On Wednesday September 26 members of the public (including myself) gave the Kauai County Council a standing ovation for their unanimous passage of a Resolution supporting the repeal of Act 55 and an end to the Public Land Development Corporation (PLDC).
The Garden Island newspaper reported thoroughly on the event and quoted me:
“I believe this county, you folks and our community, should send the strongest possible message … that this is unacceptable,” said Hooser, adding that despite Abercrombie publicly saying he would veto any repeal by the Legislature, he believes otherwise. It would be very contentious, provocative and a big mistake from the governor to veto a repeal, given the clear community outrage and pressure to repeal Act 55, Hooser said.
While the above is essentially an accurate reflection of my remarks, it lacks the context in which those remarks were made. After offering my formal written testimony (see below), Councilmember Nadine Nakamura asked me to speculate on whether or not the Governor might actually veto a “repeal Bill” as he has in the past stated was his intention. I then stated that given the reality of what it would take to achieve the monumental task of convincing a majority of the House and Senate to reverse its prior position of approval, and given the reality of the enormous public sentiment that would be required to make this happen – that I could not imagine the Governor then vetoing the measure. It certainly was not my intent to imply that the Governor did not mean what he said, it is just that I cannot imagine him actually doing it.
My actual written testimony submitted is as follows:
September 26, 2012
RE: Resolution 2012 -52 – Testimony to the Kauai County Council supporting the repeal of Act 55 establishing the Public Land Development Corporation
My name is Gary Hooser and I am testifying today in support of the passage of Resolution 2012-52 and the complete repeal of Act 55 establishing the Public Land Development Corporation.
I presently am on leave from my job as the Director of the Office of Environmental Quality Control (OEQC) for the State of Hawaii. As the Director of that office, my primary responsibility is the administration of Chapter 343 HRS which establishes and defines environmental impact statement (EIS) requirements for the State of Hawaii. I am very familiar with the workings of Chapter 343 and as the Director have provided numerous consultations and workshops on the proper implementation of this important law.
To be clear, I am offering this testimony today on my own behalf and not in my official capacity as the Director of that office.
Though I have many concerns about Act 55, my focus today is primarily based on the broad-based exemptions the law grants yet to be determined development projects that could involve anything from a concession stand in a park to housing developments or even hotel and time-share developments constructed on public lands in the future.
According to Act 55 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”
The legislative exemption of a broad class of development projects from established permitting requirements is a fundamentally flawed principle from a public policy perspective. The statutes, ordinances, charter provisions, and rules of government agencies are there in order to protect the public interest. Act 55 gets rid of all of these rules and basically says “trust me”.
All of the projects mentioned as examples of why we need Act 55 and the PLDC can be accomplished without these exemptions and without the elimination of the public protections now missing in Act 55.
These yet to be determined development projects that would occur on public land should absolutely be required to get the necessary permits and to undergo close scrutiny by the public and the public agencies responsible for fundamental health, safety and environmental protection of our community. If anything, the development of public lands should be held to an even higher standard, certainly those standards should not be lowered such as is allowed with Act 55.
Chapter 343 has been held up by advocates of Act 55 and the PLDC as evidence that environmental laws and protections will remain in place. I believe this is a mischaracterization of the power and protections afforded by Chapter 343.
Chapter 343 is primarily a disclosure document and is intended to thoroughly examine a proposed development project and disclose potential environmental and cultural impacts. However Chapter 343 has no teeth and no mechanism in which to require developments to include mitigation measures or design changes that would alleviate or eliminate the environmental impacts.
For example an Environmental Assessment or Impact Statement might point out the risk of excessive run-off that could result in the pollution of streams, near shore waters, reef habitats and related fishing populations. It is the permitting agency and those related “statutes, ordinances, charter provisions, and rules” that would require the developer to design and implement the project in a manner that would reduce or eliminate that negative impact. It would be the permitting agency that would then enforce the rules and requirements they placed on the developer. Without the support of State and County permitting agencies – Chapter 343 is but a paper tiger and offers few if any real environmental protections. The public can insist that an environmental review be conducted but there is no mechanism that would ensure actual environmental protections.
In conclusion – I strongly urge the Kauai County Council to support the full repeal of Act 55. If amendments are attempted at the legislature rather than a full repeal, my experience is that at the end of the day there would be only minor changes made, perhaps lots of language attempting to assure the public about the intent of the law but the fundamental flaws would remain in place. To be clear the intent of the law may indeed be to serve an important public purpose however the law itself as written, provides wide latitude for abuse and represents what I believe to be bad public policy with real potential for long term harm to both our natural environment and our community as a whole.
5685 Ohelo Road
Kapaa Hawaii 96746