<\/b>On September 14, the state Board of Land and Natural Resources approved the purchase of 2,800 acres of conservation and agricultural lands in Wahiawa from Dole Food Company, Inc., for $15 million. The lands are slated for a variety of uses, including camping, forestry, and habitat restoration for the endangered Hawaiian hoary bat. The Department of Land and Natural Resources\u2019 Division of Forestry and Wildlife (DOFAW) will now hold public hearings on adding them to the `Ewa forest reserve.<\/p>\n
\u201cThis has been a very heavy lift,\u201d DOFAW administrator Dave Smith told the board. Smith said his division had been working for years to acquire the lands that include a crucial access road to the Poamoho section of the forest reserve, but had found it difficult to pull the funding together, given the history of the four parcels to be acquired.<\/p>\n
It\u2019s relatively easy to buy pristine forest or lands flush with endangered species, but that\u2019s not the case for areas that have been cleared, used for agriculture, and contain a couple of landfills and a former firing range, he said.<\/p>\n
Despite the properties\u2019 checkered past, DOFAW, with the help of the Trust for Public Land (TPL), was able to meet Dole\u2019s purchase price with funds from the federal Forest Legacy program, the state\u2019s Legacy Land conservation program, the U.S. Fish and Wildlife Service, the U.S. Navy, and the Kawailoa wind farm, which, with its high level of bat take, has been under pressure to expand its mitigation program. Once the lands have been acquired, DOFAW says it will develop a community-based plan for their use.<\/p>\n
The Warts<\/i><\/b><\/p>\n
When DOFAW\u2019s request to acquire the lands and hold public hearings to add them to the forest reserve came to the Land Board, Smith was prepared to field a lot of questions about the contaminants there. A Phase 1 environmental site assessment had identified two former Navy dumpsites that may have encroached onto the properties, as well as an unauthorized shooting range that had been operated by a former Dole tenant.<\/p>\n
The Navy is responsible for remediation and maintenance of the two landfill sites, a DOFAW report states. The more significant hazard the report continues, is the former firing range, which spanned about an acre, but has a potential affected area of about 2.5 acres.<\/p>\n
\u201cTo the best of our knowledge, the pistol range was probably active for two years. DOH [the Department of Health] had some complaints from hunters who said, \u2018Hey, you should check this out,\u2019\u201d Dole operations director Daniel Nellis told the board. \u201cThe tenants were primarily former enforcement officers. [The shooting range was] part of their recreation. That\u2019s how they explained it to us. They liked to hunt and do target practice. \u2026 We never should have allowed so much freedom to our tenant. They scared off poachers and illegal trespassing hunters [but] the trespassers did us a favor by reporting,\u201d he said.<\/p>\n
Soil testing revealed significant lead contamination at the site, \u201cwith some samples as high as 24 times the DOH Tier 1 Unrestricted Environmental Action Levels (EALs),\u201d DOFAW stated in its report to the Land Board. Antimony was also detected a lower levels, with the highest concentration being 3.5 times the DOH\u2019s Tier 1 EALs.<\/p>\n
Normally, when the Land Board approves the acquisition of private lands such as these, the seller would have to complete a Phase 2 site assessment and remediation to state and federal health standards before the deal closed. The seller would also indemnify the state from any damages or claims resulting from the release of hazardous materials. In this case, Dole refused to clean the site and indemnify the state. Instead, TPL assumed the cleanup responsibilities and plans to hire Ford Canty to do the job and secure a No Further Action (NFA) determination from the DOH.<\/p>\n
\u201cIt is imperative that the unrestricted NFA be obtained, as the fair market value determined by the appraisal did not consider the effects of contamination,\u201d DOFAW\u2019s report stated.<\/p>\n
With regard to indemnifying the state, Dole proposed that its liability extend to just the 2.5-acre affected area and be capped at $425,800, which is twice the estimated cost of obtaining the NFA. The state\u2019s attorneys agreed that Dole\u2019s liability would end once the NFA is issued or five years from the date of the warranty deed.<\/p>\n
\u201cLand Division and the Attorney General have concerns about the risk the state would incur by 1) acquiring the property prior to obtaining the unrestricted NFA from DOH \u2026 and 2) significantly limiting the indemnification provision in the warranty deed, and have advised DOFAW accordingly,\u201d the report states.<\/p>\n
Satisfied that TPL would secure an NFA, DOFAW stated that it believed the risk to the state was minimal and recommended board approval.<\/p>\n
\u201cWe think the public benefits far outweigh the risk. \u2026 We feel that we can manage this property. It doesn\u2019t represent anything out of the norm,\u201d Smith told the board, noting that at Kanaio, Maui, DOFAW manages thousands of acres of former military firing ranges that contain unexploded ordinance.<\/p>\n
DOFAW O`ahu branch manager Marigold Zoll added that the Poamoho section is the most actively managed forest reserve on the island and provides access to its most beautiful hiking trail.<\/p>\n
\u201cHelemano contains such a varied topography \u2026 it really provides an opportunity to encompass every facet that we do, from timber management, to camping, ADA [Americans with Disabilities Act] camping, biking, hiking. It\u2019s been in the works for five years. We\u2019ve had a lot of time to look at the place and dream about what we\u2019d do with it,\u201d she said.<\/p>\n
Once her agency acquires the lands, she said it will continue managing access the way it has been under its access agreement with Dole \u2014 <\/b>public access on weekends and holidays and permitted access to the upper forest reserve.<\/p>\n
\u2018Frosting Over the Dirt\u2019<\/i><\/b><\/p>\n
While DOFAW had accepted Dole\u2019s terms, Land Board member Keone Downing wasn\u2019t such a quick sell. \u201cIf it cannot be cleaned up, we\u2019re stuck with this property. We don’t know what\u2019s on there other than the samples [taken in Phase 1] \u2026 Why do we feel we\u2019re in a rush before it gets cleaned up?\u201d he asked. He suggested that the department could forgo buying the parcel that has the firing range on it and just buy the three others.<\/p>\n
Irene Sprecher, head of DOFAW\u2019s Forest Legacy program, admitted that the agency was trying to meet Dole\u2019s deadline to sell the lands, which are the last parcels in a large portfolio of O`ahu lands the company put up for sale years ago.<\/p>\n
\u201cThey would like to move on,\u201d she told Downing.<\/p>\n
She added that the type of lead at the firing range can\u2019t leach into the groundwater.<\/p>\n
Board member Stanley Roehrig also expressed concern over the state\u2019s potential liability if remediation isn\u2019t successful. “If the cost of remediation is greater that $450,000, the state is going to have the risk of loss on our shoulders [and] there\u2019s nobody to indemnify us,\u201d he said.<\/p>\n
Sprecher replied that consultants have estimated that the maximum cost for remediation would be about $200,000 and that amount will be put in escrow.<\/p>\n
Roehrig was not satisfied, pointing out that a Phase 2 site assessment hasn\u2019t been done yet. \u201cThere has not been any drilling into the groundwater. \u2026 That occurs in the ESA 2. Nobody knows at the present time what\u2019s in there. This was an unlicensed firing range \u2026 We don’t know what they fired. \u2026 Antimony (found in bullets) is highly toxic. It\u2019s a wonderful project, but we can\u2019t put frosting over the dirt,\u201d he said. (Roehrig is referring to a Phase 2 Environmental Site Assessment, or ESA.)<\/p>\n
TPL-Hawai`i executive director Lea Hong tried to assure Downing and Roehrig that its contractor, Ford Canty, was actually obliged to fully remediate the site. \u201cThey will, for $200,000, get an NFA. They are contractually obligated to clean it up to an NFA level. There is someone on the hook. We negotiated a very tight contract with Ford Canty,\u201d she said.<\/p>\n
\u201cSo you\u2019re not going to pay them until you get an NFA?\u201d Downing asked.<\/p>\n
\u201cBasically,\u201d TPL project manager Steve Rafferty replied.<\/p>\n
To this, Downing said, \u201cA lot of people start with good intentions \u2026 then they leave.\u201d<\/p>\n
When Roehrig started speculating on what would happen if Ford Canty ran out of money before securing an NFA, board member Chris Yuen, who supported the acquisition, said that this was not the first time the company had undertaken such a project and reminded the board that Dole would be providing backup funding amounting to double the contract price.<\/p>\n
Rafferty also explained that the remediation would be relatively straightforward. The dirt berms that had been used as targets along the 70-foot-long range would be razed and trucked to the West O`ahu\u2019s PVT landfill, which accepts construction and demolition waste.<\/p>\n
Closing the Deal<\/i><\/b><\/p>\n
Nellis told the board that the firing range area occupied less than one percent of the total area DOFAW was seeking to buy and isn\u2019t near the public hiking trail.<\/p>\n
When Roehrig asked why the board shouldn\u2019t excise the firing range from the deal, Nellis said that would require Dole to go through another subdivision process, when it already did that to make the parcels available for sale.<\/p>\n
\u201cWhat if we help you with subdivision process?\u201d Roehrig asked.<\/p>\n
\u201cThat\u2019s a couple more years. \u2026 If we can\u2019t close the deal, then they\u2019re [Dole] gonna say no deal and open it up for sale,\u201d despite the fact that DOFAW is the best steward for the lands, Nellis replied.<\/p>\n
\u201cIt\u2019s only my opinion, but it\u2019s highly unlikely that cleanup is going to cost three times the original quote,\u201d he added.<\/p>\n
Downing said he was glad Dole wanted DOFAW to have the lands, but questioned the rush to hand them off.<\/p>\n
In short, Nellis said that the company, anticipating the sale of its Hawai`i portfolio, has already spent the money to be gained from it this year.<\/p>\n
If the deal with DOFAW falls through, he said the U.S. Army would be the likely buyer for the conservation lands and the agricultural lands would be sold to farmers.<\/p>\n
Yuen moved to approve DOFAW\u2019s recommendations; member Sam Gon seconded the motion. \u201cThis is a wonderful project. It\u2019s a very important piece of land for the state to acquire. \u2026 They\u2019ve been negotiating for several years and sometimes you don’t get everything you want,\u201d Yuen said earlier in the meeting.<\/p>\n
In discussing Yuen\u2019s motion, Roehrig said he was heartened by the fact that more than $600,000 dollars was available for remediation, but said buying the land before it was cleaned was not a good precedent. \u201cIf it\u2019s a small project, maybe we look the other way [but] it\u2019s got a lot of hairs on it,\u201d he said.<\/p>\n
Gon agreed with Roehrig that the state was taking on a lot of risk buying the property at this stage, but said that the parties involved have tried to minimize the health risks and have made clear the nature and scope of those risks.<\/p>\n
Deputy attorney general Julie China, who assisted DOFAW and the Land Division in negotiating the terms of the purchase, assured the board that her department was not opposed to the acquisition, despite an assertion by Roehrig that it was. \u201cThis was the best deal that I think we could make. We wanted to present the project to the board \u2026 while disclosing warts and all,\u201d she said.<\/p>\n
Downing echoed Roehrig\u2019s concerns about setting a bad precedent, but said he would vote in support of Yuen\u2019s motion. \u201cBut I just want to be clear that I don’t believe that people should be able to come to us and say, \u2018I have all this set up to do it,\u2019 because there\u2019s no guarantees it\u2019s going to be done,\u201d he said.<\/p>\n
\u201cI\u2019m sorry that Dole can\u2019t wait until this project is clean. If it\u2019s that small, it should be done fairly quickly. Fifteen million for a company like Dole is not very much money,\u201d he said.<\/p>\n
Yuen pointed out that the lead in the berms can hurt people only if they are exposed to it, which he seemed to think was unlikely. \u201cIf a kid made mud cookies [from the dirt at the range] and ate them, it would be bad,\u201d he said.<\/p>\n
In the end, the board approved DOFAW\u2019s request to acquire the land and hold public hearings on the forest reserve addition, among other things. Roehrig voted in opposition.<\/p>\n
(For more background on this, see, \u201cData Gaps Confound Efforts to Limit Harm to Bats Posed by Wind Farms<\/a>,\u201d from our February 2017 issue.)<\/p>\n \u2014 Teresa Dawson<\/i><\/b><\/p>\n","protected":false},"excerpt":{"rendered":" On September 14, the state Board of Land and Natural Resources approved the purchase of 2,800 acres of conservation and agricultural lands in Wahiawa from Dole Food Company, Inc., for $15 million. The lands are slated for a variety of … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":10649,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[441],"tags":[3],"class_list":["post-10648","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-october-2018","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10648","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10648"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10648\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/10649"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10648"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10648"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10648"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}