West Maui Dams Win State Approval On Basis of a 16-Year-Old EIS
On October 14, the state Commission on Water Resource Management approved the application of Maui County to build two dams in an area designated as the Honolua Watershed Project, on West Maui. The effort involves both the county’s Department of Public Works and the U.S. Soil Conservation Service and is intended to reduce flooding, erosion and sedimentation of coastal waters, according to the COWRM staff report.
An environmental impact statement for the project was completed in April 1976. Since that time, despite changes in thinking on soil conservation and dam construction, the project plans have been unaltered. Work on various phases of the project has been accomplished in fits and starts over the intervening period, as federal money became available. At the October 14 meeting, the county was seeking approval for two stream channel alteration permits, which would allow the dams to be built on the Honokowai and Mahinahina streams.
The COWRM staff report noted “the absence of a background environmental study despite the severe impact these dams would inevitably have on the native diadromous stream biota” (fish that spend part of their lives in fresh water and another part in sea water). It pointed out that the Division of Aquatic Resources had described the management of these two streams as “very unfortunate.” The staff report continued: “Old diversions at the 1,550-foot elevation on the Kapaloa Tributary of Honokowai Stream, and at 1,020 feet on Honokowai Stream, under most conditions, completely divert the stream flows into Maui Land and Pineapple’s Honokohau Ditch System. In the 1980s, the U.S. Conservation Service, in conjunction with the Maui County Department of Public Works, channelized the lower reaches of both streams with a solid concrete design that completely destroyed the existing habitat. The U.S. Army Corps of Engineers did require the U.S. Soil Conservation Service and Maui County to apply for an after-the-fact permit with the understanding that the U.S. Soil Conservation Service and Maui County would work with the U.S Fish and Wildlife Service to identify and provide appropriate compensation for the loss of aquatic habitat. This compensation did not occur.
The Water Commission was asked to require Maui County and the Soil Conservation Service to work with the Department of Land and Natural Resources to “determine the feasibility and practicality of incorporating a passageway for native aquatic biota at the Honokowai Dam,” with the most effective and feasible passageway then being built into the dam.
The county and the Soil Conservation Service refused to accept this condition, stating that they had no idea how much such a passageway similar in concept to salmon ladders in place on mainland dams – might cost nor how effective it would be. After a recess, during which staff from the DLNR’s Division of Aquatic Resources engaged in further negotiations with the county and the Soil Conservation Service, it was agreed to set aside $100,000 to allow design of a passageway suitable for the dam and which would also allow movement through channelized stream beds. If the design costs do not eat up the entire $100,000 allowance, money left over could be used to build the passageway. The total amount that is available for the two dams is $4 million.
Discussion at the COWRM meeting was lively. Marjorie Ziegler commented that the construction of large dams – the one on Honokowai Stream would be 50 feet high – to control problems of run-off caused by inappropriate land uses seemed misguided. In a follow-up letter to the Water Commission, Ziegler described their approval as “disappointing.”
“May I ask why the Commission did not require a Supplemental EIS as part of the permit application? … There have been significant new developments in technologies and philosophies relating to sedimentation and flood control, and preferred alternatives to dams certainly exist, such as eliminating the source” of siltation.
“By not requiring a Supplemental EIS, the Commission has not only deprived itself and the public of relevant information on the project but has also contributed – in a small yet significant way – to the general problem of non-compliance with local and federal laws by government agencies.
“Although the Commission acknowledged most of these concerns, the possibility of lapsing federal dollars resulted in what I believe was a bad decision.”
USDA ‘Streamlines’ Biotech Tests
The U.S. Department of Agriculture informed the state in September that it was putting into effect a new policy for issuing permits for the release of genetically engineered plants. Under the new policy, permits obtained by any party, any place, could be used in Hawai’i simply by “renewing” the permit, with no environmental assessment beyond that accompanying the original permit. If the state failed to register objections within ten days of being notified, the tests could proceed. Hawai’i was informed it was the first state where this new policy would be tried out.
In other words, if a grower had received a permit for a genetic release in Iowa, based on an environmental assessment specific to Iowa, by applying for a renewal permit, that same grower could receive permission to conduct a release in Hawai’i. No site-specific environmental assessment would need to be conducted regardless of the dissimilarity between the site used as the basis for the original environmental assessment and that where the release, under the “renewal” permit, is to occur.
In fact, that is not a hypothetical situation. One of the several “streamlined” renewal permits that have been forwarded since September to the state concerns a genetically engineered strain of corn, the environmental assessment for which described the benign consequences of its release into the Iowa growing environment. Another fast-tracked permit was for genetically altered soybeans, originally field tested in the Midwest.
The state government responded to the notice in a letter September 30, 1992, sent out by Hawai’i’s Washington office. R. Philip Shimer, director of that office, pointed out to the USDA that Hawai’i has had “a long history of unwanted ‘escapes’ of exotic species into our environment. Hence, we have concern about the issue of deliberate release of regulated articles into our environment.”
Shimer also noted that the new policy ran counter to an understanding that state officials thought they had arrived at with the USDA – namely, that Hawai’i and Alaska would be exempt from the proposed USDA policy to issue blanket permits for releases of crop materials in the 48 contiguous states, regardless of the county and state where field tests were conducted.
That understanding was plainly stated two years ago in a letter to state Representative Jim Shon from Terry Medley of the USDA’s Animal and Plant Health Inspection Service (APHIS). To clear up what Terry described as “certain misunderstandings,” he told Shon, “we do not issue permits for field tests in one state based on impact analyses conducted in another state. All our environmental assessments are specific for the particular field test site in the individual state involved.”
New-Found Rule Expands Time Limits for CDUAs
As regular watchers of the Board of Land and Natural Resources may know, people receiving Conservation District Use Permits are generally under rigid time limitations. The standard conditions set forth in the Land Board’s rules require the permitted work to begin within a year of the award of the permit and to be completed within three years of the date of the award.
CDUA rules Chapter 11, Subtitle 2 of Hawai’i Administrative Rules – allow for time extensions, but only when the extensions are requested before the permit lapses, and even then, only for good cause.
A recent case has changed all that. A lawyer for a permittee who had not applied for an extension before the expiration of the one-year commencement of construction deadline looked beyond Chapter 11, Subtitle 2, to the administrative rules governing Land Board activities in general. Those rules, Chapter 11, Subtitle I, provide for the Board to award time extensions for good cause under any circumstances except those unlikely conditions where an extension would be a violation of law.
The rule is §13-1-14, “Continuances or extensions of time.” It reads in its entirety: “Whenever a person or agency has a right or is required to take action within the period prescribed or allowed by these rules, by notice given there under or by an order, the board or its chairperson may for good cause and if permitted by law: (1) Before the expiration of the prescribed period, with or without notice, extend the period; or (2) Upon application, permit the act to be done after the expiration of a specified period.”
When the lawyer for the parties whose permit had expired invoked this rule, the Board did not immediately grant the relief sought but instead turned to the attorney general’s office. The resulting opinion apparently determined that the rule was valid and could be used in the circumstances; what it actually said we may never know. In any event, the particulars of the case at hand would seem to have warranted an extension. The Board had imposed such restrictive conditions on the permittee that the permittee would have never been able to comply with them. Relief, it seemed, was warranted under the “good cause” provision.
Since then, however, the Board has been giving out extensions under this rule with little attention appearing to be paid to the requirement that “good cause” be shown. At its meeting of September 25, 1992, the Land Board used this rule to grant at least two extensions of Conservation District Use Permits that otherwise would have gone back to square one. Perhaps the good cause existed, but no effort was made to determine that this was so. On October 23, the rule was used again, although in this case (involving a transmission line on Kaua’i that was the subject of a federal lawsuit), it is not clear why CDUA rules would not have allowed the extension request to be accommodated.
Going outside of the CDUA rules for matters pertaining to CDUAs should not be undertaken lightly, especially when the overall effect is to amend Board practices so dramatically. One can only shudder in fear of the day lawyers will discover the Board’s ultimate rule, §13-1-11(d): “Any rule in this chapter may be suspended or waived by the board or the presiding officer to prevent undue hardship in any particular instance.”
Board Drops Curtain On Ha’ena Seawall
In 1988, the Land Board granted permission for owners of land at Ha’ena, Kaua’i, to build a seawall. For reasons known only to the owners (Murcia-Toro, Inc.), the county Special Management Area permit as well as the state-issued shoreline certification, both required before construction can begin, were allowed to lapse and no new application has been made for either.
On October 23, 1992, the owners’ agent appeared before the Board to request an extension, over and above one granted earlier this year, of the deadline to complete construction. As noted in the staff’s submittal to the Board, seawalls have become more controversial in the years since the Conservation District Use Permit was issued for this one. Studies of shoreline erosion and accretion indicate that whenever seawalls are built, they tend to accelerate beach decline. Moreover, in this case, there is the added likelihood of dune burials being discovered. An archaeological review that the owners were to have conducted has not yet been approved by the state Historic Sites Division.
The staff recommendation was to deny the extension request. Once more, however, the request was held up not to the standards of CDUA rules, but to §13-1-14 of the Board’s administrative procedures rules. The applicant’s “ignorance of SMA and CDUP deadlines indicates a disregard of the terms and conditions of the permits and does not support the ‘good cause’ criteria required for extensions of time under Section 13-1-14,” the staff report stated.
The Board denied the extension, citing specifically growing concerns over the long-term damage that seawalls can inflict. The applicant still has until March 11, 1993, to complete work on the seawall but, by virtually all accounts, it will be impossible to obtain the required permits within that time. Failing that, it was the staff’s recommendation that when this next deadline comes, the Board revoke the permit.
Volume 3, Number 5 November 1992