~~!:~i~~c~lp~e~~. ·1 PO Box 2577, Honolulu, HI 96805~ J Kfo-.fi 803.537.9019 hawaii.chapter@slerraclub.org

HOUSE COMMITTEE ON JUDICIARYMarch 25th

, 2008,4:05 P.M.(Testimony is 1 page long)

TESTIMONY IN OPPOSITION TO S8 3103 SD1 HD1

Chair Waters and members of the Committee:

The Sierra Club, Hawai'i Chapter, with over 5500 dues paying members statewide, opposesSB 3103 S01 H01, setting up a procedure for the state and county to establish aprogrammatic Habitat Conservation Plan (HCP) or Safe Harbor Agreement (SHA) thatlandowners can join without having to go through the scrutiny of their particular project. Webelieve that this measure is unnecessary and endangered species issues cannot be resolvedin this "one size fits all" manner.

By introducing the open-ended concept of "certificates of inclusion," the bill would allow theissuance of licenses to kill endangered and threatened species without adequate assurancesup-front that Hawaii's imperiled animals and plants will not be pushed closer to extinction,much less that adequate measures will be in place to increase the likelihood the species willsurvive and recover, as Chapter 1950 requires.

The existing law already allows multiple landowners to enter into a single HCP or SHA (HRS1950-21 (a), 1950-22(a)). Thus, if all the folks on Kaua'i currently "taking" (killing, harming,etc.) listed seabirds want to enter into an island-wide HCP, they are free to do so. The processwould require the assessment of each landowner's specific situation to quantify the level oftake for each and determine what types of minimization and mitigation are necessary to confera net benefit on the species. One option for mitigation would be contribution to efforts toprotect seabird colonies from predators (cats, rats, etc.), with all landowners pooling theirmonetary contributions into one pot.

The difference between the current situation and the programmatic HCP/SHA this billproposes is that, under existing law, you would need to know which landowners wouldparticipate in the multiple landowner agreement. Then, based on detailed information aboutactual levels of take and offsetting minimization or mitigation, the proposed HCP/SHA couldbe assessed using real data to determine if it met the statutory standards. In contrast, the billwould allow incidental take to be authorized when you have no idea which/how manylandowners would ultimately participate and what the total contribution to a joint effortultimately would be. Thus, if you needed $100,000 from each of 10 landowners to reach the$1 million necessary for effective colony protection, under the existing law, you would grantthe incidental take only after you knew 10 landowners were on board. Under this bill, youmight grant incidental take authority to the first 5 landowners who sign up, and never get allthe funds needed to carry out mitigation. The species could die with no offsetting benefit.

In the case of endangered species, one size does not fit all. We respectfully ask that thesecommittees hold SB 3103 S01 H01.Thank you for the opportunity to testify.

o Recvcled Content Jeff Mikulina, Director

THE UNIVERSITY OF HAWAII ENVIRONMENTAL CENTER IS PLEASEDTO SUBMIT THIS TESTIMONY IN ACCORDANCE WITH ACT 132 OF

1970 WHICH CREATED THE CENTER. AUTHORS ARE MEMBERS OFTHE UNIVERSITY COMMUNITY.

RL: 2201SB 3103 SDI HDI

RELATING TO ENDANGERED SPECIES

House Committee on Judiciary

Public Hearing - March 25, 20084:05 p.m., State Capitol, Conference Room 325

byDavid Duffy, Botany

Peter Rappa, Environmental Center

~~,")4,,e;

SB 3103 SD1 HD1 authorizes the development and use of programmatic safe harboragreements and programmatic habitat conservation plans that cover multiple landowners or a classof landowners and over a wide area or region. We emphasize that our testimony on this measure doesnot represent an official position of the University of Hawaii.

Safe Harbor Agreements enlist landowners' participation toward efforts to protect andrestore endangered species, potentially saving the taxpayer a great deal of money. Partnerships withprivate landowners are critical to the State's ability to restore and protect our natural resources, andSafe Harbor Agreements provide landowners the assurance that they will not be penalized byadditional endangered species restrictions at some point in the future as a result of their efforts. In2006 the U.S. Department of Agriculture's (USDA) Natural Resources Conservation Service(NRCS), the Hawaii Department of Land and Natural Resources (DLNR) and the U.S. Fish andWildlife Service (USFWS) announced the formation of what will be the first statewide "safe harboragreement" for Hawaii. The agreement is to encourage land owners to make improvements towetlands, riparian or uplands habitat that will benefit any of the five covered endangered birds:Hawaiian Goose (Nene), Hawaiian Duck (Koloa maoli), Hawaiian Moorhen (Alae ula), HawaiianCoot (Alae keokeo), and Hawaiian Stilt (Aeo).

This act would provide a mechanism on the side of the state that would be in alignment witha similar federal program. While these agreements are not without problems, they do represent animportant and efficient tool for conservation; therefore, the present bill should be supported.

Thank you for the opportunity to comment on this bill.

2500 Dole Street. Krauss Annex 19, Honolulu, Hawai'i 96822-2313Telephone: (808) 956-7361 • Facsimile: (808) 956-3980

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aod-conditiollS, In ~dd:ition;when·F'~eral. fundsafe providedfofoonservati6n activities (as isthe caseinrriostPro~aticSnAs» the !bnding agency conductsaNEPAen,virQfuTIert!aleffootsreyiewof:a~tiviti¢:S;'aswefrasNatiQnataisthnc Preservation A~t'Section 106., CleanWatetActseCtiQn '404. and Btidangered SpeciesArit'section 7consuttations. Thus~ the' .additionalgovermnent reviews aru:tapprovals in the sa 3103atnenaments. in my opinion, wouldduplicate. the existing govenllnen~te\tiew processe~. delay theprocess by.at feast tWotosL'trnontbs.apd resultilltf netCQsttobQthag~cies and Iandowners.A better way forthe·.gOVet11m<m'tto evaluate (;Onserva.llo-n vafuewouId b€} to request site visits tOSOl11e ofthe. enrolledpropertlestOinteractWitfflandoWnersandgaintltst..hand knowledge.

TheUSFWS.'.SHA.policY",...4)rovides.incentiy~s ..~()r.p~vate.andothertl'on~F~dentl.propertyovVtlerstorestore.enhMc~,ormaintainhabitatforHstedspecies" (64FR12117), Under theState,SI-IAswere,deveto~d to "'henoourage~~pw?erstovoluntarilye~gli~~Jneffortsthatbenentendangered,tltreatened,proposedandcandidate species..."(HR$§J9$I)--Z2(a.». 1 fail tosee th,e logic in arguments presented bythose who want to over-regulate landowners enrolled ina voltmtary itt~ntives program,

The Programmatic SHAts one ormany conservation tools intbetoolbox ofthe conservationprofessional It is not a cute-all. ltisnot suited toraH landOwners; It has numerous successstotiestbroughout the nation(M.Bean, Environmental DeIenkfurn4 Testhrn:my on SB 3103.March 1'7~20og) ..There is no reaso~whyit should not bemademore~s."ibleto privatelandowners who wish to use this conselvation tool and help en,d:a:ngered species.

lrespectndlyrequest yourpassageofSB 3103 initsoriginalforrn.... AlthoughI do not supporttbe HQuseDraft 1amendments tothe Senate version ofthe biIl(fQ£ Programmatic SHAs).t:hatwouldreguiremor~ government reviewand ove~ight for participating land;owners, Iwouldsupportan amendment thata1lows· for approval'byDLNR staffwith'expertise in SHAs, .Iverymuchsupporttbe progr4JltJnaticapproach which promotesmoreeff'ective conservmiol"lstrategiesandefficicl'ltuseofpubUc dQllars.· .

Thank youJbckeepinStb~SB31 orrdis¢ussiona1iv~at~dthe opportunitytQprovide testimony Oil

thIs hllPQrtmtlegislation. .

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HAWAII LEEWARD PLANNING CONFERENCEP.O. BOX 2159 • KAMUELA, HAWAJI96743·2159

22 March 2008 .

In Consideration ofSenate Bill No. 3103 SD1 HD1Relating to Endangered Species

Tuesday, 25 March 20084:05 p.m. - Conference Room 325

House Committee on Judiciary

The Honorable Representative Tommy Waters, ChairThe Honorable Representative Blake K. Oshiro, Vice-Chairand Honorable Members of the Committee on JudiciaryState House of Representatives, Hawaii State Capitol, Room325Honolulu, Hawaii 96813

Dear Chair Waters, Vice-Chair Oshiro, and Members:

I am Jacqui Hoover, President of the Hawaii Leeward Planning Conference(HLPC), a member-based organization incorporated in 1974 whoseseventy-five plus members are committed to sound planning, wise use ofour resources, and effective government process.

HLPC supports the intent of Senate Bill 3103, Senate Draft 1, House Draft1 proposing to amend Chapter 195D of the Hawaii Revised Statutes toencourage greater participation in the restoration of endangered species byprivate landowners.

Under eXisting laws, Programmatic Safe Harbor Agreements (SHAs) andProgrammatic Habitat Conservation Plans (HCPs) undergo rigorous reviewand approval processes involving several agencies at both the state andfederal levels including and not limited to, the Department of Land andNatural Resources (DLNR), U.S. Fish and Wildlife Service, and theEndangered Species Recovery Committee. Additionally, both formal andinformal public comment periods can add years to the process before onegains approval(s). The aforementioned (and several additional) entitiesreview and approve the terms and conditions of programmatic agreementsand plans, and respective Conservation Agreements and Certificates ofInclusion must be consistent with the approved terms and conditions.

Requiring additional government review for participating landowners wouldbe redundant. Such requirement would also diminish the successful anduseful programmatic approach, discourage rather than encourageparticipation (particularly in Programmatic SHAs) by private landowners,thereby negatively impacting endangered species restoration efforts.

AKINAKA & ASSOCIATES, LTD.ALSTON HUNT FLOYD & INGARCHITECTS HAWAII, UMITEDASHFORD & WRISTONBANK OF HAWAIIBAYS DEAVER LUNG ROSE & HOLMABELT COLUNS HAWAII, LIMITEDCADES SCHUTTE FLEMING & WRIGHTCASTLE & COOKE WAIKOLOA, LLCCENTEX DESTINATION PROPERTIESCENTRAL PACIFIC BANK .CLARK REALTY CORPORATIONCOOPER & COOPER, LLCD.R. HORTON, INC., SCHULER DIVISIONDE LUZ ENTERPRISES, INC.DE REUS ARCHITECTSFERRARO CHOI & ASSOCIATES, LIMITEDFIRST HAWAIIAN BANKFOREST SOLUTIONS, INC.GREENWELL FARMS, INC.HAWAII LAND COMPANYHPM BUILDING SUPPLYHAWAII ELECTRIC LIGHT COMPANYHOKULI'AHOLUALOA COMPANIESHUALALAI RESORTIMANAKA KUDO & FUJIMOTOJACOBY DEVELOPMENT, INC.JARDINE INVESTMENT PROPERTIES, LLCKAHUA RANCH, LIMITEDKAI HAWAII, INC.KAMEHAMEHA INVESTMENT CORP.KAMEHAMEHA SCHOOLSKAUPULEHU DEVELOPMENTSKEALAKEKUA RANCH, UMITEDKITCHELL CONTRACTORSKOBAYASHI GROUP, LLCKOHALA RANCH DEVELOPMENT CORP.KTA SUPER STORESKUKUIPAHU ENERGY, LLCLANIHAU PROPERTIES, LLCL'ORANGE & ASSOCIATESM & E PACIFIC, INCMacFARMS OF HAWAIIMARYL GROUP, INC.MAUNA KEA PROPERTIES, INC.MAUNA LANI SERVICE, INC.McCANDLESS LAND & CATTLE COMPANYMcCORRISTON MILLER MUKAI McKINNONMENEHUNE DEVELOPMENT COMPANY, INC.MOOERS ENTERPRISES, LLCTHE NATURE CONSERVANCY OF HAWAIITHE NELSON COMPANIES INCORPORATEDNORTH HAWAII COMMUNITY HOSPITALNORTH KONA VILLAGE, LLCOKAHARA & ASSOCIATES, INC.PA'AHANA ENTERPRISES, LLCPACIFIC RESOURCE PARTNERSHIPPALAMANUIPARKER RANCHPBR HAWAIIPONOHOLO RANCH, UMITEDQUEEN EMMA LAND COMPANYTHE QUEEN UU'UOKALANI TRUSTR.M. TOWILL CORPORATIONRIEHM OWENSBY PLANNERS ARCHITECTSRYAN ASSOCIATESSAM O. HIROTA, INC.THE SHOPOFF GROUPSURETY KOHALA CORPORATIONTITLE GUARANTY ESCROW SERVICES, INC.TSA CORPORATIONW.H. SHIPMAN, LIMITEDWAIMEA WATER SERVICES, INC.WATER RESOURCES INTERNATIONAL, INC.WES THOMAS ASSOCIATESWEST HAWAII CONCRETEWILSON OKAMOTO CORPORATIONWIMBERLY ALLISON TONG & GOO

P.O. BOX 2159KAMUELA, HAWAII 96743

TEL: 808.885.9588 FAX: 808.885.9590hlpc@hawaiiantel.net

www.hawaiileewardplanning.org

Hawaii Leeward Planning ConferenceTestimony - SB 3103 SOl HOl

JUO - 25 March 2008Page Two of Two

It is important to recogn.ize the distinct differences between HCPs and SHAs. HCPs are mitigation andconservation plans for landowners incidentally "taking" listed species. SHAs are not plans, but rather, areagreements for landowners to voluntarily provide a net conservation benefit to listed species whilesimultaneously receiving regulatory assurances under endangered species laws.

Programmatic SHAs serve as incentive tools based on cooperation, mutual trust and respect that simplifyregulatory requirements to encourage more landowners to participate in helping endangered species.SHAs have been successfully implemented nationwide without requiring multiple and redundant layers ofgovernment and public forum reviews, and it is difficult to understand why landowners participating in avoluntary incentive program should be over-regulated. Such over-regulation can only serve to defeat thepurpose of a Programmatic SHA.

In closing, we do not support the amendments made in House Draft 1 and respectfully request passage ofSB 3103 in its original form.

Thank you for this opportunity to express our views on this matter.

Respectfully submitted,

Jacqui L. Hoover, PresidentHawaii Leeward Planning Conference

TESTIMONY OF: Larry Komata, Vice PresidentOF THE: Big Island Resource Conservation and Development Coun

On Senate Bill 3103, Senate Draft 1, House Draft 1 - Relating to Endangered S

BEFORE THE HOUSE COMMITTEE ON JUDICIARY

March 25, 2008Senate Bill 3103, Senate Draft 1, House Draft 1 proposes to amend Chapter 195D, HawaiiRevised Statues to encourage greater participation in endangered species restoration by ~

private landowners through Programmatic Safe Harbor Agreements (SHAs) and ~Programmatic Habitat Conservation Plans (HCPs). The House Draft 1 amended the Senateversion of the bill and would require each participant of a Programmatic SHA to undergo areview process similar to that required for individual permits. Under existing laws, SHAs andHCPs already undergo a rigorous review and approval process involving the Department ofLand and Natural Resources (DLNR), U.S. Fish and Wildlife Service, the EndangeredSpecies Recovery Committee, Board of Land and Natural Resources, and informal and formalpublic comment periods and can take years to gain approvals. These entities approve theterms and conditions of programmatic agreements and plans, and individual ConservationAgreements and Certificates of Inclusion are required to be consistent with the approvedterms and conditions. Thus, the additional government review for participating landownerswould overlay programmatic reviews and replicate the existing government oversight process.It would also diminish the usefulness of the programmatic approach and discourageparticipation, particularly in Programmatic SHAs, and endangered species restoration byprivate landowners.

There are distinct differences between SHAs and HCPs. HCPs are mitigation andconservation plans for landowners incidentally "taking" listed species. SHAs are not plans,they are agreements; agreements for landowners who, voluntarily, want to provide a netconservation benefit to listed species but desire regulatory assurances under endangeredspecies laws. Cooperation and mutual trust and respect are common themes of SHAs.Programmatic SHAs are incentive tools intended to simplify regulatory requirements so thatmore landowners will help endangered species. It doesn't make sense to over-regulatelandowners in a voluntary incentive program. SHAs have been implemented successfullythroughout the Nation. Yet, we do not know of any other Programmatic SHAs that requiremultiple layers of government and public forum reviews, for the simple reason - it defeats thepurpose of a Programmatic SHA.

We respectfully request your passage of SB 3103 in its original form. We do notsupport the House Draft 1 amendment to the Senate version which would require moregovernment reviews and approvals for landowners participating in Programmatic SHAs;however, we would support an amendment that allows for approval by DLNR.

We thank you for the opportunity to provide testimony on this important legislation.

Respectfully Submitted - Larry Komata, Vice President BIRC&D CouncilBIRC&DC Office Suite 229 -A Hilo Lagoon Centre 101 Aupuni St. Hilo, Hi. 96720Tel.- (808) 933-6996