Hawaii Land Use Law and Policy

Annual Planning Law Update at the Hawaii Congress of Planning Officials

noreply@blogger.com (Hawaii Land Use Law and Policy) — Thu, 22 Oct 2020 09:30:00 +0000

RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAW from Jesse Souki

Penn Central Presentation at 2020 Hawaii State Bar Association Virtual Convention

noreply@blogger.com (Hawaii Land Use Law and Policy) — Wed, 21 Oct 2020 16:12:00 +0000

On Friday, October 16, 2020, I joined a panel at the 2020 Hawaii State Bar Association Virtual Convention on Regulatory Takings After Knick. I was surrounded by takings luminaries, but I held my own with an introduction to the Penn Central Test. Here it is.

Penn Central Regulatory Takings from Jesse Souki

Hawaii Supreme Court Defines "Potable" and "Brackish" Water -- Resort Allowed to Water its Golf Course

noreply@blogger.com (Hawaii Land Use Law and Policy) — Wed, 20 May 2020 07:21:00 +0000

The Hawaii Supreme Court has been creating new real estate and land use law over recent months, e.g., HawaiiUSA Fed. Credit Union v. Monalim, No. SCWC-16-0000807 (Apr. 30, 2020) (changing foreclosure math; concurring and dissenting opinion by Nakayama, J. in which Recktenwald, C.J., joins); and Haynes v. Haas, No. SCWC-16-0000570 (May 5, 2020) (expanding public nuisance damage awards).

The latest is Lana’ians for Sensible Growth v. Land Use Comm’n, No. SCOT-17-0000526 (Haw. May 15, 2020) (concurring in the judgment and dissenting by Recktenwald, C.J., in which Nakayama, J., joins). In this case, the central issue is what the state land use commission ("LUC") meant by its 1991 condition of approval in a district boundary amendment issued by the LUC to Lanai Resorts, LLC, which allowed it to build a golf course.

Specifically, Condition 10 provides:

10. [The Resort] shall not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use, and shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent) for golf course irrigation requirements.

Several challenges by Lana’ians for Sensible Growth ("LSG") ensued on various aspects of Condition 10. The question before the court in the instant case is whether the LUC erred in its follow up 2017 order concluding that the Resort did not violate Condition 10 based on the quality of water the Resort was using.

The court disagreed with how the LUC defined “potable” and “brackish” water. The court, at length, opined on what it considered the plain meaning of those terms. Ultimately, the court concluded that its definition of these terms resulted in the same conclusion the LUC arrived at in its 2017 order. In other words: No harm, no foul.

The minority disagreed with the court's departure from the record:

The LUC’s conclusions are supported by the record and correctly apply the law. The Resort’s use of brackish water from Wells 1 and 9 did not violate Condition 10, nor does such a reading of the Condition violate the public trust doctrine.

[ . . . ]

The majority, however, defines potable in reference to “county water quality standards.” This reading ignores the terms of the Condition, for “county water quality standards” appears nowhere in it. Because the majority creates a standard contrary to the text of the Condition, deprives the Resort of fair warning of its ongoing obligations under the LUC’s Order, and provides little useful guidance to the Resort for future water use, I respectfully dissent.

In the end, the same conclusion is reached by the majority and minority: The LUC’s June 1, 2017 LUC order is affirmed.

The challenge going forward for drafters is that courts may go beyond the four corners of an administrative order to find meaning even though, as the minority points out in this case, the terms at issue are defined in the order.

Hawaii Supreme Court Changes Longtime Method of Calculating Foreclosure Deficiency Judgments

noreply@blogger.com (Hawaii Land Use Law and Policy) — Mon, 04 May 2020 05:47:00 +0000

In a 3-2 decision, decided on April 30, 2020, in Hawaiiusa Federal Credit Union v. Monalim, the Hawaii Supreme Court took the opportunity to rewrite foreclosure law from the bench.

The Concurring and Dissenting Opinion (Nakayama and Recktenwald) summarizes the issue:

The Majority adopts a new rule that will change Hawai‘i’s traditional method of calculating deficiency judgments. Under the new rule, mortgagors are entitled to a hearing to determine the “fair market value” of a property at the time of a foreclosure sale. The circuit court will be required to calculate the amount of the deficiency judgment based on a new formula in which the greater of the “fair market value” or the court-confirmed sale price will be deducted from the outstanding debt.

The Dissent opines that the facts of this case do not support the adoption of the Majority’s new rule:

First, I believe that by rationalizing the adoption of this new method based on the possibility that the deficiency amount in other foreclosure cases could be inequitable, the Majority oversteps the authority entrusted to this court to determine, in each case, if the law was applied correctly to a specific set of facts. The Majority should exercise judicial self-restraint in this case and leave the decision of whether or not to enact this new rule to the Legislature. Second, the new rule will require the court to select from the fair market value estimations of competing experts. The additional time and expense of this process will unnecessarily burden both the parties to foreclosure actions and the courts. Finally, the new rule will not, as the Majority avers, protect both parties to the mortgage.

Noting that the “vast majority of jurisdictions which have chosen to adopt the new rule have done so by legislative action,” the Dissent concludes:

Given courts’ relative lack of expertise on these policy considerations, the new rule should not be adopted through judicial activism. It should be left to the Legislature to determine whether enacting the new rule will truly serve the State’s best interests.

In practical terms, this new judicial rule will be good for debtors, bad for lenders, and bad for new Hawaii homeowners. First, compared to other states, Hawaii residents seek larger mortgages for purchasing homes in Hawaii’s high-priced market. As lenders apply more stringent requirements in response to the cost of recovering defaults based on the above decision, scrutiny on loan applicants will increase making it more difficult for borrowers to qualify. Second, in addition to the Dissent's points, one might also question whether this change by the court was required now, rather than by the legislature, since Hawaii ranks in the middle of pack (2019) when it comes to the rate of foreclosures among states. Third, this new rule will not improve Hawaii's record among states as the longest average time to foreclose. Under the new rule, the question of fair market value becomes a fact issue that will take more of the court's time and increase costs and fees to resolve.

How will the U.S. Supreme Court's Expansion of the Federal Clean Water Act Impact Hawai'i?

noreply@blogger.com (Hawaii Land Use Law and Policy) — Fri, 24 Apr 2020 05:38:00 +0000

In the County of Maui, Hawaii v. Hawaii Wildlife Fund, decided by the U.S. Supreme Court on April 23, 2020, the Court weighed in on a long-simmering issue: What test should apply to determine whether a permit is required under the federal Clean Water Act (CWA)?

Essentially, "[t]he Clean Water Act forbids the 'addition' of any pollutant from a 'point source' to 'navigable waters' without the appropriate permit from the Environmental Protection Agency (EPA)."

In this case, "the County of Maui, operates a wastewater reclamation facility on the island of Maui, Hawaii. The facility collects sewage from the surrounding area, partially treats it, and pumps the treated water through four wells hundreds of feet underground. This effluent, amounting to about 4 million gallons each day, then travels a further half mile or so, through groundwater, to the ocean."

Maui argued that the CWA permit requirement does not apply, because "at least one nonpoint source (e.g., unconfined rainwater runoff or groundwater) lies between the point source and the navigable water." The Court disagreed. Justice Bryer, writing for the majority, opined that this logic would "exclude a pipe that hangs out over the water and adds pollutants to the air, through which the pollutants fall to navigable waters. The absurdity of such an interpretation is obvious enough." Congress did not intend such a loophole when passing the CWA.

After a riveting discussion on Congressional intent and the meaning of words like "to" and "from," the Court held that "a permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge."  However, Justice Bryer admits that the functional equivalent test is far from perfect:

The difficulty with this approach, we recognize, is that it does not, on its own, clearly explain how to deal with middle instances. But there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language. Consider, for example, just some of the factors that may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case.

At the same time, courts can provide guidance through decisions in individual cases. The Circuits have tried to do so, often using general language somewhat similar to the language we have used. And the traditional common-law method, making decisions that provide examples that in turn lead to ever more refined principles, is sometimes useful, even in an era of statutes.

The underlying statutory objectives also provide guidance. Decisions should not create serious risks either of undermining state regulation of groundwater or of creating loopholes that undermine the statute's basic federal regulatory objectives.

EPA, too, can provide administrative guidance (within statutory boundaries) in numerous ways, including through, for example, grants of individual permits, promulgation of general permits, or the development of general rules. Indeed, over the years, EPA and the States have often considered the Act's application to discharges through groundwater.

Both Maui and the Government object that to subject discharges to navigable waters through groundwater to the statute's permitting requirements, as our interpretation will sometimes do, would vastly expand the scope of the statute, perhaps requiring permits for each of the 650,000 wells like petitioner's or for each of the over 20 million septic systems used in many Americans' homes.

In other words, the crystal ball foretells a lot of litigation in the future.

In the near-term, Maui can expect to face significant compliance costs. Take for example the City and County of Honolulu consent decree imposed by the EPA that includes a little over $5 billion in required sewer improvements and fines. The Maui County Council will face a tough road ahead. Imposing increased sewer fees and real property taxes will be hard on residents given the current state of Maui's economy, which lost the last of its agriculture industry a few years ago and is suffering the double whammy of COVID-19 and a recession impacting tourism.

In addition, all injection wells are now suspect under the new rule, including planned and existing residential subdivisions that use septic systems and leach fields. This will impact housing costs in a state with a high cost of living and a critical shortage of housing.

It will be interesting to see how our state and counties adjust to the new, new reality.

2019 HCPO Law Presentation

noreply@blogger.com (Hawaii Land Use Law and Policy) — Fri, 13 Sep 2019 03:37:00 +0000

Due Process Right to a "Clean and Healthful Environment" from Jesse Souki

Hawaii's New EIS Rules become Effective in August 2019, Here's What You Need to Know

noreply@blogger.com (Hawaii Land Use Law and Policy) — Thu, 13 Jun 2019 20:58:00 +0000

The Office of Environmental Quality Control ("OEQC") and State Environmental Council ("Council") submitted the final proposed rules to the Governor’s Office in April 2019. Governor Ige announced that he plans to sign the rules on July 30, 2019, and the rules will take effect on August 9, 2019.

The new rules will repeal the existing Hawai‘i Administrative Rules (HAR) Chapter 11-200, and adopt a new chapter, HAR Chapter 11-200.1. OEQC provides a Rationale for Final Proposed HAR Chapter 11-200.1.

Here are some things to consider when the new rules take effect:

These rules do not amend or change the requirements of HRS chapter 343.
The following terms have not changed:

EA: environmental assessment
EIS: environmental impact statement
EISPN: environmental impact statement preparation notice
FONSI: finding of no significant impact
NEPA: National Environmental Policy Act

Save the trees.

Materials must be submitted electronically to the OEQC for publication in The Environmental Notice
Agencies must provide Exemption Notices electronically
No longer required to mail individual responses to commenters—it will be posted online as part of the HEPA document
Some EA and EIS documents must be made available in paper, for example:

EA to the library in the area most affected by the action
Draft and final EA filed with the State Library’s Hawaii Documents Center

Clearer guidance for programmatic documents.

A programmatic (as distinguished from a project-based) environmental review should be "enough to make an informed choice among program-level alternatives and broad mitigation strategies"

Supplemental documents.

To determine whether an agency is eligible to prepare a supplemental EIS, apply the following criteria:

Whether the proposed action was a component of, or is substantially similar to, an action that received an exemption, FONSI, or an accepted EIS;
Whether the proposed action is anticipated to have direct, indirect, and cumulative effects similar to those analyzed in a prior exemption, final EA, or accepted EIS; and
In the case of a final EA or an accepted EIS, whether the proposed action was analyzed within the range of alternatives.
If the answer is “yes” or “no”, the agency may publish the determination with the OEQC for publication in the periodic bulletin.

New exemptions process.

Agencies would have seven years to reorganize and update their exemption lists to comply with the rules

Climate change added to significance criteria.

Adaptation. Agencies must consider whether a proposed action is likely to have a substantial adverse effect on or is likely to suffer damage by being located in a sensitive area such as the sea level rise exposure area; SLR maps should be included in EAs and EISs to demonstrate the potential vulnerability
Greenhouse gas reduction. Agencies must consider whether a proposed project will emit substantial greenhouse gases at any stage or may emit substantial greenhouse gases as an indirect or cumulative impact.

No EISPN required, but...

May skip an EISPN and prepare an EIS when there is clear potential for a significant impact
BUT, a public scoping meeting is required as well as incorporation of public feedback from the scoping meeting into the draft EIS

Public comment periods may be extended with notice.

Thirty days for draft EA and EISPN documents
Forty-five days for draft EIS documents
Comments received between publication periods do not have legal standing because they are not submitted during a legal window

Public comments—less paper.

A written response to be physically mailed to each commenter is no longer required.
Agencies and applicants may respond to comments based on the “grouping” model allowed under NEPA
List commenters whose comments are being addressed under each topic heading or section
All comment letters containing substantive comments must be appended to the final EIS or EA
Form letters may be responded to in a single response appended to the HEPA document if not using the grouping approach
Form letters that have additional substantive points be appended in full to the document, and receive a response

EIS scoping meeting are required on each island affected by a proposed action, but...

No need to transcribe and respond
Oral comments may be recorded and a summary provided in the draft EIS

NEPA-HEPA joint documents.

A single document and single comment period that satisfies both federal and state requirements can be used to satisfy both NEPA and HEPA
The agency must make an independent determination, pursuant to chapter 343, HRS, of the necessary level of environmental review

Do the new rules apply to my proposed action?

For EAs, if the draft EA was published by the office prior to the adoption of this chapter and has not received a determination within a period of five years from the implementation of this chapter, then the proposing agency or applicant must comply with the requirements of this chapter
For EISs, if the EISPN was published by the office prior to the adoption of this chapter and the final EIS has not been accepted within five years from the implementation of this chapter, then the proposing agency or applicant must comply with the requirements of this chapter
Exemption lists that have received concurrence under chapter 11-200 may be used for a period of seven years after the adoption of this chapter

U.S. Court of Appeals 9th Cir. Reviews King County Metro Ad Policy: Controversial Terrorism Ad Gets a Pass

noreply@blogger.com (Hawaii Land Use Law and Policy) — Wed, 07 Nov 2018 07:40:00 +0000

In Am. Freedom Def. Initiative v. King County, 904 F.3d 1126, 1129 (9th Cir. 2018), the court reviews King County Metro's denial of a request to post a controversial ad on a King County Metro (hereinafter, "County" or "Metro") bus.

The court followed past decisions holding that a transit advertising program is a nonpublic forum. Consequently, the higher First Amendment freedom of expression standard of strict scrutiny does not apply; instead, Metro's policies must be reasonable and viewpoint neutral. On its face, the court held that two of the three prohibited content policies by Metro were valid on its face. However, Metro's prohibited category related to demeaning or disparaging content was invalid, and Metro's application of the harmful or disruptive content category was improper.

Ad denied by Metro is similar to this ad by U.S. State Department. Source: SeattlePI

Procedural

A three-judge 9th Cir. panel reviewed an appeal from the U.S. Dist. Court for the Western District of Washington.

The panel affirmed in part and reversed in part.

Facts

Metro accepts ads for public display unless the ads contain certain categories of prohibited content, including false statements, disparaging material, and content that may disrupt the transit system.

Metro determined that Plaintiffs' ad concerning global terrorism contained all three types of prohibited content under Metro's policy: (1) False or Misleading, (2) Demeaning or Disparaging, and (3) Harmful or Disruptive to Transit System. Plaintiffs then submitted a revised, factually accurate ad, which the County rejected under the remaining two categories.

The falsity clause in Metro's transit advertising policy states that Metro will reject any ad that is:

False or Misleading. Any material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy.

The panel concluded that "[t]he falsity standard meets constitutional scrutiny, both facially and as applied."

The disparagement clause in Metro's transit advertising policy states that Metro will reject any ad that is:

Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.

The panel concluded that the "disparagement standard discriminates, on its face, on the basis of viewpoint."

The disruption clause in Metro's transit advertising policy states that Metro will reject any ad that is:

Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.

The panel held that "the disruption clause, like the earlier one, survives facial scrutiny."

Holdings

(1) Metro permissibly rejected the factually inaccurate ad because the First Amendment does not require Metro to display patently false content in a nonpublic forum.

(2) Metro's rejection of the revised ad does not withstand scrutiny. Applying Matal v. Tam, 137 S. Ct. 1744 (2017), Metro's disparagement standard discriminates, on its face, on the basis of viewpoint.

(3) The disruption standard is facially valid but, on this record, Metro unreasonably applied the standard to Plaintiffs' ad. The panel disagreed with Metro that "it is reasonably foreseeable that Plaintiffs' ad will harm the transit system," because the "ads may perpetuate harmful stereotypes and may upset riders which, in turn, may cause a decrease in ridership." The panel based its conclusion primarily on the fact that "Metro approved a very similar ad—the State Department's own 'Faces of Global Terrorism' ad—which actually ran for a period of nearly three weeks. . . , but Metro's transit system did not experience any harm, disruption, or interference."

Administrative Law 101

noreply@blogger.com (Hawaii Land Use Law and Policy) — Tue, 20 Mar 2018 21:55:00 +0000

Elusive Affordable Housing Policy

noreply@blogger.com (Hawaii Land Use Law and Policy) — Wed, 29 Nov 2017 07:51:00 +0000

My current work at the Hawaii Community Development Authority has me thinking a lot about affordable housing.

Halekauwila Place, an affordable rental project in Kakaʻako.

Among other things, the development guidance policy for the Kakaʻako Community Development District requires, “integration both vertically and horizontally of residents of varying incomes, ages, and family groups; and an increased supply of housing for residents of low- or moderate-income may be required as a condition of redevelopment in residential use.”

While 34 percent of units built in Kakaʻako since 1987 were built as reserved, workforce, or low income housing, there is still great demand in all income categories. This problem is not new in Hawaii, and various policies, programs, and initiatives have been proposed by the various counties and the state to address the issue. However, the solution is elusive.

I recently came across two articles that give some insight into the challenge of creating effective affordable housing policies:

Joe Cortright, The end of the housing supply debate (maybe), City Observatory, Aug. 11, 2017, at http://cityobservatory.org/the-end-of-the-housing-supply-debate-maybe/.
Dan Bertolet, Cruel Musical Chairs (Or Why Is Rent So High?), Sightline Institute, Oct. 31, 2017, at http://www.sightline.org/2017/10/31/video-cruel-musical-chairs-why-is-rent-so-high/.

Cortright’s piece explores the rhetoric of the affordable housing debate. The rhetoric has Balkanized stakeholders into unbending pluralities; however, there is little data to support any one side of the issue. Bertolet’s piece is a creative illustration of the “more supply will solve the problem” philosophy, which challenges the “you can’t build your way out of the problem” philosophy. Both lack solid data to support either conclusion, but both sound reasonable.

Would a trusted, independent think-tank in Hawaii help? It would collect, model, and interpret housing data; propose policies, tools, and programs; and get us closer to the objective we all can agree on: Housing choices for everyone in every income group.

Climate Change Office on City's Budget Agenda

noreply@blogger.com (Hawaii Land Use Law and Policy) — Fri, 07 Apr 2017 05:50:00 +0000

The City & County of Honolulu is considering the Mayor’s proposed budget.

The Mayor’s budget includes staff and funding for the Office of Climate Change, Sustainability, and Resiliency that was created by voters in the recent City Charter amendment process.

The agenda for next Tuesday’s Special Budget Committee meeting has been posted. Click on Bill 25 (agenda item #5) to view the budget request. The agenda includes information on how to submit testimony. I used the electronic option. Here is what I sent:

Dear Chair Manahan and Committee Members:

Please support the budget request of the Mayor regarding the staffing and funding for the Office of Climate Change, Sustainability, and Resiliency.

As you know, the voters of Oahu overwhelmingly approved amending the City Charter to create the Office. Serving as the initial chair for the Charter Commission, one of the first substantive issues for consideration brought before the Commission was the impact of climate change on the people of Oahu.

Experts on the matter from the University of Hawaii showed how Hawaii will be uniquely impacted by climate change. The issue is not only sea-level rise, which is easy enough to observe for people who grew up in the islands, but also the following:

Recorded warming air temperature in Hawaii has quadrupled in the last 40 years,
Hawaii has seen an overall decline in rainfall in the last 30 years,
Sea surface temperatures have warmed, and
Global ocean acidity has increased by 30 percent.

These local impacts are stressing the ability of our environment to protect us from storm events, to feed us, and to keep us healthy. It is killing our reefs and eroding our beaches, which support our number one economic engine, tourism. The future is bleak, unless we take actions to understand the threat, address our weaknesses and strengths, and begin to strategically invest in making our communities resilient in a post-climate change future.

The issue of climate change is multidimensional, and will require a coordinated effort across agencies, programs, and branches of government. The Office of Climate Change, Sustainability, and Resiliency is intended to serve that purpose and should be given the resources it needs to accomplish this important task. If done right, the work of the Office will undoubtedly benefit current and future generations.

Thank you for your consideration and your difficult task of preparing our City’s budget.

Mahalo,
Jesse K. Souki

Hawaii Appeals Court Sets Boundary on the Applicability of State EIS Law

noreply@blogger.com (Hawaii Land Use Law and Policy) — Sun, 11 Sep 2016 19:51:00 +0000

The trend in Hawaii's appellate courts has been to expand the scope and applicability of Hawaii's environmental laws. The courts have rarely deferred to agency expertise and discretion.

In Umberger v. Department of Land and Natural Resources ("DLNR"), the Hawaii Intermediate Court of Appeals defined the outer-limits of Hawaii's environmental impact statement law, commonly referred to as the Hawaii Environmental Policy Act ("HEPA").

Yellow Tangs, A Commonly Harvested Aquarium Fish

The case involved aquarium fish permits that allow permittees to collect fish for aquarium purposes from Hawaii's waters. The Court defined the question before it as follows:

[W]hether a particular Hawaii statute, HEPA, is intended to apply so that each applicant for an aquarium fish permit must, at a minimum, prepare an EA [environmental assessment]—as well as engage in the related process of consultation, information gathering, and public review and comment—and DLNR must, with each application, undertake a HEPA review prior to issuing an aquarium fish permit.

The Court disagreed, and held as follows:

We conclude that to interpret "program or project" so sweepingly as to require individual aquarium fish permit applicants to undertake the EA process is not a "rational, sensible and practicable interpretation" of HEPA and would create an unreasonable, impractical, and absurd result. Accordingly, we hold that aquarium collection under an aquarium fish permit issued by DLNR pursuant to HRS § 188-31 is not an "applicant action" under HEPA.

Citations omitted.

Although not essential to its decision, the Court provided a rare statement of agency deference when it stated that, "There is no question that the DLNR shares Appellants' concerns about the health of Hawaii's reefs and its marine inhabitants and seeks to appropriately manage and administer the aquatic life and aquatic resources of the State in accordance with all applicable laws." The U.S. Supreme Court recognized that judicial deference to agency expertise is one of the most important principals in administrative law, due in part to an agency's intense familiarity with the history and purposes of the legislation at issue and their practical knowledge of what will best effectuate those purposes.

Read the entire opinion at https://scholar.google.com/scholar_case?case=9667698222799409226.

Happy 60th Birthday to the U.S. Interstate Highway System

noreply@blogger.com (Hawaii Land Use Law and Policy) — Fri, 01 Jul 2016 06:39:00 +0000

It’s an auspicious day: The U.S. Interstate Highway System turns 60 years old today.

As we reflect on the importance of President Eisenhower’s monumental public works program, it is apropos to consider why we are building a monumental transportation project for Hawaii, rail.

Here is a link to a report, “The Interstate Highway System turns 60: Challenges to Its Ability to Continue to Save Lives, Time and Money,” prepared by TRIP, a national transportation research group, http://www.tripnet.org/docs/Interstate_Highway_System_TRIP_Report_June_2016.pdf. It’s a survey of the opportunities and challenges of the interstate system, and Hawaii ranks high on the challenges side of the balance sheet:

Source: http://www.fhwa.dot.gov/interstate/finalmap.cfm

Hawaii is among the top states with the greatest share of their urban Interstate highways considered congested.
Hawaii is among the top ten states with the busiest urban Interstates.
Hawaii is number 1 among states with the greatest share of their Interstate highways with pavements in poor or mediocre condition.
Hawaii is among the top ten states with greatest share of urban interstates that experience congestion during peak hours.
Hawaii is among the top ten states with greatest daily travel per-lane-mile on urban interstates.

For the family sitting in traffic for hours every day commuting to work and school, these facts are meaningless. All they know is that a significant portion for their lives are lost sitting in a car.

The final EIS prepared for the Honolulu rail transit project--its purpose, need, and goals--help to address all of these issues. And, when you consider how rail will reshape development patterns by bringing far flung, sprawled communities within walking distance to work, school, home, and recreation through a mix of reliable, safe, and efficient transportation options, well, what else is there to say?

The path to great things is always paved with obstacles, but isn’t that true of anything worth doing? We need to stay the course.

To Build or Not to Build: Honolulu Rail Redux

noreply@blogger.com (Hawaii Land Use Law and Policy) — Tue, 28 Jun 2016 05:09:00 +0000

Once again, we are confronted with the question of whether to fully fund Oahu’s rail project. I can't help but draw comparisons with recent world events, like Brexit.

Whether one agrees with the outcome of the UK vote to leave the European Union (52% to 48%), a lesson can be learned about making decisions based on passions and populism. Many UK voters are only now considering the gravity of their vote. Some are even asking their government for a “do over,” because their vote was a “protest vote.” They didn’t mean it.

We aren't holding a referendum on rail, but the "in or out" question is just the same. Should we fully fund the Oahu’s rail project, from start to finish, all 20-miles, 21-stations (and at some point in the near future, extensions to UH Manoa, West Kapolei, and Waikiki)? This sounds like a simple question; however, like the question before UK voters, it's far more complicated. When considering the ultimate question on rail, one should consider the purpose of the project, why Oahu needs it, and whether it will resolve the issue Oahu is trying to address in the least impactful way.

The construction and completion of Honolulu’s rail system as planned will have far reaching economic, social, and environmental impacts and benefits. The overarching purpose of the project is to provide high-capacity rapid transit in the highly congested east-west transportation corridor between Kapolei and UH Mānoa. The project is needed to improve mobility for travelers who face increasingly severe traffic congestion, improve transportation system reliability, provide accessibility to new development in support of adopted City land use plans, and improve transportation equity.

Rail will serve nearly 70 percent of Oahu's population and more than 80 percent of working taxpayers. With the opportunity to create new communities and rejuvenate existing communities along the alignment, comes endless possibilities to ensure that housing options go vertical and not sprawl out horizontally, preserve the Island’s limited space, implement walkable communities, and reduce the cost of transportation for Hawaii’s families. These are the kinds of communities that surveys show both millennials and our aging population want to live in, work in, and retire in.

Project ridership in 2030 is expected to be about 119,600 weekday passenger trips. Rail will eliminate an estimated 40,000 car trips from our congested streets and highways. Each four-car train can carry more than 800 passengers, the equivalent of more than ten buses. Because it operates on its own elevated fixed rail, it will take just 12 minutes to get from the airport to the downtown station.

Is the fixed, elevated guideway and technology the best option? The debate continues. All we can do in a civilized democracy is establish a good process. The rail decision process began before 2005 and included elected officials, experts, and the public. Many options were considered and the majority ruled. Subsequent judicial challenges of the environmental review process resulted in an outcome that ensured the avoidance, minimization, or mitigation of significant environmental impacts.

After more than a decade of planning, debate, technical reports, litigation, false starts, and finally construction, we find ourselves with a set of trains, several miles of guideway, and a nearly complete operations center. Is it time to stop or only build a part of the project? I hope not. Honolulu's rail project is the democratically arrived at best option to address our quality of life.

As we consider what we do next, all factors must be taken into consideration. As we learned from our friends in the UK, there are no do overs.

The Seminar Group Presents: Transit-Oriented Development in Hawaii

noreply@blogger.com (Hawaii Land Use Law and Policy) — Tue, 03 Nov 2015 19:05:00 +0000

One of the largest public investments in the history of the City and County of Honolulu, the Honolulu Rail Transit project will fundamentally change how we live and do business.

Transit-oriented development (TOD) will increase property values near transit stations by providing the opportunity to take advantage of frequent transit service. The project will allow an unprecedented opportunity to direct growth to Honolulu’s Urban Core (the most populated region of the state) away from agricultural, open space, and rural areas; stimulate urban renewal projects near the 21 proposed rail stations along the approximately 20-mile route; support cost-efficient, consolidated infrastructure; and increase housing affordability by reducing one of the highest costs in a Hawaii family’s budget: transportation.

This seminar will provide key insights and analysis from experts and thought leaders on policy, planning, law, and real estate market issues related to TOD.

TOD City Zoning, Permits, and Related Approval Processes from Jesse Souki

The full agenda and list of presentations and presenters can be found at http://www.theseminargroup.net/seminardetl.aspx?id=15.trAhi.

Ensuring Small Businesses Thrive During Rail Construction

noreply@blogger.com (Hawaii Land Use Law and Policy) — Fri, 28 Aug 2015 08:08:00 +0000

A report by PolicyLink (a national research and action institute advancing economic and social equity), outlines successful strategies that have been used to help businesses survive and thrive in Seattle, Washington, and St. Paul, Minnesota.

Best practices identified in the report, include:

The right type of financial assistance must be available to meet business’s needs.
Outreach to businesses should begin well in advance of construction.
Business technical assistance is vital.
Communication is Key - Projects can have unpredictable timelines.
Strong advocacy and organizing by multiple partners (e.g., foundations, non-profits, government, private sector, universities, etc.).
In both Seattle and St. Paul, the cities played an important leadership role.

Seattle, Washington

In Seattle, a $50 million Community Development Fund ("CFD") was created. The CFD was largely funded by the City of Seattle, which contributed $35 million of Community Development Block Grant ("CDBG") funding over seven years and $7.8 million from the City's general fund. Qualified small businesses could apply for CFD funds for such things as relocation costs; business interruptions payments; and low-interest loans for advances related to operations, equipment, and tenant improvements.

After construction of the affected rail line in 2009, the retention rate was 85 percent for all businesses, and 90 percent for businesses that had received assistance.

St. Paul, Minnesota

The City of St. Paul created a $4 million Ready for Rail Business Support Fund through a Joint Powers Agreement between the Met Council and the Housing and Redevelopment Authority of the City of St. Paul. The loan fund was originally seeded with a small grant by the Central Corridor Funders’ Collaborative, The Met Council, and the City of St. Paul. The fund is administered by two local nonprofits.

In addition to the loan program, 40 business and community leaders came together to form the Business Resources Collaborative ("BRP") to support small businesses through the construction process. In partnership with community development organizations, they hired “small business consultants” to do extensive outreach to the businesses along the corridor. Assistance provided, to about 95 percent of qualifying businesses, included support with accounting, taxes, and marketing. About $1.2 million was spent on direct technical assistance primarily funded by the Central Corridor Funders’ Collaborative, St. Paul Foundation, and Bigelow Foundation.

Due in large part to the work of BRP and its collaborators, of the 1,144 businesses located along the corridor, 84 closed or relocated, and 84 new businesses opened. Nearly two-thirds of businesses expected their sales would increase, post construction.

For more, read the full report, Business Impact Mitigations for Transit Projects, PolicyLink, November 2013.

Land Use and Planning Law Can be Beautiful--Literally

noreply@blogger.com (Hawaii Land Use Law and Policy) — Wed, 12 Aug 2015 02:58:00 +0000

A word cloud is an image composed of words used in a particular text, in which the size of each word indicates its frequency. The word clouds below show the 50 most frequently used words in selected sections of the City and County of Honolulu's ordinances related to land use.

Waikiki Special District
ROH Sections 21-9.80 through 21-9.80-9.

TOD Special Districts
ROH Sections 21-9.100 through 21-9.100-4

Interim planned development – Transit (IPD-T) Projects
ROH Section 21-9.100-5

9th Circuit Court: Conservation Efforts Outweigh Economic Impacts

noreply@blogger.com (Hawaii Land Use Law and Policy) — Fri, 10 Jul 2015 19:26:00 +0000

The appeal in Building Industry Association v. U.S. Department of Commerce arose under the Endangered Species Act (“ESA”) and the Administrative Procedure Act (“APA”). It required the 9th Circuit Court of Appeals to review the designation of critical habitat for a threatened species–the southern distinct population segment of green sturgeon (the “Southern DPS of green sturgeon”)–and the regulations implementing that designation.

Green Sturgeon

The context for this litigation is the impact of the designation on local property owners and on the residential construction industry in the Sacramento-San Joaquin Delta and within the Sacramento River basin of Northern California.

In 2001, the Center for Biological Diversity (“CBD”), along with two other organizations, petitioned National Marine Fisheries Service (“NMFS”) (NMFS is a service under NOAA in the Department of Commerce) to list the green sturgeon as “threatened” or “endangered” under the ESA, and to designate critical habitat. In 2005, NMFS published a proposed rule listing the Southern DPS as “threatened.” In 2010, NMFS designated approximately 11,421 square miles of marine habitat, 897 square miles of estuary habitat, and hundreds of additional miles of riverine habitat in Washington, Oregon and California as critical habitat.

Under the ESA, as soon as a species has been listed as either threatened or endangered, agencies are required to consider designating critical habitat. Critical habitat is defined as “the specific areas within the geographical area occupied by the species . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” Before designating any particular area as critical habitat, an agency must “tak[e] into consideration the economic impact, the impact on national security, and any other relevant impact,” of the designation. The agency “may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat” unless exclusion will result in the extinction of the species. (Citations omitted.)

Appellants’ arguments considered by the Court included the following:

When designating critical habitat for the Southern DPS of green sturgeon, NMFS failed to balance the conservation benefits of designation against the economic benefits of exclusion from designation.
NMFS’s decision not to exclude certain areas from critical habitat designation is subject to judicial review and NMFS abused its discretion in not excluding those areas.
As part of the designation process, NMFS was required to comply with the National Environmental Policy Act (“NEPA”).

The Court held in favor of NMFS as follows:

When considering the economic impact of its designation, NMFS complied with section 4(b)(2) of the ESA and was not required to follow the specific balancing-of-the-benefits methodology argued for by Appellants.
Section 4(b)(2) of the ESA establishes a discretionary process by which the agency may exclude areas from designation, but does not set standards for when areas must be excluded from designation. An agency’s discretionary decision not to exclude an area from designation is not subject to judicial review.
Appellants’ NEPA claim fails because NEPA does not apply to critical habitat designations. The court cited, inter alia, Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1501–08 (9th Cir. 1995) (explaining that critical habitat designations are not subject to NEPA because: (1) the ESA displaced the procedural requirements of NEPA with respect to critical habitat designation; (2) NEPA does not apply to actions that do not alter the physical environment; and (3) critical habitat designation serves the purposes of NEPA by protecting the environment from harm due to human impacts).

This opinion should give landowners heartburn and Congress a lot to think about regarding potential ESA amendments. The next step for the Appellants in this case is to request review by the U.S. Supreme Court.

California Supreme Court Upholds San Jose Inclusionary Zoning Policy

noreply@blogger.com (Hawaii Land Use Law and Policy) — Mon, 15 Jun 2015 19:49:00 +0000

In Cal. Bldg. Industry Assn. v. City of San Jose (opinion filed on June 15, 2015), the California Supreme Court upheld San Jose’s inclusionary housing ordinance that requires new residential developments to sell 15 percent of proposed new units at an affordable housing price.

In reaching its decision, the Court opined, “[T]he ordinance does not impose an ‘exaction’ on developers’ property under the takings clauses of the federal and California Constitutions.” In the Court’s opinion, this is not a case of an unconstitutional condition or exaction as asserted by California Building Industry Association (CBIA), but rather an “example of a municipality‘s permissible regulation of the use of land under its broad police power.” This constitutional “police power” analysis is significant in that it is far more difficult to overcome and removes a landowner's' right to just compensation for a government taking of private property.

The City of San Jose enacted an inclusionary housing ordinance that, among other features, requires all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price that is affordable to low or moderate income households. (See below for a description of the ordinance.) CBIA’s challenge rested primarily on the unconstitutional conditions doctrine, as applied to development exactions under the takings clauses (or, as they are sometimes denominated, the just compensation clauses) of the United States and California Constitutions.

The CBIA maintained that the ordinance was invalid on its face on the ground that the City, in enacting the ordinance, failed to provide a sufficient evidentiary basis to support its policy. The ordinance failed to demonstrate a reasonable relationship between any adverse public impacts or needs for additional subsidized housing units in the City caused by or reasonably attributed to the development of new residential developments. CBIA argued that the conditions imposed by the City's inclusionary housing ordinance would be valid only if the City produced evidence demonstrating that the requirements were reasonably related to the adverse impact on the City's affordable housing problem that was caused by or attributable to the proposed new developments that are subject to the ordinance’s requirements, and that the materials relied on by the City in enacting the ordinance did not demonstrate such a relationship.

The Court disagreed with CBIA and dismissed the takings based argument. The Court opined, “[T]he conditions imposed by the San Jose ordinance at issue here do not require a developer to pay a monetary fee [which may have been a takings issue] but rather place a limit on the way a developer may use its property.” The Court further opined, “[T]he conditions are intended not only to mitigate the effect that the covered development projects will have on the City's affordable housing problem but also to serve the distinct, but nonetheless constitutionally legitimate, purposes of (1) increasing the number of affordable housing units in the City in recognition of the insufficient number of existing affordable housing units in relation to the City's current and future needs, and (2) assuring that new affordable housing units that are constructed are distributed throughout the City as part of mixed-income developments in order to obtain the benefits that flow from economically diverse communities and avoid the problems that have historically been associated with isolated low income housing.”

As a result of this opinion, municipalities in California have far greater latitude for imposing inclusionary zoning requirements by ordinance on residential developers, so long as its legislative bodies can show a “reasonable relationship to the public welfare” that has “a reasonable basis in fact . . . to support the legislative determination.”

Summary of San Jose's Inclusionary Zoning Policy

Applies to all residential developments within the City that create 20 or more new, additional, or modified dwelling units
15 percent of the proposed on-site for-sale units in the development shall be made available at an affordable housing cost to households earning no more than 120 percent of the area median income for Santa Clara County adjusted for household size
The requirement increases to 20 percent of the total units in the residential development if (1) units are provided off-site, or (2) developer opts for in-lieu fees for equivalent units
Incentives include (1) density bonus, (2) reduction of parking spaces, (3) reduction in set-backs, and (4) financial subsidies and assistance from City in sale of affordable units
A developer may seek a waiver from these requirements by showing "no reasonable relationship between the impact of a proposed residential development [and the ordinance]"

The San Jose inclusionary housing policy is further discussed on the City's web site at https://www.sanjoseca.gov/index.aspx?NID=1305.

Would You Use Public Transit if You Could Save between $20,000 and $80,000 on Your Home?

noreply@blogger.com (Hawaii Land Use Law and Policy) — Wed, 20 May 2015 23:22:00 +0000

The cost to build a parking stall can range anywhere from $20,000 to $80,000 or more.

Progressive communities like the City of Seattle, San Francisco Bay Area, and Washington DC are looking beyond parking stalls and pursuing strategies toward promoting transportation, parking, and personal mobility efficiencies. For example, the City of Seattle does not require parking for new buildings located in downtown or transit-friendly areas, and it continues to investigate policies that allow it to grow and evolve in ways that are functional, economic, and livable.

In a recent report prepared for the Seattle City Council, the City's planning department and state DOT analyzed the City’s vehicle and bicycle parking requirements for residential uses. Their approach placed a preference on "lower costs to build housing rather than the storage of automobiles."

The report identified the following findings and best practices:

Take steps to aid housing affordability by limiting the financial impacts of parking on housing
Avoid requiring excess parking
Manage on‐street parking to reduce demand
Requirements for off‐street parking artificially support driving
Requiring more off‐street parking does not directly lead to less on‐street parking demand
Increasing access to and knowledge about transportation helps people choose from a variety of convenient and affordable options
Housing and transportation costs are the greatest burdens on household budgets
Equitable approaches that provide transportation options make a real difference for those who most need those choices
Use a combination of strategies

Puget Sound Bike Share

Recommendations included:

Tailor parking requirements for new development in areas with frequent transit service
Require a “residential transportation options program” that includes requirements for multifamily building owners to provide transit passes and other mobility options for residents of new buildings (actual costs of this type of program will be a small fraction of the cost of building new parking)
Adopt a map showing where parking is not required, providing more predictability for permit applicants, neighbors, and planning department staff
Remove code barriers to shared parking options, and address garage design to facilitate shared use parking; Consider code revisions to allow bike share and car share in‐lieu of required parking
Update bicycle parking code requirements to better address secure, comfortable, long‐term bicycle parking needs

The full report, "City of Seattle Parking Review: Report to Council PLUS Committee," April 13, 2015, is available at http://www.seattle.gov/dpd/cityplanning/2015parkingreport.pdf.

Is Solar Hawaii’s Energy Panacea?

noreply@blogger.com (Hawaii Land Use Law and Policy) — Fri, 08 May 2015 03:54:00 +0000

Today’s Pacific Business News reports, Group formed to seek a public acquisition of Hawaiian Electric Co.

The group calls itself “KULOLO” an acronym for “keep our utilities locally owned and locally operated.” The group is lead by Robert Harris of Sunrun, formerly the executive director of the Sierra Club Hawaii.

The only member of Kulolo identified on its website is The Alliance for Solar Choice (TASC). According to TASC's website:

The Alliance for Solar Choice (TASC) leads the rooftop solar advocacy across the country. Founded by the largest rooftop companies in the nation, TASC represents the vast majority of the market. Its members include: Demeter Power; Silevo; SolarCity; Solar Universe; Sunrun; Verengo; and ZEP Solar.

Kulolo’s plans are short on details. However, they do mention Kauai Island Utility Cooperative (KIUC) as a favorable model. KIUC is a not-for-profit generation, transmission, and distribution cooperative owned and controlled by its members. However, KIUC does not focus solely on solar energy. KIUC’s energy portfolio includes a growing percentage of hydropower, photovoltaic, bio-fuel, and biomass.

Kulolo’s proposal, if it includes Oahu, should take into account land use policies that evolved over several generations. Existing community and general plans direct growth away from agricultural lands and open space to the urban core. Part of Oahu’s future will include communities that build up rather than out. This means less rooftops for solar.

If Kulolo is successful, let us hope that the outcomes they pursue for the public are as sweet as their moniker.

28th Session of the Hawaii State Legislature Ends Today

noreply@blogger.com (Hawaii Land Use Law and Policy) — Thu, 07 May 2015 18:58:00 +0000

The 28th session of the Hawaii state legislature ends today, sine die.

Photo Source

But do not despair, the same cast—some in new roles—will be back next year for the Opening Day of the 2016 Session on January 20, 2016. Next year is an election year, so it is sure to be even more interesting at our people’s branch of government.

While the legislature officially ends its business for the year, the governor still has some work to do. According to the Legislative Reference Bureau, the governor has until June 29, 2015 (35th day after adjournment sine die), to give notice of his intent to veto any bills. The governor has until July 14, 2015 (45th day after adjournment sine die), to veto any bills. After July 14, 2015, any bills that he has not vetoed become law without his signature.

I will be writing about significant bills related to land use that passed this legislative session in the coming weeks. Stay tuned.

Land Use Cases to Watch: Hawaii Supreme Court

noreply@blogger.com (Hawaii Land Use Law and Policy) — Thu, 23 Apr 2015 02:30:00 +0000

Kilakila `O Haleakala v. Board of Land and Natural Resources, was heard by the Hawaii Supreme Court on Thursday, April 2, 2015. This appeal arises from BLNR’s granting of a conservation district use permit (“CDUP”) to the University of Hawaii (“UH”) on December 1, 2010. The CDUP allows the construction of the Advanced Technology Solar Telescope (“ATST”) project atop the summit of Haleakala on Maui.

Kilakila `O Haleakala and others challenge the CDUP on several grounds. In response, UH and BLNR argue that its findings (1) were not "clearly erroneous" (the standard of judicial review), and (2) complied with the CDUP criteria the board must consider. UH and BLNR ask the court to affirm the ICA and circuit court’s decisions upholding the CDUP.

Questions from the court primarily related to (1) connection between impacts and proposed mitigation to address those impacts, (2) potential impact of political pressure on due process, and (3) measuring cumulative impacts.

Surfrider Foundation v. Zoning Board of Appeals, City & County of Honolulu, was heard by the Hawaii Supreme Court on Thursday, February 19, 2015. This appeal arises from the City’s granting of a zoning variance from Revised Ordinances of Honolulu (“ROH”) § 21-9.80-4(g)(2), in 2010.

ROH § 21-9.80-4(g)(2), provides that “no structure shall be permitted” within 100 feet of the certified shoreline and that “[b]eyond the 100-foot line there shall be a building height setback of 1:1 (45 degrees) measured from the certified shoreline.” The City variance allows the structure to be taller and closer to the certified shoreline based on its assessment of variance factors under the City Charter.

Sierra Club v. Castle and Cooke Homes Hawaii, will be heard by the Hawaii Supreme Court on Thursday, May 21, 2015. This appeal arises from the State Land Use Commission’s (“LUC”) granting of a land use district boundary amendment to Castle and Cooke that would allow the Koa Ridge Makai and Waiawa commercial/residential developments. Sierra Club argues that the reclassification violated Article XI, Section 3 of the Hawaii State Constitution, which provides that the “State shall conserve and protect agricultural lands,” and that “[t]he legislature shall provide standards and criteria,” to implement this provision. They also argue that the Commission violated Hawaii Revised Statutes §§ 205-41 through -52, which implements said constitutional provision.

Panel on Clean Energy and Transportation: Land Use Entitlements

noreply@blogger.com (Hawaii Land Use Law and Policy) — Tue, 14 Apr 2015 01:34:00 +0000

I recently had the pleasure of joining Michael Formby, Director of the Department of Transportation Services at the City and County of Honolulu, and Harrison Rue, Community Building and TOD Administrator for the City to discuss challenges and opportunities for transitioning to cleaner fuels and provide updates on TOD in Hawaii. The Natural Resources Section of the Hawaii State Bar Association sponsored the panel.

My contribution focused on opportunities for TOD along the proposed 20-mile, 21-station route (and future extensions), with a focus on TOD entitlements required in the various jurisdictions along the route.

Below is a copy of my 5-minute presentation.

Clean Transportation Presentation to HSBA NRS

This presentation is based on past articles I wrote on TOD, which you can find at Transit-Oriented Development (TOD).

Mr. Rue's presentation provided an overview of the City's TOD vision and implementation strategies. His presentation can be found here:

TOD Honolulu

Is the Federal Government's Ambitious Proposal to Expand the Whale Sanctuary the Right Answer?

noreply@blogger.com (Hawaii Land Use Law and Policy) — Fri, 27 Mar 2015 20:12:00 +0000

There are many iconic images of Hawaii, and near the top of that list is the endangered Humpback whale breaching in Hawaii's waters during its seasonal migration.

Source: Pacific Whale Foundation

The Hawaiian Islands Humpback Whale National Marine Sanctuary, was created by Congress in 1992, and approved by Hawaii's governor. The purpose of the Sanctuary is to protect humpback whales in Hawaii. It is administered by the National Oceanic and Atmospheric Administration (NOAA), under the U.S. Department of Commerce. The Sanctuary currently encompasses 1,400 square miles, including the channel between the populated islands of Maui, Lanai, and Molokai.

The current Sanctuary model seems to be working. NOAA research finds that “Humpbacks are increasing in abundance in much of their range.” Even with its success, the Sanctuary remains relevant. As the population of whales increases, human-whale interactions increase.

NOAA is proposing an expansion of the Sanctuary. The proposal includes expanding the federal government’s regulatory oversight of uses and activities (e.g., fishing, energy, recreation, commerce, etc.) within the expanded Sanctuary boundaries. The proposal departs from the Sanctuary’s purpose of protecting humpback whales that seasonally migrate to Hawaii and expands to regulating all species and habitat within its boundaries.

This additional regulatory oversight would add to existing federal regulatory requirements such as the Marine Mammal Protection Act, Migratory Bird Treaty Act, Endangered Species Act, Magnuson–Stevens Fishery Conservation and Management Act, Clean Water Act, and Coastal Zone Management Act, just to name a few. The proposed expansion also contemplates including state waters, which are currently managed under existing local and state regulations administered by state agencies such as the Department of Land and Natural Resources, Office of Planning, and Department of Health.

Source: Hawaii Humpback Whale Sanctuary

Depending on the kind of activity proposed in Hawaii’s waters, additional regulation by the Bureau of Ocean Energy Management (BOEM) and the Federal Energy Regulatory Commission (FERC) might also come into play. Most all of these existing regulations require an environmental assessment, and in most cases, an environmental impact statement under the National Environmental Policy Act (NEPA) and the Hawaii Environmental Policy Act (HEPA).

On January 18, 2011, President Obama released Executive Order 13563, Improving Regulation and Regulatory Review. The “general principles” of the regulation sums up the policy best,

Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.

Is the Sanctuary proposal consistent with the President’s executive order? Some might argue that adding another layer of federal regulations over proposed ocean uses in Hawaii waters does not promote “economic growth, innovation, competitiveness, and job creation.”

Given the Sanctuary’s success and existing state and federal environmental regulations, does the Sanctuary’s expansive proposal apply the “least burdensome tools for achieving regulatory ends”? Section 4 of the President’s Executive Order, entitled “Flexible Approaches,” provides:

Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.

Besides the expanded jurisdiction and regulatory authority proposed, are there other "regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public"?

The Sanctuary’s proposal is in the last stages of the federal approval process. NOAA is accepting comments on its proposal. The deadline for public comments is June 19, 2015. Several public hearings will be scheduled in Hawaii starting on April 27, 2015. The full schedule is available at http://www.regulations.gov/index.jsp#!documentDetail;D=NOAA-NOS-2015-0028-0002.

Ultimately, any expansion into state waters must be approved by the governor.