concern. “This bill attempts to address renewable energy goals through punitive measures that adversely impact our residents… In these difficult economic times, we cannot continue to operate government programs and services by burdening consumers with higher taxes and fees.”
Renewable Energy,
Climate Change,
Sustainability
Self Sufficiency
House Bill 1271 sets up a task force to recommend ways in which Hawai`i can meet its own energy and food needs. That’s a bit of a yawn. But the bill gets interesting when it proposes an increase – to $1.05 from a nickel – in the tax on each barrel of petroleum product sold to retailers or other end users. Of that, 5 cents is to go to the Environmental Response Revolving Fund (which responds to oil spills); 55 cents is to go to the Energy Security Special Fund; 10 cents is to be deposited into the Energy Systems Development Special Fund; and 35 cents is to go to the Agricultural Development and Food Security Special Fund established by the bill.
Many of those who testified in support of raising the tax pushed for one that would be nearly five times as great — $5 a barrel – describing the proposed $1.05 tax as hopelessly inadequate.
The Lingle administration pulled out all stops in opposing the measure. Among those urging the Legislature to hold it were Linda Smith from the governor’s office and the heads of the departments of Agriculture; Taxation; Budget and Finance; Health; and Business, Economic Development and Tourism.
The agricultural development fund is to be used (subject to legislative appropriation) for grants to farmers; acquisition of agricultural lands or processing facilities; farm improvements; equipment purchases; research; promotion and marketing of agricultural products; and other activities “intended to increase agricultural production or processing that may lead to reduced importation of food, fodder, or feed from outside the state.”
In addition, the bill appropriates $1 million for control of the varroa mite affecting honeybees; $2 million for pest inspection, quarantine, eradication, and other responses to the spread of pest species; $1.2 million to expand the food safety program of the Department of Agriculture; $2.6 million for “livestock revitalization;” $900,000 for improvements to the Lower Hamakua Ditch on the Big Island; $1.1 million for an agricultural water main in upcountry Maui; $1.5 million to build the Kealahou pipeline in upcountry Maui; and $200,000 for the planning phase of the state Agricultural Water Use and Development Plan.
The bill establishes a clean energy program within the Department of Business and Economic Development, funded by roughly $400,000 from the state Energy Security Special Fund. It also sets up a Renewable Energy Branch within the department and appropriates $119,280 to pay for the position of the branch chief.
Finally, the bill continues to support the work of the Greenhouse Gas Emissions Reduction Task Force with an appropriation of $200,000 for the next fiscal year.
The governor had not signed the bill at press time; given the opposition evident during the several legislative hearings on the bill, a veto would seem likely.
Expedited Permits
Last year, the Legislature passed a bill to push along the often sluggish process of obtaining permits for the siting of renewable energy facilities. House Bill 590 tweaks that by inserting new triggers for automatic approval.
Favoring the changes were the Department of Business, Economic Development and Tourism, Castle & Cooke (the moving force behind the 2008 legislation), and the Land Use Research Foundation of Hawai`i, although the second two wanted to see an “and” changed to an “or,” further liberalizing the automatic approval conditions. Opposing testimony came from the Sierra Club.
Global Warming
To deal with the local impacts of global warming, the Legislature passed Senate Bill 266, which establishes a climate change task force, under the administrative umbrella of the Office of Planning. Tasks for the new body include monitoring the effects of global warming on natural resources, residents, the visitor industry, commerce, buildings and infrastructure, health, and native species. It is also to estimate costs of the adverse effects of climate change and rising sea levels and to make recommendations to the legislature to mitigate or address such changes.
The task force is to have 17 members: one each from the state departments of Health, Transportation, Land and Natural Resources, and Defense; one from the Office of Planning; one from each of the four counties; three appointed by the president of the Senate; three appointed by the speaker of the house; one from the Center for Island Climate Adaptation and Policy at the University of Hawai`i at Manoa; and one from the Joint Institute for Marine and Atmospheric Research.
The task force’s mission is large – but it was given only a limited time in which to accomplish its ambitious charge. The legislation establishes a sunset date of June 30, 2011 for the task force.
— Patricia Tummons
Volume 20, Number 1 July 2009
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