28th Session of the Hawaii State Legislature Ends Today

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 Policy Priorities: Opening Day of the 28th Hawaii State Legislature, 2015

Yesterday kicked off the beginning of Hawaii’s 28^th legislative session.  Barring a special session, it will end on May 7, 2015, Sine Die (the length of a regular NFLseason).

The legislature prides itself on the number of bills it introduces and passes each year.  Aside from the many substantive bills introduced by each legislator, many bills are marked “introduced by request,” which ostensibly means the legislator introducing the bill does not necessarily support the bill.  Other bills are labeled “short form,” which means that any substantive matter can be inserted in the bill at some point in the legislative process so long as it has some relationship to the bill’s title.  This can amount to thousands of proposed bills and resolutions.

Many of these bills drop out of the process, are merged with other bills, or are significantly amended or completely replaced.  Things begin to gel as we get closer to May and around crossover in mid-February.  However, if you are tracking a certain bill and want to be sure it is crafted in a way that makes sense to your business; you will want to be involved throughout the process.

Yesterday’s Opening Day remarks by the Senate President and House Speaker give some insight on the priorities for each chamber.  The following is a summary of their land use related priorities.

Senate President Donna Mercado Kim opened her remarks on a nostalgic note and played Peter, Paul and Mary’s song, “Where have all the flowers gone?”  She also referenced the popular “Hawaii Calls” radio program that ran from 1935 through 1975.  She noted the issue of sea-level rise impacts on Hawaii’s beaches and the decline of “Hawaiian entertainment in Waikiki,” Koa, Ohia-Lehua, fish, and opii.  To address these issues, she noted the following actions:

• Providing “dedicated funding using existing TAT revenues for the maintenance and restoration of beaches across the state[.]”
• “Giving the counties more local control over land use classifications by eliminating the Land Use Commission and overlapping operations to make the permitting process more efficient[.]”
• The Senate expects “the Hawaii Public Housing Authority, the counties, and private sector to come up with viable solutions” to “the shortage of affordable housing[.]”

Over in the House, House Speaker Joseph Souki opened his remarks emphasizing the need for hard work and collaboration to address issues facing the people of Hawaii.  He noted Governor Ige’s call to work together and “bring as many people and ideas to the table as possible.”  The Speaker’s focus in the area of land use was as follows:

• Transit Oriented Development  should be used to “direct growth along our rail stations, encouraging commercial development around them and building affordable neighborhoods on nearby state lands.  Directing growth in this way will also protect open space and agriculture, as well as minimize times when we are forced to choose between growth and the environment.”

Opening day remarks can be found in full at http://www.capitol.hawaii.gov/speeches/2015opening.aspx, including remarks by Senate Minority Floor Leader Sam Slom and House Majority Leader Scott Saiki.

Land Use Law Update Presentation to the Hawaii State Congress of Planning Officials 2013

A survey of significant Hawaii land use and planning legislation, judicial opinions, and land use commission activities in 2013.  These materials supported a lecture on the impacts these developments in the law will have on project proponents, regulators, consultants, and the interested public.

Presentation to Hawaii State Bar Association's Natural Resources Section on Legislative Updates Related to Land Use and Planning Law

Measures that Passed the 27th Legislature and Will Affect Hawaii's Statewide Land Use and Planning System

Download slide-deck from SlideShare to view transitions.

Legislative Priorities: Selected Quotes from Today's Opening Day Speeches

Today was the opening day of the State of Hawaii, Twenty-Seventh Legislature 2013-2014.

There are probably better ways to gauge the priorities of a legislative body, but below is a bullet-point list of quotes from the new Senate President and Speaker of the House.

If I could summarize their speeches in a few words, the Senate President is focusing on fiscal constraint and small government and House Speaker is focusing on rebuilding government and public sector projects.  Both leaders support less Oahu-centric decision making and similar social programs.

The following text was pulled word-for-word from their entire speeches posted at the respective URLs below.  If text was added, it's in brackets.

Senate President Donna Mercado Kim (http://mauitvnews.com/blog/2013/01/16/new-senate-president-opens-27th-legislative-session)

• The last recession may have weakened our foundation, so now is the time for reassessment and reinforcement
• After several years of belt-tightening, we’re greeting this session with a rosier economic outlook
• Tourism deserves a special mention
• establishment of a museum/center of Hawaiian music and dance
• We should proceed with caution
• possible cutbacks in federal funding
• backlog of repair and maintenance needs for schools, parks, public housing, state buildings, and our infrastructure
• state-run early education program, a new prison, and more affordable housing, as well as proposals for more grants-in-aid and other public support
• NO new tax burdens thrust upon our citizens
• Reevaluating and reassessing what we have in place . . . to achieve our purposes more efficiently and effectively than we have been
• eliminate salary overpayments to state workers and abuses in overtime and sick leave
• accelerate fixing our schools, funding kupuna care, reducing the unfunded liability of the state pension system, and repairing our roads and aging infrastructure
• we mustn’t create or reinstitute public programs without a thorough examination of their long-term obligations
• do better in acting on the Auditor’s recommendations
• [address issues with the] HI-5 recycling program, the Public Land Development Corporation, airport procurement contracts, Charter Schools, certain tax credits
• those appointed as stewards of the public’s trust are responsible for the performance of the organizations they oversee and therefore must be held accountable
• food security, farmers need our assistance and commitment to preserve prime agricultural lands
• I am an advocate for county home-rule . . . making government less Oahu-centric

House Speaker Joseph Souki (http://www.mauinews.com/page/content.detail/id/568957/Speaker-Souki-s-prepared-remarks.html)

• rebuild what the recession took away
• Investment in projects and programs throughout the state
• strengthen economic development and job growth, to restore public services
• restore the safety net, put people back to work, and provide the best education, including early childhood education
• take care of people's health, take care of our kupuna, and make sure the state's health care system transitions into the new era of health care smoothly and without undue delay
• improve our roads, bridges, and transportation infrastructure
• clean energy that uses the best renewable energy resources, including our ocean and solar resources
• responsible stewards of Hawaii's natural resources and our native plants and animals
• increase farming opportunities on agricultural land and the market for locally-grown products
• support the tourism industry and promote the Hawaii product to the world
• enhance our revenue stream—a mix of strategies that will generate more state revenues
• rethink tax credits—film industry claims a tax credit
• look at rolling back the personal tax burden for people with lower incomes and the middle class

2012 Hawaii Land Use and Politics in Review

People involved in land use matters know the adage, "politics is local," applies doubly to land use matters. Here are some highlights from the year. For the unfamiliar, Hawaii democrats rule the roost, so unless indicated otherwise, all the electeds referenced are registered democrats.

In the past week there has been a tsunami of change in Hawaii politics. December 2012 will surely be looked back upon as a significant epoch in Hawaii's political history. A series of events were set into motion upon the passing of Hawaii's US Senator, Daniel K. Inouye, at the age of 88 on December 17, 2012. He served as Hawaii's senator since 1963 and is the second longest serving senator in Congress.

The US Senate vacancy was filled by the Hawaii Democratic Party and Governor Abercrombie with Brian Schatz, who was sworn in on December 27, 2012. Mr. Schatz is a Gen Xer who most recently served as Hawaii's Lieutenant Governor. He has a strong record of supporting environmental issues and climate change policies.

Mr. Schatz's appointment to the US Senate created a vacancy in the Lieutenant Governor's office, which was filled by state senate president, Senator Shan Tsutsui. Mr. Tsutsui is also a Gen Xer and took his new position on December 27, 2012. Among other things, Mr. Tsutsui was part of the legislature that passed the controversial Public Lands Development Corporation. Recently, he has been on record for amending or repealing that law. As Lieutenant Governor, Mr. Tsutsui said that he will be a liaison for the neighbor-islands. This may mean more support for rural and agricultural land use policies.

The vacancy left by Mr. Tsustui in the state senate president's seat caused some reorganization in the state senate. The new senate president is Senator Donna Mercado Kim, who has a record of holding government accountable (most recently, she led hearings investigating spending accountability issues at the University of Hawaii's athletics department). The senate vice president is Senator Ron Kouchi from Kauai.

Mr. Tsutsui's acceptance of the Lieutenant Governor's position also left a vacancy in the Maui senate seat. Maui Democrats will convene to select nominees for that position. If they nominate a state house member, it may tilt the delicate balance of leadership in that house. Earlier in the year, former house speaker Joe Souki announced that he had the votes to take back the speakership from house speaker Calvin Say, the longest serving speaker in the state house. Mr. Say subsequently gave his notice to step down, but not without first indicating his desire that Representative Marcus Oshiro take his place. House leadership will be settled on opening day of the state legislature on January 16.

Another significant happening in land use and politics is the federal court's final judgment and order that allows Hawaii's largest land use project in history to proceed. The plaintiffs in that case included former Governor Ben Cayetano who ran unsuccessfully against former City Manager Kirk Caldwell in the November elections. Mr. Caldwell will be sworn-in in January.

Land use laws and policies may be affected by these political changes. First, the federal monies tap has been turned off. Without seniority in Hawaii's Congressional delegation, it is unlikely that Hawaii will see the kinds of discretionary funding it enjoyed in the past. Hawaii is among few states with the highest per-capita receipt of federal funding. Much of this was due to Senator Inouye's seniority (which matters a great deal in Congress) and his position as chair of appropriations (the money committee). Mr. Inouye made such capital improvement projects possible as the East West Center, the new National Oceanic and Atmospheric Administration's Hawaii headquarters on Ford Island, and the once controversial H-3 highway. More recently, Mr. Inouye was instrumental in obtaining federal funding for Honolulu's $5 billion rail transit project. Without Mr. Inouye (and recently retired Senator Daniel Akaka), the state of Hawaii falls to the bottom of the pecking order in Congress. We should also see less new federal funding programs that target Hawaii.

Second, with the rise of Gen X leadership, values will shift and find its way into land use policy. The Boomers setup Hawaii's land use system to preserve land, which has been successful. Hawaii's land use system is slow, costly, and unpredictable. Gen X has shown more interest in sustainable use of resources over time, urban revitalization, environmental preservation, local agriculture, renewable energy, direct democracy, and mixed use commercial centers that support creative industries. In addition, Gen X is confronted with huge challenges such as climate change and unfunded government liabilities (e.g., infrastructure and retirement). Land use laws must change and adapt to this new political and environmental reality.

I doubt politics in Hawaii can be more intriguing in 2013, but anyone who tells you they can prognosticate about Hawaii's political future is selling you a bill of goods.

Thank you for reading the Hawaii Land Use Law and Policy Blog. Happy New Year!

Act 55 (2011), Hawaii's Public Land Development Corporation (PLDC)

Source: Wikipedia

With all the sturm und drang surrounding the creation of the PLDC by the legislature (Act 55 (2011)), it is easy to lose sight of what Act 55 actually says.  For better or worse, here is a Reader's Digest version of Act 55.  Unless otherwise indicated, quotations indicate language quoted from Act 55.

The PLDC is the newly created "development arm of the department of land and natural resources (DLNR)."  According to DLNR's Web site, its mission statement is as follows:  "Enhance, protect, conserve and manage Hawaii’s unique and limited natural, cultural and historic resources held in public trust for current and future generations of visitors and the people of Hawaii nei in partnership with others from the public and private sectors."  A portion of the monies earned from PLDC activities are deposited into the Hawaii public land development revolving fund, which ostensibly helps DLNR achieve its mission.

The PLDC is authorized to "identify the public lands that are suitable for development . . carry on marketing analysis to determine the best revenue-generating programs for the public lands identified, enter into public-private agreements to appropriately develop the public lands identified, and provide the leadership for the development, financing, improvement, or enhancement of the selected development opportunities."  In particular, Act 55 enumerates the following non-exhaustive list of "[p]ermissible uses . . . office space; vehicular parking; commercial uses; hotel, residential, and timeshare uses; fueling facilities; storage and repair facilities; and seawater air conditioning plants."

There are five board of directors: chairperson of the board of land and natural resources; director of finance; director of business, economic development, and tourism; and one member each appointed by the speaker of the house of representatives and the president of the senate.  The board appoints an executive director who may appoint officers, agents, and employees.

Various powers to develop public land are granted to the PLDC, such as the ability to make and execute contracts and sue and be sued.  The PLDC has several financing mechanisms at its disposal, including the power to issue revenue bonds (with the approval of the governor).  It can "[o]wn, hold, improve, and rehabilitate any real, personal, or mixed property acquired; and sell, assign, exchange, transfer, convey, lease, or otherwise dispose of, or encumber the same[.]"  PLDC can partner with "qualified persons or other governmental agencies[.]"

The PLDC must "prepare the Hawaii public land optimization plan, which shall define and establish goals, objectives, policies, and priority guidelines for its public land optimization development strategy."  Act 55 provides that the plan must include the following five elements: inventory of public lands, protection of culturally-sensitive areas, feasible strategies for the promotion and marketing of any projects, information on market demands and trends, and strategies for federal and state legislative actions.

The PLDC must coordinate with county governments and private landowners.  "[P]ublic land planning activities of the corporation shall be coordinated with the county planning departments and the county land use plans, policies, and ordinances."  "Any undertaking by the corporation . . . shall be with the express written consent of the landowner or landowners directly affected."

Projects developed by the PLDC are "exempt from all statutes, ordinances, charter provisions, and rules of any government agency relating to special improvement district assessments or requirements; land use, zoning, and construction standards for subdivisions, development, and improvement of land; and the construction, improvement, and sale of homes thereon; provided that the public land planning activities of the corporation shall be coordinated with the county planning departments and the county land use plans, policies, and ordinances."

With regard to hotel projects, Act 55 applies HRS §171-42, which provides as follows "[w]here public land disposed of for hotel or resort use is adjacent to any beach, waterway, or historic monument or landmark, the disposition shall be subject to reservations of public right-of-way or public access at all times to such beach, waterway, historic monument, or landmark."  Under HRS §171-42, in certain circumstances the PLDC can sell the fee for state land "with the prior approval of the governor, and subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both[.]"

The terms and provisions of Act 55 will be further defined through rule-making.  To learn more about PLDC's rule-making process, visit http://hawaii.gov/dlnr/pldc.

Hawaii Governor Signs Climate Adaptation Bill into Law

The following is a press release from the State of Hawaii, Office of Planning:

GOVERNOR ABERCROMBIE ENACTS BILL ADDRESSING IMPACTS OF CLIMATE CHANGE

HONOLULU – Governor Neil Abercrombie today signed Senate Bill 2745 into law, making Hawai’i one of few states in the nation to adopt a statewide climate adaptation policy for dealing with the impacts of climate change.

The bill integrates climate change adaptation priority guidelines into the current statewide planning system. The guidelines were developed through collaboration between county, state and federal agencies, as well as businesses, community and Native Hawaiian organizations.

“By adding climate adaptation to Hawai’i’s planning system, we ensure that this issue will be considered in state and county budgetary, land use, and other decision-making processes,” said Governor Abercrombie. “SB 2745 creates the framework to take actions today so that the natural and built environments we enjoy and depend upon are available for future generations. The measure further ensures that we consider Native Hawaiian traditional knowledge and practices in planning for the impacts of climate change.”

Several state entities are currently engaged in activities related to the potential impacts of climate change on state resources, including the Department of Transportation, Hawai’i Tourism Authority, and the Department of Land and Natural Resources. In addition, the State Office of Planning is coordinating with state and county agencies on integrating the climate adaptation policy into current rules and regulations, with the support of the University of Hawai’i.

“Long-term planning is required to increase our ability to adjust to climate change,” said Jesse Souki, Director of the Office of Planning. “Investing today in moderating potential damage, identifying advantages and opportunities, and developing systems to cope with consequences, can save the state from losses and increased costs in the future.”

According to Dr. Chip Fletcher with the School of Ocean and Earth Science and Technology at the University of Hawai’i at Manoa, “Major climate changes with the potential to impact Hawai’i include warmer temperatures, decreased rainfall and stream flow, decreased rain intensity, sea-level rise, and ocean warming and acidification.”

A copy of Act 286 (2012) can be found at http://www.capitol.hawaii.gov/session2012/bills/GM1403_.PDF.

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

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

University of Hawaii's Final Report on Hawaii's Environmental Review System

Pursuant to Act 1, Session Laws of Hawaii 2008, University of Hawaii researchers prepared a report for the Hawaii State Legislature on Hawaii’s environmental review system. A copy of the document is available at http://goo.gl/yURmK.

The study focuses on five areas of concern within the system: (1) applicability, (2) governance, (3) participation, (4) content and, (5) process, and describes identified issues and specific recommendations for addressing them. The 390 page document proposes drastic changes to Hawaii's environmental review laws, particularly HRS chapter 343, Hawaii's environmental impact statement law.

For previous blog entries on this study, see:

• Hawaii Environmental Reform Bill Deferred Indefinitely
• Honolulu Advertiser Chimes in on Environmental Reform
• Hawaii Environmental Reform Bill Passes Second Senate Committee
• Hawaii Environmental Reform Bill Passes Committee with Amendments
• Final Report to the Legislature on Hawaii's EIS Law
• Joint Legislative Committee Will Consider Changes to Hawaii's EIS Law

It is anticipated that recommendations from this study will be included in proposed bills submitted to the legislature for its consideration.  The opening day of Hawaii's Legislature is held on the third Wednesday in January; i.e., January 19, 2011.

For more on environmental laws, see Environmental Law.

Hawaii Chief Justice Senate Confirmation Hearing

Today's confirmation hearing was a historic, if not controversial, one for Hawaii.

Historic, because Katherine Leonard stands to serve as the first woman Chief Justice of the Hawaii Supreme Court. Controversial, because Hawaii's advise and consent process injects politics into the appointment process.  Visit Legislative Hearings Set for Judicial Nominees to learn more about the process and for access to testimony from the hearing.

Robert Thomas over at inversecondemnation.com hosted a live blog discussion at Live Blog Of Hawaii Senate Judicary Committee Hearing On Confirmation Of Katherine Leonard As Chief Justice (Tuesday August 3, at 9:30 a.m.).

Thank you Robert for inviting me to be a panelist; albeit, I was not able to stay for the entire hearing. Thank you also to my co-panelists who provided terrific insight and commentary.

Legislative Hearings Set for Judicial Nominees

Judicial vacancies on Hawaii's trial and appellate courts are being filled. Most notably is the nomination of Judge Katherine Leonard as Chief Justice of the Hawai‘i Supreme Court. Here is a short description of the process and the list of nominees.

Pursuant to article VI, section 3 of Hawaii's Constitution,

[t]he governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts, by appointing a person from a list of not less than four, and not more than six, nominees for the vacancy, presented to the governor by the judicial selection commission.

Governor Lingle's appointees are the following people:

• Judge Katherine Leonard to the Chief Justice of the Hawai‘i Supreme Court
• Jeannette H. Castagnetti to the Circuit Court of the First Circuit
• Fa‘auuga L. To‘oto‘o to the Circuit Court of the First Circuit
• Colette Y. Garibaldi to the Circuit Court of the First Circuit

For District Court appointments, article VI, section 3 of Hawaii's Constitution provides as follows:

The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than six nominees for the vacancy presented by the judicial selection commission. . . . The senate shall hold a public hearing and vote on each appointment within thirty days of any appointment.

Chief Justice Moon's appointees are the following people:

• Sherri-Ann L. Iha to the District Court of the First Circuit
• Steven M. Nakashima to the District Court of the First Circuit
• Matthew J. Viola to the District Court of the First Circuit
• Michael K. Tanigawa to the District Court of the First Circuit

The legislature will consider these nominees in the 2010 First Special Session. Hearings are scheduled for August 2 and 3, before the Senate Committee on Judiciary and Government Operations.

U.S. Federal Court Rules that Hawaii Law Intended to Lower Rents Violates U.S. Constitution

HRPT Properties Trust announced today that Chief Judge Susan Oki Mollway of the U.S. District Court in Hawaii ruled that a law intended to lower rents HRPT may charge for its industrial and commercial lands in Hawaii violates the U.S. Constitution and is unenforceable.  HRPT is a real estate investment trust (REIT) that primarily owns and leases office buildings. HRPT leases several properties in Hawaii.

Act 189, was passed by the Hawaii legislature in 2009 and became effective without the governor's signature in July 2009.  Through Act 189, the state legislature took the liberty of clarifying private contract provisions agreed to among private parties contained in long-term commercial and industrial ground leases.  Among other things, the Act requires master lessees to limit any sublease rental amount negotiated or renewed during the period the lease rent is renegotiated with the master lessee to the lesser of a) the "fair and reasonable" amount determined according to the aforementioned requirements or b) the rental amount as calculated under the renegotiation or renewal provisions of the sublease.

According to HRPT's announcement, the Court ruling finds that Act 189 violates the U.S. Constitution's Contract Clause which prohibits most forms of state interference with contract rights, and the Equal Protection Clause because it singles out and targets HRPT for the benefit of its lessees and does not serve any legitimate general public purpose.  For additional case information, see HRPT Properties Trust et al v. Lingle.

For additional postings related to constitutional issues and legislation, see Constitutional Challenges and Legislative Updates.

Legislature Attempts to Clarify Shoreline Definition

The State Legislature is considering an amendment to the definition of shoreline.

HB1808 HD3 SD1, "clarifies that a shoreline is the edge of natural vegetation growth or the upper limit of debris left by the wash of the waves, whichever is further most mauka, but never lower than the upper limit of debris left by the wash of the waves." See Stand. Com. Rpt No. 2993. The bill passed the house and will be heard for its last reading by the senate. The bill will likely pass the legislature and be transmitted to the governor for her consideration.

The bill is partially in reaction to Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006). In Diamond, littoral landowners hired a landscaper to plant vegetation, including spider lilies and naupaka, along the "seaward property line" and the public right of way. An irrigation line was also installed to water the newly planted vegetation. The question before the court, inter alia, was how to determine the upper reaches of the wash of the waves for determining the shoreline boundary of a property. In particular, the court addressed the definition of "vegetation growth" that can be evidence of the shoreline. The court concluded that artificial extensions of the vegetation lines shall not be considered in determining a shoreline boundary. Thus, the court held that HRS § 205A-1 clearly defines "shoreline" as:

[T]he upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.

HB1808 HD3 SD1 would amend HRS § 205A-1 as follows:

"Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of natural vegetation growth, or the upper limit of debris left by the wash of the waves[.], whichever is further most mauka, but never lower than the upper limit of debris left by the wash of the waves."

(Underlined text added, bracketed text deleted.)

The amended shoreline definition picks up on Diamond's prohibition on extensions of the vegetation lines by modifying "vegetation" with the adjective "natural." Unfortunately, this may not clarify the court's holding. What is "natural" vegetation? Is irrigated vegetation not natural?

The legislature is also focusing the evaluation of the shoreline boundary on the debris line. The amendment states that the shoreline shall never be "lower than the upper limit of debris"; however, what if there is no debris line? The law, as it is, gives the DLNR (the agency responsible for certifying shoreline boundaries) two methods for determining the shoreline boundary: the debris line or the vegetation line, whichever is higher. Determining the shoreline boundary is not a science, but an art. It is not always apparent where the shoreline is located. DLNR should have the discretion to use the method that best fits a particular situation.  If there is disagreement among interested parties, an administrative appeal process exists.

Given the Diamond decision, the law does not need to be changed. DLNR has the tools it needs to certify a shoreline boundary under current law.

For more on shoreline and littoral landowner issues, see Shoreline.

Hawaii Environmental Reform Bill Deferred Indefinitely

On March 25, 2010, the House Committee on Finance (FIN) recommend that SB2818 SD2 HD2 be deferred indefinitely.

SB2818 started off in the Senate, where monumental changes to Hawaii's environmental review system were proposed based on a study prepared by the University of Hawaii (the study is still not finalized). The University's recommendations included rewriting Hawaii's environmental impact statement law, HRS Chapter 343, which is decades old and has the benefit of judicial interpretation.

Concerned that reform recommendations from the University did not include input from necessary stakeholders, the Senate created a working group. While the working group deliberated, the bill passed the Senate, mostly intact as proposed by the University. However, in the House, the bill was gutted, primarily removing changes to HRS Chapter 343. Instead of dismantling the Hawaii environmental review process, the House focused its attention on reorganzing the environmental council and the office of environmental quality control.

On March 19, 2010, the House Committee on Judiciary (JUD) issued Standing Committee Report No. 903-10. JUD made various technical amendments, but notably, it made the following statement:

[A] working group has been assembled to address concerns regarding changes to Hawaii's environmental review policy, which were proposed in this bill when it was introduced. Although this bill is being kept alive so that the working group may have more time to refine its proposed measure, your Committee has grave concerns regarding the lack of public notice that will attend any backdoor insertion of new provisions.

The statement seemed to indicate that passing a reform bill this session was premature. But the most telling sign, and death knell for the bill, was JUD's amendment of the effective date of the bill to December 21, 2058. This is the state legislature's roundabout way of ensuring that if a bill is accidentally passed (unfortunately it happens) it would not go into effect right away.

Does this mean environmental reform is dead for this legislative session? I would not count your chickens just yet. There are rumors that proponents are seeking a "backdoor insertion of new provisions" into a different bill. This is a common sleight of hand by our state legislators, whereby they insert substantive language into a so called "short form bill." The only requirement being that the short form bill title is germane to the newly inserted language. Stay tuned.

For more on environmental law reform in Hawaii, see Legislative Updates.

State Senate to Consider Governor's State Land Use Commission Nominees

In accordance with the provisions of Article V, Section 6, of the Hawaii State Constitution, the governor submitted three nominees for the Senate's consideration and confirmation to the State Land Use Commission.  The Commission is responsible for state land use district decisions, effectively acting as the gatekeeper to all development in the State of Hawaii.

Two of the nominees currently serve on the Commission.  Duane Kanuha, who is nominated for a term to expire June 30, 2013, and Kyle Chock, who is nominated for a term to expire June 30, 2014.  Ronald Heller is a new nominee and would replace former commissioner Ruben Wong, for a term to expire June 30, 2014.

The Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs will hold a hearing for public comment and participation on Wednesday, March 24, 2010.   See http://www.capitol.hawaii.gov/session2010/hearingnotices/HEARING_WTL_03-24-10_.HTM for more details.

To the Relief of Many, House Committees Put the Breaks on Hawaii Environmental Reform Bill

As reported in Legislature to Hold Hearings on Environmental Reform Bill, the House Committees on Energy and Environmental Protection; Water, Land, and Ocean Resources; and Economic Revitalization, Business, and Military Affairs held a joint hearing on SB 2818, SD2 on March 9, 2010.

By way of background, the bill was first introduced in the Senate, where the Senate Committee on Energy and Environment created a working group to address concerns and to reach consensus on various unresolved issues related to the bill. As the working group continued its work, Senate version SB 2818, SD2, passed the Senate and crossed over to the House for its consideration.

The House committees decided that because "the working group has not yet finished its work . . . that passage of this measure in its present form would be premature," as reported in their joint Standing Committee Report No. 713-10.  At the joint House committee hearing, the committees received testimony in support of the bill from the Sierra Club-Hawaii Chapter.  It received testimony in opposition to the bill from the Attorney General, Department of Health, City and County of Honolulu Department of Planning and Permitting, Alexander and Baldwin, Inc., Building Industry Association - Hawaii, Chamber of Commerce Hawaii, Hawaii Association of Realtors, Hawaii Developers Council, Hawaii Island Chamber of Commerce, Hawaii Leeward Planning Conference, Hawaii's Thousand Friends, Land Use Research Foundation of Hawaii, and The Outdoor Circle.  The University of Hawaii Environmental Center, Earthjustice, Historic Hawaii Foundation, and The Nature Conservancy offered comments.

After the joint House committee hearing, the House committees amended the Senate version of the bill, and passed it out as SB 2818, S.D. 2, H.D. 1, with the following changes:

• Deleting Sections 2 through 9, which contain the proposed changes to Chapter 343, Hawaii Revises Statutes (HRS), relating to environmental impact statements;
• Changing the effective date to July 1, 2010; and
• Making technical amendments for the purposes of consistency, conformity, and style.

Substantively, these changes remove the controversial portions of the bill which would have significantly changed the process for preparing environmental review documents under the Hawaii Environmental Policy Act (HEPA), HRS Chapter 343.   Instead, the House version of the bill focuses primarily on the composition of the Environmental Council and creates a special fund to help fund the activities of the Council and the Office of Environmental Quality Control (OEQC).  The composition of the Council was amended by reducing it from 15 to 9 members, requiring that at least one person from each county sit on the Council, and requiring that the governor choose appointees from a list prepared by the legislature.

The next hearing on this bill is before the House Committee on the Judiciary on Tuesday, March 16, 2010, 2:15 p.m. in House conference room 325.  The bill must be heard by one more House committee, Finance, before it is reconciled by both houses and considered for passage.

Legislature to Hold Hearings on Environmental Reform Bill

The House Committees on Energy and Environmental Protection; Water, Land, and Ocean Resources; and Economic Revitalization, Business, and Military Affairs will hold a joint hearing regarding SB 2818, SD2 on Tuesday, March 9, 2010, 11:15 a.m., at Conference Room 325 in the State Capitol.

For more on SB 2818, SD2 see:

• Hawaii Environmental Reform Bill Passes Second Senate Committee, and
• Hawaii Environmental Reform Bill Passes Committee with Amendments.

SB 2818, SD2 provides the most substantive rewrite of Hawaii's environmental impact statement laws since it was first adopted in 1974.  Many of the changes are in specific response to a handful of land use cases that have caught the media's attention including cases related to the Hawaii Superferry and the Turtle Bay Resort.

Update (03-09-2010): The committees recommended that the measure be deferred until 03-11-10 at 11:05am.

Honolulu Advertiser Chimes in on Environmental Reform

Today's Honolulu Advertiser considers the legislature's ambitious plan to reform Hawaii's environmental laws in, "EIS reform: The cure may be worse than disease."

The Advertiser notes that "Senate Bill 2818, the culmination of two years of study by a University of Hawai'i panel, was greeted with almost universal criticism after it was introduced in January."  It recommends that: "It's time to pause and take a deep breath. The current statutes are cumbersome, but for the most part they work."

Hawaii Environmental Reform Bill Passes Second Senate Committee

SB2818, which proposes a major overhaul of Hawaii's environmental impact statement laws, passed its second hurdle as it wends its way through the Hawaii State Legislature. The bill is part of a package of bills resulting from Act 1, passed in 2008, which requested a full examination of Hawaii's environmental review system.  Act 1 culminated in the University of Hawaii Environmental Review Study released at the beginning of the current legislative session.

On February 9, 2010, the Senate Committee on Energy and Environment ("ENE") recommended that SB2818 pass with amendments. On February 10, 2010, the Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs ("WLH") also recomended passage of SB2818.

On February 12, 2010, ENE and WLH filed a joint report (Stand. Com. Rep. No. 2333), which recommends (1) passage of SB2818 on Second Reading, as amended (SB2818 SD 1), and (2) referral to the Senate Committee on Ways and Means ("WAM"). WAM is the last of three Senate committees that SB2818 must be heard in before it crosses over to the House for further consideration.

Stand. Com. Rep. No. 2333 lists the following changes to SB2818:

(1) Removing the transfer provisions for the Office of Environmental Quality Control and the Environmental Council to move to the Department of Land and Natural Resources, and leaving the Office and Council under the Department of Health;

(2) Increasing the membership of the Environmental Council from seven to nine members;

(3) Including a session law to clarify that present members of the Environmental Council shall serve through June 30, 2012, or until new members are appointed and confirmed;

(4) Clarifying when an environmental assessment shall be required;

(5) Clarifying that the mitigation monitoring report is a disclosure document that requires the approving agency to report on permit mitigation monitoring five and ten years after the completion of the record of decision;

(6) Adding a definition of "significant adverse environmental effect" for clarity;

(7) Increasing the number of years that an environmental assessment or environmental impact statement is valid from seven to ten years;

(8) Changing the effective date to July 1, 2010 for the amendments to chapter 341 and section 343-6, Hawaii Revised Statues, and keeping the effective date for the remaining amendments to chapter 343 at July 1, 2012; and

(9) Making technical, nonsubstantive changes for the purposes of style, clarity, and consistency.

In making its recommendations, the joint committee report notes that

[t]he [University of Hawaii Environmental Review Study] proposed that Hawaii update, refocus, and streamline its environmental review system by replacing the current "project trigger" screen, which encourages late review and eleventh hour public participation, with a new "earliest discretionary approval" screen to encourage early review and public participation. Under this measure, environmental review will apply to major government actions and to private actions tied to an agency discretionary approval process. To increase predictability, agencies will maintain public lists of major discretionary actions that require review and those ministerial actions that do not.

According to the joint committee report, one organization supported SB2818, while thirteen organizations including state and county agencies opposed the bill. Excerpts of that testimony are listed in Hawaii Environmental Reform Bill Passes Committee with Amendments.

For more on environmental issues and the legislature, see Legislative Updates and Environmental Law.