Hawaii Land Use Law and Policy

Our Love Affair with Streamlining

noreply@blogger.com (Hawaii Land Use Law) — Sat, 21 Jan 2012 06:14:00 +0000

According to Merriam-Webster’s online dictionary, “streamline” is defined as “to make simpler or more efficient.” When the economy gets tough, it’s no wonder that decision-makers look to streamline land use regulatory processes as a way to move large development projects forward to create jobs and stimulate the economy.

However, regulatory processes are complex, based on years of agency interpretation, permit applicant practice, legislative tweaks, and the occasional court made rule. Changing any one part of one regulatory process can have systemic implications that roil other regulations that make up the tapestry of land use entitlements. In their frustration, decision-makers propose wholesale exemptions.

Exemptions have consequences all their own. The regulatory system and the area of administrative law came about to relieve the pressure on courts from dealing with myriad controversies that became more and more complex as our society advanced. The regulatory process creates a rational, procedural based framework within which issues such as impacts from proposed developments, can be evaluated and mitigated based on the best available science. In permitting, agencies review these facts and weigh them against criteria established by a legislative body. The record the agency creates and the decision it makes is the basis for any challenge taken up at the judiciary by parties with standing. Courts happily rely on agency expertise on factual issues. A judge is learned in the law but cannot be expected to know engineering methodology or complex scientific analysis.

What would the world look like without administrative law and the regulatory process? The courts would have no record from the agency to work from. All facts would need to be reestablished on the record before the judge or a jury. There would be no third party agency standing between the persistent permit applicant and the angry plaintiff. The judge would not have the framework of a reasonable process to evaluate the facts; there would be no standards or criteria to apply to the facts. In essence, the judge would have to rely on general principles of land use law. For example, without a permitting process for the coastal zone, a judge in Hawaii might rely on general principles of Hawaii constitutional law and public trust doctrine. The grey area and uncertainly in this scenario should have lawyers salivating as thoughts of billable hours dance through their heads.

Instead of wholesale exemptions to environmental laws, which are not streamlining, let’s actually think about rational, reasonable processes that are agnostic about outcomes and provide decision-makers with the information they need to make sustainable decisions that balance economic, environmental, and socio-cultural issues.

Panel on Climate Change Adaptation

noreply@blogger.com (Hawaii Land Use Law) — Sat, 21 Jan 2012 03:57:00 +0000

On December 11, 2011, I joined Maxine Burkett, Director, Center for Island Climate Adaptation and Policy; John Marra, Climate Services Director for the Pacific Region, National Oceanic and Atmospheric Administration; and Deanna Spooner, Coordinator, Pacific Islands Climate Change Cooperative on Insights on PBS Hawaii to discuss climate change adaptation policy. Enjoy the show:

Insights - Climate Change from PBS Hawaii on Vimeo.

TOD, TAD, TAJ: Transit Development Alphabet Soup

noreply@blogger.com (Hawaii Land Use Law) — Sat, 29 Oct 2011 23:08:00 +0000

You may have heard of transit-oriented development (TOD) in conversations about Honolulu's 20-mile, 21-station rail transit project. But, you may not have heard of TADs and TAJs.

The Transit Cooperative Research Program's August 2011 Legal Research Digest defines these terms and more in its recent report entitled, Transit-Oriented and Joint Development: Case Studies and Legal Issues.

Transit-Oriented Development (TOD). TOD sets the framework for good transit-oriented planning and development. The Report identified a performance based definition of TOD: "A TOD typology should meet five main goals: location efficiency, rich mix of residential and commercial choices, value capture, place making, and the resolution of the tension between node and place." The demand for TOD is expected to increase based on three trends "a resurgence of downtowns, continued growth of the suburbs, and a renewed interest and investment in transit."
Transit-Adjacent Development (TAD). A TAD is not good. "A TAD is just that—development that is physically near transit; it fails to capitalize upon this proximity, however, to promote transit riding. A TAD lacks any functional connectivity to transit—whether in terms of land-use composition, means of station access, or site design. A number of U.S. TODs discussed in the literature more closely resemble TADs." The Report goes on to describe TAD's as "more suburban-like, with lower densities, a dominance of surface parking and auto-centric design, limited pedestrian and bicycle access, more single-family homes, and industrial and segregated land uses."
Transit-Joint Development (TJD). TJD is good in the context of transit. According to the Report, "joint development, in the context of TOD, is the process in which a public entity and a private developer work together under a common vision in order to create a successful development." Joint development projects can be classified into nine sub-categories based on two broad categories: revenue-sharing and cost-sharing arrangements. The nine sub-categories are "1) station leases and development, 2) nonstation leases and development, 3) station interface or station connections, 4) benefit assessment district, 5) incentive agreements, 6) cost-sharing agreements, 7) joint use of facilities, 8) capital or service provision, and 9) development-concession leases." The Report found that "four conditions are necessary for TJD: a healthy local real estate market, an entrepreneurial public agency, coordination across agencies, and the recognition that the benefits of TOD extend beyond generating revenues."

The Report surveys the statutory and regulatory frameworks for TOD. It found that "the programs fall into three basic types: those that either encourage or require planning or zoning for TOD and joint development, those that provide funding for TOD-related infrastructure or housing, and those that provide basic legal authority to transit agencies to engage in TOD/joint development activities." The Report also expores market demand, case law, and case studies.

The Report concludes that "TOD/TJD, successful projects do not happen on their own, or just because government has invested public money into transit and other infrastructure. TOD and joint development projects succeed, most fundamentally, because there is a market for those types of development." In addition to supportive market conditions, "structures of both public and private law" are crucial for success. Suggested laws and programs include:

Transit agency authority to engage in TOD and joint development.
Direction to local government to plan and regulate for TOD and joint development.
Federal involvement in TOD and joint development.
TOD and joint development as part of local and regional visioning processes.
TOD planning and incentive grant programs.
Infrastructure investment programs that support or prioritize TOD.
Infrastructure concurrency or adequate public facilities requirements.
Funding programs that cover construction costs or provide incentives for the location of housing and other development in TOD areas.

The Report can be downloaded at http://onlinepubs.trb.org/onlinepubs/tcrp/tcrp_lrd_36.pdf.

To read more about transportation issues, visit Transportation.

Climate Change Policy's Other Half: Adaptation

noreply@blogger.com (Hawaii Land Use Law) — Sun, 09 Oct 2011 22:18:00 +0000

Pundits may disagree on the extent and scope of climate change, but the global climate is changing. See Joint science academies’ statement: Global response to climate change, available at http://www.nationalacademies.org/onpi/06072005.pdf.

Impacts will include sea level rise and more impactful but less frequent storm events, among other things. Adaptive planning today, will determine how resilient future communities will be to these impacts--particularly for costal communities like Hawaii.

According to the National Oceanic and Atmospheric Administration,
"The State of Hawaii has historically and is currently experiencing
moderate to severe drought, water scarcity and food insecurity."

Climate change adaptation planning is a crucial policy component for addressing climate change that is frequently overlooked by public and private decision-makers. For even if the US were to switch to "using sources that emit no particulates, like nuclear and natural gas, [this] will not make a major difference in averting near-term changes in the climate caused by carbon dioxide. [And,] . . . widespread use of renewables such as wind and solar won't help much, either." See Rober Bryce, Five Truths About Climate Change, Wall St. J., Oct. 6, 2011, available at http://online.wsj.com/article/SB10001424052970203388804576612620828387968.html.

Figure shows Waikiki/IPCC 23 inch sea level scenario.
Source: University of Hawaii, School of Ocean and Earth Science and Technology

PUC Denies HELCO's Biodiesel Supply Contract with Aina Koa Pono-Ka'u LLC

noreply@blogger.com (Hawaii Land Use Law) — Sun, 02 Oct 2011 00:10:00 +0000

On September 29, 2011, the Hawaii Public Utilities Commission (PUC) issued an order denying Hawaiian Electric Company's (HECO) application, to approve Hawaii Electric Light Company's (HELCO) Biodiesel Supply Contract with Aina Koa Pono-Ka'u LLC (AKP).

The proposal would have provided approximately sixteen million net US gallons annually of locally-produced biodiesel over twenty years. AKP's proposed Big Island project would have consisted of (1) the construction of a biorefinery for the production of biofuel; and (2) the planting, cultivation, and harvesting of the agricultural feedstock that will be refined in AKP's facility to produce the biofuel. The agricultural feedstock would have been grown on currently fallow sugar cane land previously owned by C. Brewer & Co. AKP planned to grow perennial grasses such as sterile napier grasses as well as eucalyptus for their feedstock.

A Variety of Napier Grass
Source: http://www.botany.hawaii.edu/faculty/carr/po.htm

According to HECO's application,

In sum, this Biodiesel Supply Contract is an integral part of the Companies' plans to, including without limitation, (1) continue its strategy to meet the [Renewable Portfolio Standards ("RPS")] requirements that fifteen percent (15%) of the Companies net electricity sales must come from renewable resources by December 31, 2015, twenty-five percent (25%) of [the Companies'] net electric sales come from renewable energy by December 31, 2020, and forty percent (40%) of [the Companies'] net electric sales come from renewable energy by December 31, 2030, (2) further help create energy independence and energy security, (3) use locally grown feedstock for biofuel produced in Hawai'i to help meet the RPS requirement and support the State's goal of diversifying Hawai'i's economy by encouraging the development of local agriculture, (4) reinforce Hawai'i as a showcase for renewable energy, and (5) help preserve Hawai'i's green landscape for future generations.

In denying HECO's application, the PUC found and concluded that the "contract price for the AKP-produced biofuel is excessive, not cost-effective, and thus, is unreasonable and inconsistent with the public interest." The PUC noted that "from a real world, bill-paying perspective, the HECO Companies seek the commission's approval to consistently charge affected ratepayers a premium for HELCO's purchase and use of AKP-produced biofuel under the terms of the twenty-year contract," and that approving the contract would, "displace or curtail existing cheaper renewable alternatives."

A copy of the Decision and Order can be downloaded at http://dms.puc.hawaii.gov/dms/DocumentViewer?pid=A1001001A11I29B53024D28344.

October NRS Speakers' Series: From Agriculture to Fish and Wildlife, Still Protecting Hawaii

noreply@blogger.com (Hawaii Land Use Law) — Mon, 26 Sep 2011 02:29:00 +0000

On Tuesday, October 4, 2011, the Natural Resources Section (NRS) will hold its monthly brown bag lunch meeting from 12:00 to 1:00 pm at the HSBA conference room.

NRS will host Domingo Cravalho, Jr, an Invasive Species Biologist with the U.S. Fish and Wildlife Service (USFWS)-Ecological Services, Pacific Islands Fish and Wildlife Office in Honolulu, Hawaii. Mr. Cravalho’s presentation is entitled, “From Agriculture to Fish and Wildlife, Still Protecting Hawaii.”

As an Invasive Species Biologist with the USFWS, Mr. Cravalho’s roles and responsibilities include a focus on brown treesnake issues as well as other invasive species efforts including biosecurity and quarantine in the State of Hawaii, the U.S. Territories of Guam and American Samoa, and the Commonwealth of the Northern Mariana Islands, with future expanded roles throughout other areas in the Pacific region. He previously worked for the State of Hawaii Department of Agriculture and retired as the Inspection and Compliance Section Chief with the Plant Quarantine Branch in November 2010. With over 30 years with the State, his former duties included lead inspector in the enforcement of violations into plant and non-domestic animal quarantine laws, assisted with the development and implementation of the Hawaii Biosecurity Program, ensured that proper assessment protocols were followed for the entry of restricted plants, animals and microorganisms, developed program policies and procedures for implementation, drafted proposed quarantine regulations for rulemaking, and worked with the horticultural and agricultural industries in Hawaii to maintain quarantine protection. He was born and raised in Hawaii and graduated in 1977 with a Bachelor of Science degree in General Agriculture from the University of Hawaii at Manoa.

Non-NRS members welcome on a space available basis.

Evolving the Way We Think about Transportation

noreply@blogger.com (Hawaii Land Use Law) — Fri, 16 Sep 2011 07:52:00 +0000

Article: Tom Downs, Demographics as Destiny, citiwire.net, Sept. 3, 2011, available at http://citiwire.net/post/2912.

Summary: Mr. Downs discusses the impact of changing demographics (Baby Boomers and Gen. X and Y) on suburbia. He suggests that "walking, biking and transit are about to become the next wave of transportation to shape our urban areas," which requires us to evolve our thinking about transportation:

It ultimately comes down to how we think about the use of the public right of way. Most successful regions start with mapping the way people are walking, biking and using transit in the same way we used to count cars: Look at the flow and the demand. Plan sidewalks with walking in mind. Repair the sidewalks that are falling apart. (It is actually pretty cheap to do.) And how about transit that allows riders to track buses and trains in real time on their cell phones? How about bike accessible transit? How about signal coordination for buses? How about setting a goal for the percent of commuters who bike to work? Most planners say that their weather is not conducive to biking, but the second highest percentage of commuters who bike to work is in Minneapolis (winter) 3.4 percent. Portland, Oregon (rain) is, of course, first with 4.5 percent.

Can Housing Alone Pull Us Out of the Recession?

noreply@blogger.com (Hawaii Land Use Law) — Thu, 15 Sep 2011 07:44:00 +0000

Article: Penelope Lemov, The Trouble with Housing, Governing, Sept. 15, 2011, available at http://www.governing.com/topics/finance/trouble-with-housing.html.

Summary: The author of the article interviewed Doug Duncan, the chief economist for Fannie Mae; David Merriman, an economics professor and associate director of the Institute of Government Public Affairs at the University of Illinois at Chicago; and Tracy Turner, economics professor at Kansas State University.

Here is the gist of their responses:

Economists have long held that housing is the industry that typically leads the nation out of recession
Industry forecasts still predict housing will continue, for the foreseeable future, to be a drag on the economy
In the U.S., there are only 60,000 completed new homes available for sale -- the lowest number since World War II
The housing market is particularly hard on laid off (or in the case of Hawaii, payroll reduced) government employees who work in public schools, fire departments and police
Because housing values are low, people and businesses are conservative about spending and reluctant to invest or expand
This is the largest housing bust since the Great Depression
For every $1 decline in house value, a homeowner spends 6 cents less in the community, which takes a toll on the sales tax and on general economic activity
Mr. Merriman says, "a recovery in housing is key to an economic recovery," but Ms. Turner concludes, "I wouldn't rely on housing to lead us out of this recession."

Former Division of Aquatic Resources Administrator to discuss "The things that keep me awake at night: Hawaii's looming aquatic resource challenges"

noreply@blogger.com (Hawaii Land Use Law) — Tue, 30 Aug 2011 17:36:00 +0000

On Tuesday, September 6, 2011, the Natural Resources Section (NRS) will hold its monthly brown bag lunch meeting from 12:00 to 1:00 pm at the HSBA conference room.

NRS will host Dr. Dan Polhemus, formerly the Administrator for the Department of Land and Natural Resources Division of Aquatic Resources (DAR), and currently the Coastal Conservation Program Manager for the Pacific Islands Office of the U.S. Fish and Wildlife Service. Dr. Polhemus will reflect on his time as DAR Administrator, and will present: "The things that keep me awake at night: Hawaii's looming aquatic resource challenges."

Aquatic Resources is charged with managing freshwater and marine resources, including 410,000 acres of coral reef. More than 80 percent of the coral reefs located within the United States are found in Hawaii. Its three main program areas include: commercial fisheries management; the protection of native and indigenous aquatic species and their habitats; and providing facilities and opportunities for recreational fishing.

Dr. Polhemus received his B.S. (1980) in Entomology from Colorado State University and Ph.D. (1984) in Biology from the University of Utah. Since 1983, he has conducted research on aquatic ecosystems in countries throughout the Pacific region, including Indonesia, Australia, East Timor, Papua New Guinea, the Solomon Islands, Fiji, and French Polynesia. He has received particular recognition for his work on the evolution and conservation of native Hawaiian damselflies. After working as a consultant to the Smithsonian Institution on an ecosystem modeling project in the Everglades, he joined the staff of the Bishop Museum in 1990, where he served as manager of externally-funded biological science programs, with a strong emphasis on Hawaiian limnology. In 1996 he accepted a research position with the Smithsonian Institution, where he worked for 10 years, including a term as Chairman of the Department of Entomology. Dr. Polhemus has published more than 130 peer-reviewed articles in scientific books and journals, and has been the recipient of more than 25 research grant and contract awards totaling over $4 million. In the course of his research he has described and named over 400 new species, including 63 from Hawaii.

Non-NRS members welcome on a space available basis.

NEPA Cumulative Analysis Spread Out through NEPA Document OK, To a Degree

noreply@blogger.com (Hawaii Land Use Law) — Mon, 22 Aug 2011 00:04:00 +0000

Center for Environmental Law v. US Bureau of Reclamation, No. 10-35646, 9th Cir., Aug. 19, 2011, reminds National Environmental Policy Act (NEPA) preparers of the importance of keeping a good record and drafting organized environmental review documents, in addition to taking a “hard look” and genuinely scrutinizing the environmental consequences of a proposed action.

In Center for Environmental Law, the 9th Circuit Court of Appeals considered a NEPA challenge by environmental groups to a proposed incremental drawdown of water from Lake Roosevelt in eastern Washington.

Lake Roosevelt National Recreation Area

Lake Roosevelt in eastern Washington state serves a variety of purposes, including irrigation, navigation, flood control, power generation, recreation, and fish management.

According to the Court, Plaintiffs' most significant challenge on appeal was Reclamation's cumulative effects analysis in the environmental assessment (EA). The Court characterized this claim as form over substance, as follows:

The record includes extensive evidence that [Reclamation] considered the relevant prior . . . actions and took the requisite hard look before approving the drawdown project. Although this evidence is not presented in the cumulative effects section of the EA, it would impermissibly elevate form over substance to hold that Reclamation must replicate its entire analysis under the heading of cumulative effects.

While the Court agreed with Plaintiffs' argument that "the portion of the EA exclusively devoted to cumulative effects is conclusory and unenlightening," Reclamation's analysis was sufficient when "reading the EA as a whole."

In addition to upholding Reclamation's cumulative effects analysis, the Court also upheld its indirect effects and alternatives analysis. In short, the Court opined as follows:

Indirect Effects. "Agencies need not account for potential growth effects that might be caused by a project if the project is exclusively intended to serve a much more limited need." In this case, "the causal tie between the project and growth is significantly . . . attenuated" with regard to Plaintiffs' claim that the project would cause additional future draw downs. The Court found it significant that "[t]he use of the expanded capacity remains both firmly in the control of Reclamation and is subject to review in a future EA or EIS." Consequently, any environmental effects from additional diversions were not, in the Court's opinion, indirect effects of the current drawdown project.

Alternatives Analysis. Reclamation’s EA discusses two alternatives—the proposed drawdown and a no action alternative. Plaintiffs' challenged the selection of alternatives as "overly constrained." The Court opined that it has "previously recognized, there is no "numerical floor on alternatives to be considered." In addition, the Court noted prior case law where it previously held that “the absence of a more thorough discussion in [an] EIS of alternatives that were discussed in and rejected as a result of prior state studies does not violate NEPA." Consequently, the Court held that Reclamation's alternatives analysis complied with NEPA. In reaching this conclusion, the Court cited Native Ecosys. Council v. Dombeck, 304 F.3d 886, 897 (9th Cir. 2002), which held that an EA that discussed only the agency’s preferred alternative and a no-action alternative satisfied NEPA. Finally, the Court noted that Reclamation was not required to "consider the alternatives [Plaintiffs] prefer[ed]."

Although Reclamation's NEPA compliance was upheld, it is important to heed the Court's cautionary note, "[we do not] suggest that agency discussion of impacts can be so diffuse, scattered, or opaque that a court must play Humpty Dumpty to put the pieces together in a coherent fashion."

For more on NEPA and environmental assessment issues see, Environmental Law.

Honolulu Rail Transit Project Challenged in Federal Court -- Answer and Reply

noreply@blogger.com (Hawaii Land Use Law) — Mon, 15 Aug 2011 17:19:00 +0000

Case Name: Honolulutraffic.com et al. v. Federal Transit Administration et al.

Case Number: 1:2011cv00307

Court: Hawaii District Court

Presiding Judge: A. Wallace Tashima

Rail Route Map from www.honolulutransit.org

Plaintiffs: The Plaintiffs are Honolulutraffic.com; Cliff Slater; Benjamin J. Cayetano; Walter Heen; Hawaii’s Thousand Friends; The Small Business Hawaii Entrepreneurial Education Foundation; Randall W. Roth; and Dr. Michael Uechi.

Defendants: The named Defendants are the Federal Transit Administration (“FTA”); Leslie Rogers, in his official capacity as FTA Regional Administrator; Peter M. Rogoff, in his official capacity as FTA Administrator; US Department of Transportation; Ray LaHood, in his official capacity as Secretary of Transportation; The City and County of Honolulu; Wayne Yoshioka, in his official capacity as Director of the City and County of Honolulu Department of Transportation (this is an error by Plaintiffs—it should be Department of Transportation Services).

Complaint: Nicholas C. Yost, the California attorney representing the Plaintiffs, filed the complaint on May 12 , 2011, in Hawaii's federal district court challenging the Honolulu Rail Transit Project. Plaintiffs list the following counts in their complaint:

Count 1: Defining the Purpose and Need so Narrowly as to Preclude Consideration of All Reasonable Alternatives (NEPA)
Count 2: Failure to Consider all Reasonable Alternatives (NEPA)
Count 3: Failure Properly to Analyze the Environmental Consequences of Alternatives (NEPA)
Count 4: Improper Segmentation (NEPA)
Count 5: Failure to Identify and Evaluate Use of Native Hawaiian Burials and Traditional Cultural Properties (Section 4(f))
Count 6: Arbitrary and Capricious Evaluation of the Project’s Use of Section 4(f) Resources (Section 4(f))
Count 7: Improper Project Approval (Section 4(f))
Count 8: Failure to Account for Effects on Historic Properties (NHPA)

Plaintiffs are asking the court to issue an injunction to stop the project and attorneys’ fees.

Answer: The FTA filed its answer to the complaint on August 12, 2011. The complaint is the usual kind of “kitchen sink” approach used in environmental impact statement challenges to transportation projects. Consequently, the FTA’s answer is a standard format generally used in these cases—admissions, denials, affirmative defenses.

Next Steps: The other Defendants should be filling a reply at some point soon. All parties should be aware that these kinds of cases seldom go to trial. Whether the facts, as determined by the court, support Plaintiffs’ allegations will be more thoroughly briefed by the parties in summary judgment briefs. That’s when the case becomes interesting.

Update 08/16/2011: Civil Beat reports that City defendants filed their answer in September.

Visit Honolulu Rail Transit Project for more on this project.

Office of Planning Seeks Input on Greenways and Trails Report to Legislature

noreply@blogger.com (Hawaii Land Use Law) — Mon, 15 Aug 2011 02:29:00 +0000

If you're interested in or have used greenway and trail related amenities in Hawaii, please take some time to fill out the following survey:

ACT 233 (2011) REPORT ON HAWAII GREENWAYS AND TRAILS PLANNING — SURVEY at http://goo.gl/smhkv.

The purpose of this survey is to seek stakeholder involvement as the Office of Planning generates a report to the State of Hawaii Legislature regarding the establishment of a statewide greenways and trails plan, pursuant to Act 233 (2011). For more information, please visit http://goo.gl/6VwYc.

This survey will close on Monday, October 31, 2011.

Map of Waihee Ridge Trail
Na Ala Hele Trail and Access System

Hawaii Land Use Law and Policy Goes Mobile

noreply@blogger.com (Hawaii Land Use Law) — Wed, 03 Aug 2011 05:20:00 +0000

You can now view our blog on your mobile device using our mobile-optimized version.

Simply enter hilanduse.blogspot.com in your mobile browser or scan the following:

Enjoy!

Columbia Law School Holds Island Nations Climate Change Conference

noreply@blogger.com (Hawaii Land Use Law) — Sat, 28 May 2011 07:44:00 +0000

On May 23, 2011, the Columbia Law School Center for Climate Change Law held a conference entitled, "Threatened Island Nations: Legal Implications of a Changing Climate."

Topics discussed included: statehood and statelessness, resettlement and migration, international and diplomatic options, legal remedies, and adaptation and domestic options. Papers, research, and other information from the conference can be found at www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations.

The entire conference was recorded and is online at www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations/livestream.

National Ocean Council Holds Public Listening Sessions in Hawaii

noreply@blogger.com (Hawaii Land Use Law) — Fri, 27 May 2011 17:58:00 +0000

The National Ocean Council will hold a public listening session in the Pacific Islands Region on June 16, 2011, to solicit input to develop the strategic action plans that will implement the National Ocean Policy.

The event will be held at the Neal Blaisdell Center in Honolulu from 1:00 - 4:00 pm. Hawaii Satellite locations will be held at the locations below.

Maui Community College (Ka’a’ike 103), 310 Ka'ahumanu Ave, Kahului, HI 96732-1617, June 16, 1:00-4:00 pm
Kauai Community College (LRC 121), 3-1901 Kaumuali´i Highway, Lihue, HI 96766, June 16, 1:00-4:00 pm
UH-Hilo (LRC 344), 200 W. Kawili St., Hilo, HI 96720-4091, June 16, 1:00-4:00 pm

The public is encouraged to attend and provide comments at all locations.

National Coastal and Marine Spatial Planning Workshop

noreply@blogger.com (Hawaii Land Use Law) — Thu, 26 May 2011 05:24:00 +0000

Last year, I wrote about the Final Recommendations of the Interagency Ocean Policy Task Force that President Obama adopted by Executive Order on July 19, 2010.

The Final Recommendations included the creation of a Policy Coordination Framework and Implementation Strategy. Under the Framework, the United States is subdivided into nine regional planning areas. Hawaii is part of the Pacific Islands Region, which includes Guam, the Commonwealth of the Northern Mariana
Islands, and American Samoa. The Implementation Strategy identifies priority objectives that our Nation will pursue to address pressing challenges facing the ocean, our coasts, and the Great Lakes. One of those nine strategies is Coastal and Marine Spatial Planning (CMSP) to implement comprehensive, integrated, ecosystem based coastal and marine spatial planning and management in the United States. Each regional planning area is tasked with developing a CMSP for its region.

The National Ocean Council (NOC) will hold a National CMSP Workshop in Washington, DC, on June 21-23. The first day of the Workshop will be a dedicated public and stakeholder session. This public session will take place on Tuesday, June 21, 2011, from 9:00 am to 5:30 pm, in the Yates Auditorium at the U.S. Department of the Interior, located at 1849 C Street, NW Washington, DC. For those who cannot attend the session in person or if interest exceeds capacity, it will also be available to the public through a live webcast on June 21, 2011 at www.doi.gov/live.

For more about this initiative, visit the NOC website at www.whitehouse.gov/administration/eop/oceans.

June NRS Meeting: OHA's Public Policy Team to Discuss Legislative Updates

noreply@blogger.com (Hawaii Land Use Law) — Wed, 25 May 2011 03:14:00 +0000

On Tuesday, June 7, 2011, the Natural Resources Section (NRS) of the Hawaii State Bar Association (HSBA) will hold its monthly brown bag lunch meeting from 12:00 to 1:00 p.m. at the HSBA conference room.

NRS will host guest speaker Sterling Wong, Senior Public Policy Advocate of the Office of Hawaiian Affairs, who will present: "Protecting Native Hawaiian resources at the 2011 Legislative Session," in addition to providing commentary on other natural/cultural resource bills introduced during the session. Joining Mr. Wong will be Jeff Kent and Jocelyn Doane of the OHA Public Policy Team.

Non-NRS members welcome on a space available basis.

An Informal Poll on Sea Level Rise

noreply@blogger.com (Hawaii Land Use Law) — Sat, 21 May 2011 06:33:00 +0000

According the U.S. Environmental Protection Agency, sea level is rising along most of the U.S. coast, and around the world. In the last century, sea level rose 5 to 6 inches more than the global average along the Mid-Atlantic and Gulf Coasts, because coastal lands there are subsiding. Land within a few feet above the tides could be inundated by rising sea level. According to some researchers, sea level may exceed 3 feet above the 1990 level by the end of the 21st century. How will you respond?

NRS' to Host Panel on Land Trusts in Hawaii

noreply@blogger.com (Hawaii Land Use Law) — Tue, 26 Apr 2011 19:07:00 +0000

The Natural Resources Section of the Hawaii State Bar Association (HSBA) will host a panel of guest speakers who will present, “Introduction to Land Trusts in Hawaii," at its Tuesday, May 3, 2011 monthly brown bag lunch meeting from 12:00 to 1:00 p.m. at the HSBA conference room.

Panelists include:

Laura Hokunani Edmunds Kaakua is the Native Lands Field Representative for The Trust for Public Land (TPL). Before joining TPL, Laura was Program Coordinator for Envision Hawai'i, a non-profit that brings together and trains young public servants and social entrepreneurs in Hawaii. Prior to that, she worked for Judge Greg Nakamura in the Hilo circuit court, Earthjustice in Honolulu, and the Office of Hawaiian Affairs in the Native Rights, Land and Culture division. Laura is a graduate of the University of Hawaii’s William S. Richardson School of Law, where she obtained an Environmental Law Certificate, and Boston College, where she majored in political science and communications.
Dr. Dale Bonar earned his PhD in Marine Science at UH, after which he spent 16 years as a Professor of Zoology and Research Scientist at the Center of Marine Biotechnology, University of Maryland. Returning to the west coast he founded Aquatic Environmental Sciences, a consulting company for marine and freshwater coastal issues. Board service with a local Land Trust resulted in taking over directorship of the Northwest Program of the National Land Trust Alliance. In this position he worked with Land Trusts from Wyoming to Alaska, helping them grow and professionalize. He returned to Maui in 2002 to become Executive Director of the Maui Coastal Land Trust (now the statewide Hawaiian Islands Land Trust) and serves as chair of the Natural Areas Reserve System and the Legacy Land Conservation Commission. Hawaiian Islands Land Trust now protects over 17,000 acres of conservation lands in Hawaii.
John Henshaw is the Director of Land Protection and Conservation Partnerships at The Nature Conservancy (TNC). He earned a B.S. in forestry from Humboldt State University and a M.S. in forest engineering from Oregon State University. He began his Forest Service career in 1978 in California as a zone logging engineer for Sierra and Sequoia national forests. From there, John held several positions with the National Forest Foundation, the Forest Service, and the U.S. Department of Agriculture. His last position in the Forest Service was the Pacific Rim Forest Legacy Program Manager (2003-2009). Forest Legacy is a land conservation program in the State and Private Branch of the Agency that works to promote the long-term integrity of forestlands. John covered a large area in managing this program including Alaska, California, Hawaii, Oregon, Washington, and the Pacific Islands. In January of 2009, he retired from the US Forest Service with over 30 years experience. In February of 2009 he started a new career with the Nature Conservancy as the Director of Conservation and was responsible for all of the conservation work of TNC in Hawaii. In August 2010 he moved into his current job as the Director of Land Protection and Conservation Partnership, focusing on a major land acquisition program for TNC Hawaii and representing TNC Hawaii in several State-wide conservation partnerships.
Doug Cole was raised on the North Shore of Oahu where he attended Sunset Beach Elementary School and Kahuku High School. He received his bachelor’s degree in History from the University of California at San Diego in 2000 and his law degree from the William S. Richardson School of Law at UH Manoa in May 2010. Doug has served as the Executive Director of the North Shore Community Land Trust since January 2010. He has been involved with numerous North Shore community organizations including the Sunset Beach Community Association and the North Shore Neighborhood Board. Doug was also a founding board member of the Oahu Land Trust and helped with the collaboration that led to the recent formation of the Hawaiian Islands Land Trust.

[Updated: 4/24/2011]

Is Your Food Secure?

noreply@blogger.com (Hawaii Land Use Law) — Sun, 10 Apr 2011 23:30:00 +0000

This blog entry pulls together information on food security policy.

Domestically, the U.S. Department of Agriculture (USDA) measures U.S. household food security, which it defines as follows:

Food security for a household means access by all members at all times to enough food for an active, healthy life. Food security includes at a minimum: The ready availability of nutritionally adequate and safe foods[; and] Assured ability to acquire acceptable foods in socially acceptable ways (that is, without resorting to emergency food supplies, scavenging, stealing, or other coping strategies).

Conversely, "food insecurity" is defined as "limited or uncertain availability of nutritionally adequate and safe foods or limited or uncertain ability to acquire acceptable foods in socially acceptable ways."

According to the USDA, 85.3 percent (100.8 million) of U.S. households were food secure throughout 2009--essentially unchanged from 85.4 percent in 2008. On average, between 2007 and 2009, 13.5 percent of U.S. households and 11.4 percent of Hawaii households were food insecure.

The President has also made food security part of his international policy. In his May 2010, National Security Strategy, the President wrote,

Promoting Food Security: The United States is working with partners around the world to advance a food security initiative that combats hunger and builds the capacity of countries to feed their people. Instead of simply providing aid for developing countries, we are focusing on new methods and technologies for agricultural development. This is consistent with an approach in which aid is not an end in itself—the purpose of our foreign assistance will be to create the conditions where it is no longer needed.

Through the President’s initiative, Feed the Future, the President has pledged $3.5 billion to help poor countries fight hunger by investing in agricultural development solving global hunger and food security.

Ways of getting at the problem can take different forms. Food security in a post-9/11 era connotes other dangers to our food supply, and some have made that connection. According to the National Association of State Departments of Agriculture (NASDA) website, "[s]ince the September 11, 2001 terrorist attacks, we are more keenly aware of the need to protect the integrity and safety of our agriculture and food infrastructure." The new threat is "[t]he prospect of an intentional, or terrorist, attack on our food and agriculture industry raises grave concerns that present challenges for producers and policy makers alike."

The USDA's focus on the perceived problem of terrorism on the US food supply is focused on the efficacy of traceability systems. Traceability systems track the flow of food products through the supply chain to manage issues like bio-terrorism, country-of-origin labeling, Mad Cow disease, and genetically engineered foods. According to the USDA, policymakers in many countries have begun weighing the usefulness of mandatory traceability. The jury is still out on how to best implement tracing, but a 2004 USDA brochure recommended the following:

Government may also consider mandating traceability to increase food safety. However, the already widespread voluntary use of traceability complicates the application of a centralized system. Mandatory systems that fail to allow for variation are likely to impose unnecessary costs on firms that are already operating efficient traceability systems.

The response to food security issues has also taken on the color of climate change policy. Climate change, in particular sea level rise, could decimate agricultural lands within sea level rise boundaries. Changes in weather patterns may also impact growing seasons and types of agricultural activities. In a 2001 USDA policy paper, the author wrote, "[g]lobal warming is likely to reduce agricultural production in the Tropics, where many developing countries are located."

Solving domestic and international food security is complex and research is ongoing. In the meantime, sustainability, urban gardens, and other related "local" farming movements are making a comeback. This reoccurring movement had its heyday during the 1960's and 1970's--e.g., People's Park. By having food grown and produced close to consumers, the food supply chain is shortened. This is arguably more secure, since traceability is less complicated. In addition, a shorter supply chain might reduce dependence on fossil fuels. Dependence on fossil fuels could be further reduced by encouraging intrastate use of alternative fuels (depending on policy framework ) for farming equipment, transportation, and processing.

Food security is difficult to resolve. Domestically, the federal government, through the USDA, has several successful programs to ameliorate the problem, and many non-profits like food banks try to fill in the gaps. Hawaii has tried to address this problem when the state legislature created the Food Security Task Force; however, Task Force recommendations were not adopted. The Task Force recommended the following in their 2002 Food Security Task Force Report: (1) Create state food policy and objectives; (2) Create a Food Security Council; and (3) Provide $192,000 a year to fund Council operations.

Professor George Kent from the University of Hawaii summed up the issue best when he wrote,

The challenge is not to feed people, but to see to it that they live in conditions in which they can provide for themselves. Paradoxically, you don’t solve the hunger problem by feeding people. The task is not simply to establish more feeding programs, but to design a Hawaii in which all able-bodied people are able to take care of themselves. Regardless of whether we draw on federal resources or charitable giving or local farmer’s markets, the state government that should take the responsibility to assure that no one in the state goes hungry.

To read more about agricultural issues, see Agriculture.

County of Kauai Important Agricultural Lands Study

noreply@blogger.com (Hawaii Land Use Law) — Thu, 07 Apr 2011 16:54:00 +0000

In 2008, the University of Hawaii Department of Urban and Regional Planning (DURP) completed a pilot study for the State Land Use Commission on the designation of Important Agricultural Lands (IAL) using the framework from Act 183, SLH 2005.

Fulfilling the legislative mandate in Act 183, the County of Kauai subsequently approved funding to contract with DURP to identify IAL county‐wide. That study can be found here at County of Kauai Important Agricultural Lands Study.

The policy supporting Act 183 is codified at HRS § 205-41, as follows:

Declaration of policy. It is declared that the people of Hawaii have a substantial interest in the health and sustainability of agriculture as an industry in the State. There is a compelling state interest in conserving the State's agricultural land resource base and assuring the long-term availability of agricultural lands for agricultural use to achieve the purposes of:(1) Conserving and protecting agricultural lands;(2) Promoting diversified agriculture;(3) Increasing agricultural self-sufficiency; and(4) Assuring the availability of agriculturally suitable lands,pursuant to article XI, section 3, of the Hawaii state constitution.

Under HRS § 205-47, each county is directed by the legislature to identify and map potential important agricultural lands within its jurisdiction based on the standards and criteria laid out in Act 183, which is also codified at HRS § 205-41, et seq.

NRS Hosts Discussion on, "Accelerating Hawaii's Clean Energy Future"

noreply@blogger.com (Hawaii Land Use Law) — Fri, 25 Mar 2011 19:42:00 +0000

On Tuesday, April 5, 2011, the Natural Resources Section (NRS) will hold its monthly brown bag lunch meeting from 12:00 to 1:00pm at the HSBA conference room (located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street).

NRS will host guest speaker Jeffrey Mikulina, Executive Director of the Blue Planet Foundation, who will present: "Accelerating Hawaii's Clean Energy Future."

Prior to working with the Foundation, Mr. Mikulina served for ten years as the director of the Sierra Club, Hawaii Chapter. His accomplishments in environmental advocacy include legislation that sets a binding cap on Hawaii’s greenhouse gas emissions, requires that all new homes use solar water heaters, requires returnable deposits on all beverage containers, provides incentives for renewable energy use, establishes curbside recycling on O‘ahu and increases the funding of natural resources through tourism taxes. Mr. Mikulina earned a Master’s of Science degree in engineering from the University of Illinois at Urbana-Champaign studying decision theory.

Mr. Mikulina's discussion will explore some of the underlying drivers to accelerating Hawaii's transition to a clean energy future, including policies in play at the state legislature and Public Utilities Commission, and he will share some of the programs that Blue Planet is launching to help people make smart energy choices.

"What is left of the State's environmental programs?"

noreply@blogger.com (Hawaii Land Use Law) — Tue, 01 Feb 2011 01:22:00 +0000

On Tuesday, February 1, 2011, the Natural Resources Section (NRS) of the Hawaii State Bar Association (HSBA) will host guest speaker Gary Gill, Deputy Director of the Environmental Health Administration, Hawaii Department of Health, who will present: "What is left of the State's environmental programs?"

Mr. Gill has had a lengthy career in government and community service. At the age of 26, Mr. Gill was elected to the Honolulu City Council and served two years. Mr. Gill was then appointed as the Director of the Office of Environmental Quality Control and as Deputy Director of Health for the Environment during the administration of Governor Ben Cayetano.

Mr. Gill subsequently transitioned to the non-profit community as Development Director for the Sierra Club, Program Manager for Kokua Kalihi Valley and Executive Director of Waimea Valley on the North Shore of Oahu. Since 2009, Mr. Gill has served as the Program Director for the Blue Planet Foundation of Hawaii where he has developed a CFL bulb exchange program and the Hawaii Home Energy Makeover TV show, among other projects. Recently, Governor Neil Abercrombie asked Mr. Gill to once again lead the environmental protection programs for the State of Hawaii.

NRS holds its monthly brown bag lunch meeting from 12:00 to 1:00 p.m. at the HSBA conference room. Guests are welcome but priority will be given to paid members.

9th Circuit Loosens up its 3rd Party Intervention Standard in NEPA Litigation

noreply@blogger.com (Hawaii Land Use Law) — Thu, 20 Jan 2011 04:13:00 +0000

The "federal defendant" rule was developed through case law in the U.S. Court of Appeals for the 9th Circuit. The rule categorically precludes private parties and state and local governments from intervening of right as defendants on the merits of NEPA actions. The rationale for this rule is that such parties lack a "significantly protectable" interest warranting intervention of right under Rule 24(a)(2), because NEPA is a procedural statute that binds only the federal government.

However, the 9th Circuit recently abandoned the "federal defendant" rule in Wilderness Society v. U.S. Forest Service, No. 09-35200, slip op. (9th Cir. Jan. 14, 2011). Wilderness Society arises out of the U.S. Forest Service's adoption of a travel plan that designated 1,196 miles of roads and trails for use by motorized vehicles in the Minidoka Ranger District of Idaho's Sawtooth National Forest. The central issue for the 9th Circuit was whether the lower court should have applied the "federal defendant" rule to deny intervention to three groups representing recreation interests.

Diamondfield Jack Campground
Minidoka Ranger District

The 9th Circuit abandoned the "federal defendant" rule, reversed the lower court for applying it, and opined as follows:

When considering motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether putative intervenors demonstrate the "significantly protectable" interest necessary for intervention of right in a NEPA case, the operative inquiry should be whether the "interest is protectable under some law" and whether "there is a relationship between the legally protected interest and the claims at issue." A putative intervenor will generally demonstrate a sufficient interest for intervention of right in a NEPA action, as in all cases, if "it will suffer a practical impairment of its interests as a result of the pending litigation."

(Citations omitted.) Among other things, the court based its decision on the facts that the "federal defendant" rule was (1) at odds with the normal standards it applies in all other intervention of right cases in cases asserting violations of environmental statutes and (2) out of step with all but one of its sister circuits.

This opinion opens up the door for potential third party defendants in NEPA cases who would have previously been denied intervention under the "federal defendant" rule.

Visit the Environmental Law archives for more on this topic.

Honolulu Rail Transit Project Takes a Huge Step Toward Fruition

noreply@blogger.com (Hawaii Land Use Law) — Wed, 19 Jan 2011 07:02:00 +0000

On January 18, 2011, the Federal Transit Administration (FTA) issued a record of decision (ROD) for the Honolulu Rail Transit Project, a major milestone for a transportation project.

The ROD is a concise public record of FTA's decision. It identifies the project and mitigation necessary to avoid or minimize environmental harm. Issuance of the ROD allows the Project to move forward with final design and construction.

According to a City press release, "Today marks an important milestone in Oahu’s quest to become a more transit-friendly island,” said FTA Administrator Peter Rogoff. “With the completion of the National Environmental Policy Act process, the City of Honolulu has met all of the laws and regulations of the environmental review and we look forward to the day when Honolulu’s citizens can ride the rails in comfort, breathe cleaner air, and avoid getting stuck in time-wasting traffic jams.”

Visit the Transportation archives for more on this topic.