Rome wasn’t built in a day. Had the Department of Land and Natural Resources been in charge, it wouldn’t be built yet.
This issue of Environment Hawai’i revisits several controversial issues that have fallen into the lap of the DLNR. For reasons not entirely clear, the department staff seems to be constitutionally incapable of bringing matters to a resolution, swift or otherwise. (Our September issue (scroll down on linked page to see article listings) will look at yet another lingering controversy that involving charter boat operators on Kaua’i’s North Shore whose fires have been stoked rather than stayed by DLNR staff).
We are not unmindful of the need to proceed with all due legal caution. Nonetheless, it would seem that the department’s staff members and the attorneys they consult have lost sight of the fact that their true constituency is the public and not any particular developer lessee or landowner. Time and again, department rules and regulations seem to be bent to favor the latter and disadvantage the former. As the Lanikai Association warned in its letter to Land Board Chairman William Paty last May 16, when rules are inconsistently applied and special favors granted, the public is sent a signal that with enough money, anyone can build anything, anywhere in the islands of Hawai’i.”
Avoiding the Board
We labor under the belief that if the present members of the Board of Land and Natural Resources were aware of what has been done in their name by their staff many of the problems discussed in this issue would be on the road to resolution. But in a sense, staff holds the Board hostage to agendas created by the staff itself. As a result, the Board is routinely asked to approve travel request items, temporary appointments and the like, while major controversies rage outside the meeting room doors.
The public is no less at the mercy of DLNR staff. At the moment, there is no way to petition the Board to review staff actions or consider questions that staff for whatever reasons, may be reluctant to bring forward for Board decision.
Since July of 1990, three new members have joined the Board. No longer can it be described as a rubber-stamp body that regarded meetings as an opportunity to catch up on missed sleep. We would urge it to consider taking steps to give the public recourse to appeal or challenge staff actions outside of a courtroom setting.
Delays are not without cost. The longer applicants are allowed to believe that their proposed actions stand a chance of approval, the more time, money and effort they invest to see their proposal through to a successful conclusion. And with every dollar they invest, their putative rights to develop are further entrenched (or so they argue). Delays are thus far more than neutral holding actions. As time progresses, the likelihood of a favorable outcome for the developer grows as the public’s ability to press for the enforcement of laws intended to control development diminishes.
As an aside, we would note that state law allows the Board to issue declaratory rulings, an approach that might be used in addressing the issue at hand. However, Board rules provide no guidance to anyone who might wish to request a declaratory ruling.
Meanwhile, in Hilo
Last November, Environment Hawai’i reported on circumstances surrounding construction of Hilo’s new sewage treatment system. Some of the practices involved in the award of contracts had prompted the Department of Health, which supervises grants of federal and state money for construction of wastewater systems, to warn the County of Hawai`i that reimbursement from federal funds would not be forthcoming for the construction-management contract that the county awarded to Barrett Consulting Group because federal procedures were not followed in BCG’s selection as design contractor.
When Harold Sugiyama, director of wastewater in the county’s Department of Public Works, was asked about this, he stated flatly that the Department of Health’s concerns had been satisfied and that it had agreed to allow the reimbursement.
Health Director John Lewin, in a lengthy letter drafted by Dennis Tulang, head of the DOH’s Wastewater Branch, responded to many of the criticisms in the November issue. Most comments take exception to findings reported by the Inspector General of the Environmental Protection Agency in an “early warning” audit it released last September.
However, Lewin does say that Harold Sugiyama erred in stating that federal funds would be used to reimburse expenses in connection with BCG’s construction-management contract. “In the case of the Hilo project,” Lewin writes, “we do not believe that there were any improper procedures in selecting the design consultants although the federal procurement procedures were not complied with since federal funds were not utilized for the design costs. Since the same consultants, Barrett Consulting Group, are being utilized for construction management, the costs for construction management services are not eligible for federal funding. This determination or decision has already been made.”
As to Lewin’s statement that “federal procurement procedures were not complied with since federal funds were not utilized for the design costs,” he has the sequence backwards. Precisely because federal procurement procedures were not followed, federal funds were not spent on the design phase. The county had every intention of getting federal money for design of the system, as the reports in the November edition show.
We looked at Hilo’s wastewater treatment construction program not because there seemed anything exceptional about it, but rather because its problems were more likely typical of programs statewide. Such suspicions were bolstered a few months later when the EPA Inspector General’s office, the same that issued the Hilo criticisms, conducted a post-construction analysis of Honolulu sewage treatment works. Some $29 million in federal reimbursement payments were questioned, with the auditors recommending Honolulu return to the federal government at least $13.2 million in questionable outlays.
Volume 2, Number 2 August 1991
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