Rob Parsons


Last Minute Exemptions and Revisions on Shoreline Setbacks

by Rob Parsons

Sept 1 , 2010

In the midst of an election year, the candidate chorus of providing jobs and rebuilding the economy has relegated discussions of environmental protection to the back burner. But a recent four-island tour of public hearings over widespread proposed rules revisions by the Office of Coastal and Conservation Lands (OCCL) brought out hundreds of residents concerned about the environment who challenged the process, timing and efficacy of the draft changes.

Highlights of the proposed changes include increasing the shoreline setback to 40 feet, fee increases and protection of Hawaiian religious uses.

Though mainstream media reporting focused on just a few provisions in the 71 pages of rules revisions–a Star-Advertiser editorial applauded protection of public beach access, “balancing of land rights,” and shoreline setback lines based upon annual erosions rates–the environmental community zoomed in on the fine print in the rules, clearly concerned about setbacks of another kind.

“It is sad when regulations as important as these are given but the bare minimum of study and public process,” said Marti Townsend, attorney with KAHEA: The Hawaiian-Environmental Alliance. “We are talking about 2 million acres of conservation lands–our watersheds and near-shore waters–the important places.”

Serving as hearings officer, OCCL Administrator Sam Lemmo explained to a Kona audience that, “my little office is overwhelmed,” and the amended rules were intended to help them do their job better.

But Kona resident Shannon Rudolph asked why OCCL was spending so much time on rules revisions when it was having such a tough time taking care of existing rules. Susan Golden, a local activist, questioned the timing of the proposed rule changes, stating, “Looks like someone is trying to pull wool over our eyes.”

Lemmo said the new rules, last changed in 1994, were the result of a collaboration of agencies within the Department of Land and Natural Resources (DLNR), stakeholders and hardcore environmental groups, and told his Oahu audience they were “a long time coming.” Others questioned what groups had provided input, and when.

Townsend remarked that the rules first reached the public in July, and are expected to be approved by December. She also drew attention to DLNR’s 57-page list of activities to be exempted from EIS studies, from road building to chemical herbicide application, and more. Wondering if it is just coincidence these actions are being promulgated in the final months of the Lingle administration, she wrote, “Feels more like a 50-yard dash than a ‘long time coming’ to me.”

“Are these changes and exemptions timely, necessary or just a last-gasp attempt by our Republican governor to strip away Hawaii’s environmental protections and open all our lands up for business?” asked Lance Holter, Maui’s Democratic Party Chairman and head of Sierra Club-Maui. “For almost eight years now Hawaii’s laws that protect the environment, lands, water and coastlines have been under siege by the Lingle/Aiona administration. This is the bitter icing on the burnt cake. It’s time the public put a stop to it once and for all.”

West Hawaii resident Chuck Flaherty, president of ‘Apono Hawaii found the revised rules negligent in addressing native Hawaiian rights. “The OCCL has an affirmative duty to protect the traditional, customary and religious practices of kanaka maoli,” stated Flaherty. “Simply asking a permit applicant to ‘acknowledge’ those rights, when they likely have no earthly clue about what those rights are, is not an affirmative action.

“The proposed rules do not adequately reflect the constitution, Hawai’i Revised Statutes and case law with regard to native Hawaiian rights,” said Flaherty. “OCCL needs to go back to the drawing board instead of the Board of Land and Natural Resources [to approve the rules].”

KAHEA Executive Director Miwa Tamanaha reviewed the rules and saw, “a million red flags.” Believing the proposed changes would bring wider discretion to a department already claiming to be under-funded and understaffed, she asked, “In a case where resources are scarce, isn’t better to have rules that are more clear and well-defined? Why introduce more uncertainty about what might or might not be allowed?”

Tamanaha expressed concern that language to, “define the comprehensive management plans out of existence,” is contrary to Judge Hara’s landmark ruling in 2007, which overturned a Conservation District Use Permit originally granted for six Outrigger telescopes at the summit of Mauna Kea.

“The department [DLNR] has written comprehensive management plans in the past,” said Tamanaha. “Instead of following this precedent, they are now substituting site-by-site piecemeal planning, to be prepared by those proposing development on conservation lands. Judge Hara deemed exactly this type of piecemeal planning to be inconsistent with the statutes protecting conservation lands.”

Conservation lands in Hawaii stretch from volcanic mountaintops out into the state’s coastal waters. Implications OCCL’s rule changes would have on ocean aquaculture ventures have even raised eyebrows on the continental United States.

Christina Lizzi is a Policy Analyst on open ocean aquaculture with Food & Water Watch, based in Washington, DC. She has traveled to Hawaii three times over the past two years, to work with local cultural and environmental groups on aquaculture issues, and authored the detailed study, “The Empty Promise of Ocean Aquaculture in Hawaii” in April.

“DLNR has struggled to oversee two existing fish farm operations on leased submerged lands,” wrote Lizzi. “The proposed changes involve a switch to complaint-based monitoring, and completely drops the requirement for annual compliance reports.

“Instead of gutting its regulations to cut costs,” Lizzi added, “OCCL should focus on meeting current obligations and consider postponing approval of new, industrial-scale ocean aquaculture projects that it does not have the capacity to oversee.”

DLNR Chairwoman Laura Thielen and OCCL’s Lemmo were sent a detailed list of questions for this article, but did not respond.

Office of Coastal and Conservation Lands proposed rule changes may be viewed online at: hawaii.gov
OCCL is accepting official comments until Sept. 7.