Chapter 195D of Hawai`i Revised Statutes is the state’s law protecting endangered species. The Legislature faces a number of bills to amend this chapter. Each is certain to spark controversy.
Michael Buck, head of the Division of Forestry and Wildlife in the Department of Land and Natural Resources, was charged with drafting changes to deal with increasing pressures from developers proposing to clear lands where endangered species (especially plant species) are found. The department’s solution is to amend Chapter 195D to provide for mitigation agreements, allowing developers to take endangered species under some circumstances, and mitigation plans, setting forth the particulars of those circumstances.
A ‘License to Kill’
For many environmentalists, mitigation agreements are licenses to kill. For months, people in the environmental community (led by Susan Miller of the Natural Resources Defense Council and Dana Kokubun, representing the National Audubon Society and the Hawai`i Audubon Society) had regular meetings with Buck in an effort to iron out their differences over the DLNR’s proposal.
Both Buck and DLNR Chairman William Paty are to be commended for the effort they have made to accommodate environmentalists’ concerns. Many differences have been resolved.
But a number remain. One of the most troublesome is the fact that the proposed legislation would leave the public out of the decision between the DLNR and developers to allow mitigation in the first place. The DLNR’s proposal would allow for public review and comment only after the decision to mitigate had been reached and a draft plan prepared. If the legislation were altered to specify that decisions to mitigate would be brought before the Board of Land and Natural Resources, there would be at least some opportunity for public involvement early on.
In the view of many environmentalists, the DLNR’s proposal weakens existing law. In Buck’s view and that of the department, existing law, whatever its strengths, just isn’t working. In any event, the DLNR’s bill will likely be strongly opposed by the environmental community most closely involved with species protection efforts. Among some of the offsetting measures they may seek are: a provision allowing citizens to sue for enforcement; language allowing the DLNR to have access to any lands thought to contain threatened or endangered species; and, at the very least, language specifying that the authority to enter into a mitigation agreement rests with the Board of Land and Natural Resources (and therefore is subject to a public hearing) rather than simply with the department.
Citizen’s Suits
Senator Andrew Levin has reintroduced a bill calling for the first of those measures (citizen’s suits). Levin has also proposed establishing a seven-member Governor’s Commission on Endangered Plants and Animals, charged with developing plans to protect endangered species.
Yet another Levin bill calls for interagency cooperation in protection of endangered species to “ensure that any action authorized, funded, or carried out by [any state] agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of that species.” The bill does set up a means by which agencies may apply for exemptions. Insofar as no opportunity for public review is provided for, environmentalists might worry about that. Also, if the DLNR’s proposal for mitigation agreements is passed, it would only seem reasonable to require state agencies to follow the same procedures required of private parties before being allowed to harm any member of an endangered species.
Protection of Ecosystems
Still another bill, introduced again by Levin, would amend Chapter 195D by requiring the DLNR to identify and protect the natural communities, or ecosystems, in which endangered species are found, as well as protecting the endangered species themselves. The DLNR would be required to adopt guidelines for ecosystem protection, which could not be violated by any state or county agency unless a public hearing were held on the requested variance and the DLNR issued a finding that the agency’s action posed no significant risk to “any population of endangered or threatened species within the state.”
Another Levin measure would require the state to regard as endangered species all species that are listed in the Federal Register as potentially endangered. In addition, it would provide for public notice and, potentially, public hearings on any proposal submitted to the DLNR to remove a species from the endangered list.
The Perennial Eels
Senator Richard Matsuura’s appetite for eels is as strong as ever. Once more, he is proposing bills to allow the introduction of freshwater eels to Hawai`i. Identical bills have been quashed in previous years, with most legislators (Matsuura obviously the exception) having come to appreciate the dangers posed to Hawai`i’s endemic species by the introduction of more aggressive plants and animals.
Volume 1, Number 8 February 1991
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