Researchers Seek To Extend Life Of ATOC Another Five Years
The controversial Acoustic Thermometry of Ocean Climate (ATOC) project would continue at least until 2005, under a Conservation District Use Permit filed with the state by researchers at the Scripps Institution of Oceanography in La Jolla, California. The project, which was designed to test the feasibility of using acoustic methods to study large-scale temperature variations in the ocean, received its first permit from the Board of Land and Natural Resources in 1996, with the condition that the cable be removed six months after the permit ended.
After difficulties were encountered in installing the equipment and starting the experiment, the original permit received a time extension in 1998, which pushed the deadline for removal forward to April 30, 2000.
In 1999, Scripps applied for a new Conservation District Use Permit that would allow it to keep the cable in place another five years. At the same time, it sought another time extension of the deadline to remove the cable. If Scripps receives the second CDUP it is requesting, then, it will not have to go through the cycle of removing and installing the cable – and the five-ton sound source it powers — anew.
On February 25, the Land Board approved a time extension for removal of the cable under the first permit to September 30, 2001. However, no use of the cable, which provides power to an underwater sound source, is to be allowed, unless the new permit is granted. Approval of that application is months away still and will not take place until the federal process of public review and approval of an environmental impact statement runs its course. A draft EIS is now being prepared and should be ready this spring, says Peter Worcester, the Scripps oceanographer who is ATOC project manager.
Changing Times
The ease with which the permit condition was amended in February stands in sharp contrast to the controversy that surrounded the project when it first came before the Land Board in 1996. At the time, Scripps was seeking an after-the-fact approval to lay the cable, which had actually been put in place with no permit three years earlier.
Opposition was strong and widespread. Opponents, including several marine mammal scientists, argued that the low-frequency sounds generated periodically by the sound source, placed on the ocean floor north of Ha`ena, Kaua`i, would disturb endangered humpback whales that frequent island waters. One of the conditions of the permit was a Marine Mammal Research Program Pilot Study, which was to determine if whales and other marine mammals could be harmed by the noise.
According to Worcester, “The short summary is, there were no overt or obvious effects. The marine mammal experts in the field didn’t see any effects. Only when they took their data to the lab and did statistical analyses were they able to detect some subtle behavioral and distribution changes. For example, for humpbacks in Hawai`i, they found that when we were transmitting, the whales stayed slightly longer underwater between blows.” Off the coast of California, in an area near the Pioneer Seamount, scientists also found “a slight change in distribution,” Worcester said. “Animals tended to be slightly further away from our source when it was transmitting than when it wasn’t.”
“The conclusion of the marine mammal experts was that these effects were so subtle they wouldn’t affect the health of any individual humpback or, for that matter, the stock of humpbacks.”
The California testing occurred before the Land Board gave its initial approval to the ATOC project here. Coincident with the research – done in 1995 – three humpback whale carcasses were found in the area, prompting the National Marine Fisheries Service to call a temporary halt to the tests. No link was ever made to the ATOC tests, but many opponents remain suspicious.
In 1998, ATOC researchers sought to change two conditions of their 1996 permit. First, they wanted a time extension. Second, they wanted to be relieved of the requirement that they remove the cable within six months of the program’s end. The money that they had reserved for removing the equipment could be better spent on additional whale research, they said. Their request was rejected, for reasons set forth in a letter from then deputy attorney general Linnel Nishioka to the attorney representing Scripps on this matter, Mary Hudson.
“At the time the CDUP was granted, the applicant made numerous representations that it would remove the cable at the end of the pilot project unless the applicant received another CDUP allowing it to continue the project on a long-term basis…. Moreover, the applicant did not raise any objection to [the requirement] to remove all ATOC facilities at the conclusion of the experiment, to the extent economically and practically feasible,” Nishioka wrote.
Should the ATOC program be continued, Nishioka said, a new supplemental environmental impact statement would be required. “Contrary to your client’s assertion,” she wrote, “the permanent placement of an inoperable six-ton sound source and 28 miles of cable is a material and significant change to the CDUP that authorized the placement of those items for a period not to exceed three years.”
Six months later, Scripps submitted the application for the second Conservation District Use Permit for ATOC.
Complicating matters for both ATOC and the Land Board was the installation, in 1997, of a series of underwater cables criss-crossing the area of ocean floor where the ATOC cable lay. The Navy’s Pacific Missile Range Facility installed the cables as part of its Shallow Water Training Range. This was done, says Worcester, without his knowledge.
At the board’s meeting to consider the ATOC requests, Land Division administrator Dean Uchida told the board, “The Missile Range people put that system in. We tried to contact them to find out if there was any permitting done for that and were informed … that owing to federal supremacy and national defense, we might not be in any position to require the Navy or PMRF people to do anything.”
Notice of an environmental assessment was published in the Federal Register in 1997, according to a Navy spokesperson. At the state level, however, there seems to have been no public notice of the SWTR project.
Changing Climate
According to Worcester, the ATOC experiment has exceeded what researchers had hoped to accomplish. “Our overall goal was to determine the feasibility of using these acoustic methods to study and monitor very large-scale temperature variability in the ocean, whether due to anthropogenic gases or natural variability – for example, El Nino,” Worcester explained.
“On the thermometry component, we found we could measure temperatures more accurately than we anticipated. Our concern had been that small-scale variability in the ocean would scatter the acoustic signal. In fact, that scattering was less than we had predicted. At a range of 3,000-5,000 kilometers, we can measure average temperatures to within 1/100th of a degree. We were quite pleased and excited.
“The purpose of the current application for an additional five years was, now that we’ve made the basic temperature measurements, to see how useful these data are compared to other data sources – for example, satellites. The next phase of the study is aimed at getting a long enough time series to let us make this relative assessment.”
Board Denies Request To Curb HELCO Expansion
The Board of Land and Natural Resources closed another chapter in the ongoing saga of the dispute over the right of the Big Island electrical utility, Hawai`i Electric Light Company (HELCO) to nearly triple the electrical generating capacity of its 30-megawatt power plant on land in the state Conservation District at Keahole. On February 25, the board denied the request of opponents that it find that HELCO was not in compliance with at least three of the 15 basic conditions of Conservation District Use Permits that applied in May 1994, at the time HELCO received what it claims is a “default entitlement” to undertake the expansion.
By state law, the Land Board must approve actions with a four-vote majority (of six members). In the case of the HELCO request, just three members voted in opposition. This, HELCO has claimed, amounts to de facto approval.
In the five years since, ongoing court challenges have attempted to set limits on what HELCO can do on its 14.9-acre parcel, which sits just mauka of the Keahole airport and Queen Ka`ahumanu Highway. Although HELCO’s default entitlement to build the expansion was affirmed by Judge Ronald Ibarra in Third Circuit Court, the judge has said he does not want to usurp the Department of Land and Natural Resources when it comes to enforcing agency rules. Thus, when opponents of HELCO brought to Ibarra what they said were violations of the conditions attaching to a default approval of a Conservation District Use Permit, Ibarra referred them back to the DLNR.
In October 1999, the Land Board confirmed that the 15 standard conditions applied to the HELCO permit. However, when the Keahole Defense Fund and two individuals – Peggy Ratliff and Mahi Cooper – asked the Land Board to find HELCO had violated at least three of those conditions, including the one requiring completion of the project within three years, the Land Board refused.
Ben Kudo, attorney for HELCO, claimed that the requirement to complete construction in three years applied only to permit “approvals.” “We’re not here on approval, we’re here by action of law,” Kudo told the board. “We are entitled to automatically proceed to put the land to the uses which we applied for. No caveats. No conditions. No three-year requirement to complete construction.”
Kudo continued: “Our timetable was four to five years for construction” at the time the application was made, he said. “Since we were not permittees, … to mechanically apply, in retrospect, conditions such as Condition 15 [imposing the time limit], somehow works an inequity.” According to Kudo, work on the expansion is now 60 to 65 percent complete.
Board chairman Tim Johns took a slightly different position. “The board can consider whether the CDUA conditions are met and we can enforce them through a variety of methods,” Johns said. “And we would fully intend to do so if we find the applicable conditions are not satisfied. However, what we cannot do is enforce a condition in a way that violates either the statute or the order of the Third Circuit Court.”
The board then denied the request to find HELCO in violation of its Conservation District permit.
State Asserts Claim Over Archipelagic Waters
Acting on a petition brought by the non-profit Western Pacific Fisheries Coalition, the Land Board has approved bringing waters around the Northwestern Hawaiian Islands under closer control of the Department of Land and Natural Resources. The board authorized the Department of Land and Natural Resources’ Division of Aquatic Resources to develop rules that would establish state waters around the island chain as a Fishery Management Area.
The division has already prepared draft rules, but these must undergo an internal review by other state agencies before they are made public. The whole rule-making process, including public hearings and a public comment period, may take six to eight months or longer before final rules are in place, say those familiar with the process.
Members of the coalition cited their concern that the marine resources of the Northwestern Hawaiian Island that are technically under state jurisdiction are likely to come under increasing pressure in the near future. “We didn’t want to close [the area] to anybody, but we felt more management and a definitive fishery management area is needed,” Bob Enderson, one of the group’s leaders, told the Land Board at its February 25 meeting. “The state needs to take control of state waters.”
Robert Smith, head of the Fish and Wildlife Service office in Honolulu, agreed with the request. “The waters of the state, which are the closest to emergent lands in the leeward islands, are sensitive habitat and should be subject to appropriately strict rules to protect coral reef ecosystems… Fishery management areas can provide such regulations,” he said.
Smith continued: “The future has arrived in terms of expedition-style ocean recreation, with long-range sport-fishing boats and dive boats now in operation… Appropriate rules are needed now to govern activity in the leeward islands.”
Coalition member Linda Paul raised the prospect of fishing for live grouper, using cyanide, might occur in the island waters if the state did not exert its control over the area.
William Aila, a part-time fisherman and part-time harbormaster for the state at Wai`anae, suggested that the state should consider changing lobster fishing rules in the area. Larvae from lobsters in the Northwestern Hawaiian Islands “drift to the main Hawaiian Islands,” Aila said. The catch-all lobster fishery established by the federal Western Pacific Regional Fishery Management Council is affecting lobster recruitment around the main islands, he said. About 10 to 20 percent of the lobster catch from the Northwestern Hawaiian Islands occurs in state waters, says a source at the Division of Aquatic Resources.
Except for Midway atoll, the islands, shoals, islets, and all other emergent land in the Northwestern Hawaiian Islands is a part of the state of Hawai`i. As such, the state can claim jurisdiction out to three miles from the high-water mark.
A conflict may exist, though, with claims of the Fish and Wildlife Service, which operates a National Wildlife Refuge on the islands. “When the area was designated as a refuge,” explains Athline Clark of the Division of Aquatic Resources, “it was to be a seabird sanctuary. In the title of Roosevelt’s actual designation, he talked about all of the islands, reefs, and shoals in the area. When they drew the line, though, they just took a big magic marker and drew a huge line that goes way out to sea. The question that has never been resolved is how much of that is the Fish and Wildilfe Service’s jurisdiction. Over the years, they have continued to expand their claims to jurisdiction, to the point they claim it out to a depth of 10 fathoms now. But they say this is an administrative boundary, and don’t claim it as a refuge boundary.”
The state, the Fish and Wildlife Service, and the National Marine Fisheries Service all have jurisdiction at some level, Clark notes. “The question is, how do we best manage it. The state is proposing a regulatory framework by creating this fishery management area that provides authority to issue permits for all activities up there. Neither the Fish and Wildlife Service nor NMFS has the authority to manage everything.
“The bottom line: any activities have to be done cooperatively. All the research cruises, all the science that goes on – even debris cleanups, are done jointly. The only way you can do it is to bring everybody’s resources to bear.”
Clark and others in the DLNR, including chair Tim Johns, are confident the state will qualify for federal funds to increase its regulatory presence in the leeward islands. No date has been set for the public hearings on the draft rules.
Paint-Ball Project At Ke`ehi
Brandon F. Cayetano, son of the governor, has received permission to operate his Hawai`i All-Star Paintball company on about 13 acres of state land near Ke`ehi Lagoon.
The land had been used before as a parking lot and baseyard under revocable permits issued to several transportation companies. Those tenants were told by the City and County of Honolulu that a baseyard was not a permitted use on the land, which was zoned as P-2, General Preservation. In addition, the tenants were told, a Special Management Area use permit would be required. Rather than comply with county conditions, the tenants simply vacated the land in 1998.
The Land Board approved issuing a revocable permit and construction right of entry to Cayetano’s company at its meeting of February 25. The monthly rent is to be set after an appraisal is done. According to staff, Cayetano plans to have groups of tourists engage in paint-ball war games at the site.
Hamakua Land Goes Begging
When the Department of Land and Natural Resources proposed leasing state-owned land in the Hamakua area of the Big Island to a Japanese paper firm, the outcry of residents could be heard all the way to the governor’s office. At public meetings to discuss the proposal, which involved planting the area with eucalyptus trees to be turned eventually into paper pulp, members of the community asked that the DLNR instead offer to the public leases of smaller-lot parcels for diversified agriculture.
The Land Board agreed. Recently, the DLNR’s land office in Hilo offered at auction leases of four parcels in the Hamakua district. Only one of the five parcels received any bid: a 6.7-acre lot, which was sold at the upset, or minimum, rental price of $475 a year. The four other parcels, ranging in size from 25 to 63 acres, received no bids. Minimum annual lease rents on the parcels ranged from $1,785 (for the 25-acre lot) to $4,460 (for a lot of 63 acres).
At the March meeting where land administrator Dean Uchida reported the results of the public bidding, Land Board members expressed their frustration. Uchida said that the community had been informed through a mailing from its state representative, Dwight Takamine. Uchida speculated that the DLNR’s screening process to qualify bidders might have had something to do with the lack of bidding.
— Patricia Tummons
For Further Reading
Check out our on-line archive for past articles dealing with the complex subjects in this column.
ATOC
*January 1999
*April 1996
HELCO
*February 2000
*May 1998
*June 1994
Volume 10, Number 10 April 2000