Board Talk

Land Board Tightens Conditions on Logging License for Waiakea

The Board of Land and Natural Resources has granted to Tradewinds Forest Products the state’s first timber license in more than a decade, despite requests that an environmental impact statement on the effects of logging be done first.

In approving the license on June 8, the board did, however, require the company to report environmental findings that arise during its permitting process, and it ordered its forestry staff to provide the board with harvesting plans and quarterly reports on operations.

The license allows Tradewinds to log various eucalyptus species, Queensland maple, and Australian red cedar from 8,875 acres in the Waiakea Timber Management Area southwest of Hilo. Before harvesting can begin, the company must build a sawmill and veneer plant, which may take up to three years to be permitted.

Many of the 50 or so people testifying at the board’s meeting in Hilo opposed the project, expressing concerns over traffic impacts, flooding, soil erosion, pesticide use, noise and air pollution and soil degradation. Written testimony criticized the license for failure to give adequate protection to endangered species in the area, particularly the Hawaiian hoary bat. Most opponents asked that the state undertake a full environmental impact statement to address all impacts of the development of a forestry industry on the Big Island.

But according to Gordon Boyd of Tradewinds, the information his company will be required to provide to county, state, and federal agencies to obtain noise, road use, clean air, and water permits for the sawmill, veneer plant, and co-generation facility should sufficiently answer many of the environmental issues covered in an EIS. Requests for an EIS, he said, were simply a stalling tactic on the part of opponents.

But opponents of the license were not the only ones who faulted the state’s environmental assessment. Land Board member Tim Johns said the environmental assessment did not answer all of his questions regarding cumulative impacts of logging on the environment. In lieu of requiring a full EIS, Johns added a condition to the license requiring a report to the board on the full range of impacts disclosed during the permitting process for Tradewinds’ manufacturing facilities. He also requested that the license incorporate a reference to a community liaison and a condition to work with a community advisory board.

At the request of Land Board member Kathryn Whang Inouye, Tradewinds must also provide the board with harvesting plans and quarterly updates on operations so that the board can monitor the company’s adherence to the Waiakea Timber Management Plan. The board-added conditions were in addition to two amendments proposed by Division of Forestry and Wildlife administrator Mike Buck. One of Buck’s amendments was to include in the language of the license specific reference to the Waiakea Forest Management Plan and the environmental assessment, so that these would become governing documents for logging activites, as the Land Board intended when it approved them. The second increased liability insurance requirements.

When board member Inouye asked how logging would affect the forest understory, Buck assured her that the understory would survive clear-cutting – a statement that left many in the audience puzzled. In response to her questions about erosion and drainage control, Don Bryan of Tradewinds said that erosion and proper drainage are not problems because the area is flat and its highly permeable soils soak up the rain immediately.

Bat Impact

Prompted by written testimony from bat expert Theresa Menard, board members questioned Buck about impacts of logging on the endangered bat. Buck gave the board assurances that logging would be stopped during the bat breeding season if surveys found bats in an area scheduled for harvest. “The environmental assessment is real clear,” Buck told the board. “If we find bats in areas that are scheduled for harvest, we aren’t going to harvest during those three months.” In fact, the only mitigation measure for bats called for in the environmental assessment is to establish a “no-harvest zone (250 feet in radius) … around each site” where a roosting bat or active nest is found.

Buck went on to say that his division has formed a committee, which includes Menard and “Bat International” to help design protocols for bat surveys – all to be done at state expense. But according to Menard, DOFAW has shrugged off the advice that she, the U.S. Fish and Wildlife Service, and Bat Conservation International provided on protocol design. Contrary to their recommendations, she says, DOFAW has determined that decisions as to whether or not to harvest should be based on the number of times an hour bats pass through a selected area.

“I have told DOFAW the number of bat passes per hour is an index of foraging [feeding] activity – not roosting activity… I told DOFAW if any bats at all are detected around dusk that is a good indication bats are roosting nearby and harvesting should be halted – especially during June and July,” she says.

“DOFAW does not have the bat situation under control. All they’ve done is purchase a couple of bat detectors and hired two interns to do bat surveys,” Menard says.

Jay Nelson of the Fish and Wildlife Service also noted in a January 2001 review of DOFAW’s bat survey protocol, “In very broad terms, the protocol as written does not provide a strong level of confidence that bats will not be taken during timber harvest especially if harvest is conducted during the months of June and July.”

He suggested that DOFAW should place more weight on detections made one hour before and after sunset and he questioned DOFAW’s assumption that “a roosting bat that is capable of flight will fly to safety when disturbed.”

No Nuisance

Should the forest industry take off statewide and many more thousands of acres of land be planted in trees to feed it, the remedies that could be sought by neighbors inconvenienced by the new land use would be limited under a bill passed by the 2001 Legislature and signed by the governor.

According to the new law, so long as they comply with accepted agricultural and management practices, timber farms cannot be sued for being a nuisance. Therefore, any noises, odors, dust, or fumes from tree farming may not be considered a nuisance – at least in the eyes of the law. Neither can the operation of machinery, ground and aerial seeding or spraying, or the application of chemicals. Under state law, a nuisance is anything that interferes with “reasonable use and enjoyment of land.”

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Holschuh Stops Project To Help Pu`uwa`awa`a

At the request of Big Island Land Board member Fred Holschuh, a project to fence 205 acres in the Waihou forest near Pu`uwa`awa`a to protect endangered species was withdrawn from a list of projects the Division of Forestry and Wildlife was proposing to finance with a one-time federal grant of nearly half a million dollars.

Waihou forest, adjacent to the Pu`uwa`awa`a Forest Bird Sanctuary, supports the endangered Hawaiian hawk and the Blackburn’s sphinx moth, which was “thought to be extinct on the Big Island until discovered in the area feeding on the endangered `aiea tree,” DOFAW’s proposal states.

“While portions are highly degraded, the forest has good potential for natural recovery, providing restored habitat for a multitude of rare Hawaiian species, if protected from cattle and feral ungulates by fencing,” it states. The project would have cost $38,667 ($29,000 in federal funds, $9,667 from the state).

Holschuh is presiding over negotiations between two groups – one of conservationists, the other composed mainly of hunters — vying for control of Pu`uwa`awa`a Ranch. At the June 8 Land Board meeting, where DOFAW sought the board’s approval of receipt of the funds, Holschuh said he felt uncomfortable supporting a DOFAW project in Pu`uwa`awa`a while the group members were “coming in good faith” to work out their own conservation plans.

DOFAW administrator Mike Buck went along with Holschuh’s request. Other projects on the list include nene and taro education projects, fence building and repair, construction of holding pens for captive-reared `alala, a boardwalk to a Saddle Road kipuka, and predator control to protect native and migratory birds.

Karen Blue of the Conservation Council for Hawai`i praised the projects, financed through a “light” version of an environmental bill in Congress that could provide the islands a significant, reliable source of federal dollars for conservation projects. Her organization and its national affiliate, the National Wildlife Federation, have been lobbying Congress for passage of the full Conservation and Reinvestment Act. She urged DOFAW to identify future projects for CARA funds, should the bill pass.

Holschuh said he had received phone calls from hunters opposing some of the projects and asked Buck if the federal money would be jeopardized if some of those projects were deferred.

The sooner the state gets the grants, the better Buck said, and informed Holschuh that the projects were chosen for their ability to help species with the greatest conservation need, not game animals.

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Hamakua Co-op Is Fined For Illegal Grading

Like clockwork, every six months since it received its lease from the state in 1998, the Hamakua-North Hilo Agricultural Cooperative has defaulted on its rent, liability insurance or performance bond requirement. In April, the DLNR’s Land Division delivered its most recent default notice for not having a valid performance bond.

Aggravating the delinquencies, and prompting Land Division staff to propose revocation of the lease, was the bulldozing of a portion of Conservation District land at the top of Hamakua sea cliffs adjoining the farmed areas. The grading was done last year by a co-op member, Timothy Cockle, who, by all accounts, had simply taken it on himself to make the site more attractive to visitors. Debris from the graded area was simply pushed over a cliff and into waters below.

At the June 8 Land Board meeting, Land Division staff recommended that the Land Board assess the maximum fine of $2,000 for the grading violation. If the co-op failed to restore the graded area and provide a performance bond by June 15, 2001, staff recommended that the board cancel the co-op’s general lease.

Walker Sanders, representing the co-op, took pains explaining the difficulties behind the various delinquencies. Most he attributed to the on-again, off-again flow in the Hamakua Ditch.

“The water keeps going off. It’s a tremendous hardship. We have always paid our rent, but late…Hopefully it will be a thing of the past,” Sanders said.

“I hear what you’re saying…” board member McCrory said, “but maybe you can’t afford [the lease]. As business people, you should make plans to not have this occur.”

A staff report noted that several structures on the leased land were illegally being used as living quarters. Sanders admitted that people lived there “for a few weeks or a few months” although they knew they weren’t supposed to.

When Holschuh asked Sanders how he felt about the fine, Sanders replied, “The maximum fine is overkill… The co-operators did not do this. One man did this,” therefore the whole co-op should not be penalized, he said. The co-op had already gotten a break from the Office of Planning, which had withdrawn a fine of $1,000 it had assessed for grading in the state’s coastal Special Management Area.

“Given that the water situation is well known, would you be able to live with a reduction of the fine to half?” Holschuh asked Land Division administrator Harry Yada. Yada responded that it was up to the board to decide the appropriate fine.

With some 300 members in the co-op, a fine of $1,000 would cost each member $3.33, the maximum fine would cost $6.66 each.

McCrory, clearly upset, said that the maximum fine doesn’t even come close to covering the costs of all the default notices that have been issued over the years.

Holschuh was not swayed and made a motion to fine the co-op just $1,000. Usually, the Land Board goes along with motions made by the member representing the island on which the item is from, but Holschuh’s motion received no second. Instead, Inouye moved to accept the staff’s recommendation as is, with a maximum fine of $2,000. That motion was approved.

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Board to Get Seventh Member

A bill signed recently by Governor Ben Cayetano adds one more at-large member to the land board, increasing it to seven members. The law, drafted in response to uncertainties in what constitutes a quorum raised in the notorious HELCO contested case, clarifies also that decisions of the board require only a simple majority of the members present and qualified to vote.

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Contested Case On Renewal Of EMI Water Permits

At the May 25 Land Board meeting, a request for a contested case hearing stopped the board’s annual ritual of renewing permits for the diversion of water from East Maui by Alexander & Baldwin and its subsidiary, East Maui Irrigation Company, Ltd.

However, the companies may continue diverting water while the contested case runs its course. Seventy-four miles of ditches and tunnels, crossing state and private lands, divert billions of gallons of water a year from the East Maui watersheds of Huelo, Honomanu, Nahiku, and Ke`anae. The water diverted is used for sugar in Central Maui, as well as domestic and other agricultural uses upcountry.

Like Waiahole on O`ahu, farmers, Native Hawaiians and environmentalists in East Maui are calling for the return of some of that diverted water to streams to support aquatic life and taro farming. Working opposite that end has been A&B/EMI, which operates the ditch and has been collecting water for the past 15 years with revocable permits issued every year by the state. On May 14, the companies asked the Department of Land and Natural Resources for a long-term water lease. More is required than just the year-to-year permits for growth, they said.

At the May 25 Land Board meeting, A&B vice president Meredith Ching walked into the ILWU’s conference room hoping to leave with a promise from the Land Board that it would sell a 30-year water lease at public auction, despite the fact that the board was only considering the renewal the revocable permits that day.

Increased efficiencies and new equipment and technology have kept sugar alive on Maui, while plantations elsewhere have failed, Ching said.

“However, HC&S is now faced with a need to make a different kind of investment, investments in new strategic but related ventures. Investments by their very nature are large and carry more risk. The basis for these ventures will remain in agriculture and water will remain a basic essential for our business. However, without long-term certainty about reliable and adequate supplies of water, HC&S cannot begin to plan to have a long term future.”

Supporters of A&B/EMI’s efforts to secure a long term water lease included the Maui Chamber of Commerce, the Maui Hotel Association, HC&S’s Federal Credit Union, upcountry water users, the Hawaii Agricultural Research Center (formerly the Hawaii Sugar Planters Association), the Hawaii Farm Bureau, HC&S employees, The Nature Conservancy of Hawai`i, MECO, and Ameron (an A&B tenant).

Despite the support, the request for contested case on behalf of Na Moku Aupuni O Ko`olau Hui, a native Hawaiian non-profit whose members live in Ke`anae and Wailuanui, and native Hawaiians Beatrice Kepani Kekahuna, Marjorie Wallet, and Elizabeth Lapenia kept the board from taking action on the matter. The parties, represented by the Native Hawaiian Legal Corporation, contend the permits violate state law on several counts. First, they claim, the permits should, but do not, comply with Chapter 343, the state’s environmental disclosure law, in that no environmental assessment or impact statement has been done for the diversions. Also, the current diversions are illegal, the contestants say, because the state Commission on Water Resource Management has not issued permits for the out-of-watershed movement of water as required by the state Water Code.

Another testifier, Elaine Wender of Ke`anae, reminded the Land Board that a contested case she has been involved since 1986 has not been resolved and is still pending. Therefore, she said, the board could not proceed with issuing permits or anything else.

Attorney Isaac Hall told the board that at a meeting a year ago, he asked then then-Board chairman Tim Johns to have the Department of Land and Natural Resources prepare an EIS, have the water permits appraised, and identify riparian and appurtenant users. “Nobody worked with us during the year,” Hall said.

His efforts to get EMI or A&B to release any water back into streams have been stonewalled, he said.

Of Chickens and Eggs

In addition to concerns listed by Native Hawaiian Legal Corporation, by all accounts, the DLNR’s procedure for processing water leases still needs tweaking.

Since the Water Code was passed in 1987, litigation and other issues have stopped the DLNR from issuing any long-term water leases to private users. Instead, private users of water from state land operate on one-year revocable permits. But now that much of the litigation has been resolved, then-Land Division administrator Dean Uchida told the board, the DLNR is prepared to resume selling leases at public auction, with a couple of changes: now, the applicants must shoulder the burden of complying with Chapter 343 before the Land Board authorizes sale of the lease at auction. In the past, the state was responsible for preparing the environmental assessment or EIS.

Neither A&B nor those opposed to the stream diversions were thrilled with the DLNR’s new scenario. Although A&B/EMI was willing to do an EIS (a major undertaking that Ching said would take at least a year and would cost half a million to $2 million to complete), the company was unwilling to take on that responsibility before the board even considered auctioning a lease.

The East Maui ditch system is three times the length of Waiahole ditch and takes eighteen full-time employees to maintain. According to Ching, EMI’s spends more than $1.5 million a year to maintain the ditch.

“It will be difficult for us to justify this significant expenditure [of an EIS] if the BLNR has not authorized the issuance of a lease with a sufficiently long term,” she said. “In order for us to do the EIS with that kind of magnitude and investment involved we kind of need to know what the box is. It’s very hard for me to take to management and ask them for $2 million and they say, ‘For what? Is the board going to give you a long-term lease or at least put one up for auction?’ And I have to say, I don’t know. It could be five years, it could be ten years, it could be 30 years. In addition to which, to do the EIS, you kind of have to know what you’re scoping because the impact of a five-year lease or a one-year lease would be different from a 30-year lease in terms of impacts. I guess it’s a chicken and the egg.”

She further requested that all bidders prepare an EIS for their proposed uses, because different uses will have different environmental impacts.

Many of those opposed to the long-term lease thought the DLNR should do the EIS.

NHLC’s Carl Christensen said, “Clearly it is inappropriate to ask the applicants to [do the EIS] when the process contemplates multiple applicants. It presupposes lease term and size. The impacts of a five-year lease are different from a 30-year lease. The board is reluctant to spend the money for an EIS. Is that correct? This should not be a surprise. The lease rental rates are so low, [it] can’t afford planning.”

Christensen also pointed out that the McBryde case, one of the defining precedents on state water law, requires a permit for taking water out of a watershed.

“The current diversion is unlawful under the Water Code,” he said. In addition, he said the staff appraisal was defective and that the board must identify and quantify the rights to be protected by interim stream flow standards.

Instream Flow Standards

A water lease from the Land Board would allow the lessee to use the water, but the Water Code gives authority to set allocations to the state Commission on Water Resource Management. Because of the joint jurisdiction over water, the DLNR plans to insert a condition in the lease that allows a lessee to bail out in case the commission allocates an amount that is “not economically feasible,” Uchida said.

What would affect the amount allocated for diversions would be changes in the instream flow standards. Approval of such changes, however, can be a long, complicated process. Ching urged that it be kept separate from the lease process, but that any lease contain language addressing what happens once the Water Commission establishes new instream flow standards [IFS] for East Maui streams.

Wender, however, suggested Ching’s proposed approach was backward: “We need to know the IFS before knowing whether or not to bid on a lease.”

When or whether the Water Commission will tackle setting IFS for East Maui streams is unknown. At a May 24 informational briefing to the board, Linnel Nishioka, executive director of the Water Commission, said the commission is working to develop baseline data needed to set the Waiahole instream flow standard, a process that will take some time. Meanwhile, Nishioka said, the commission is developing a plan for deciding what streams will come next.

— Teresa Dawson

Volume 12, Number 1 July 2001