Hawaii Nonpoint Source Program
Comments and Responses

U.S. Department of Commerce
National Oceanic and Atmospheric Administration
Washington, DC 20235

U.S. Environmental Protection Agency
Office of Water
Washington, DC 20460

Dear ........

Enclosed for your information are the responses to comments received on the Final Draft Findings and Conditions for the Hawaii Coastal Nonpoint Pollution Control Program. Where appropriate, we have incorporated changes into the Findings for the Hawaii Coastal Nonpoint Program. A copy of the final Findings is also enclosed.

Based on extensive discussions with coastal states and other interested parties regarding these concerns, NOAA and EPA recently noticed for public review and comment a proposed set of administrative changes that we believe will help states achieve full approval of their coastal nonpoint programs. NOAA and EPA are now in the process of reviewing the comments received on these proposed administrative changes. Once the administrative changes have been finalized, we will undertake a process, in consultation with the states, to review each state's Findings and modify those Findings as appropriate.

Thank you for your letter. If you need additional information, please feel free to contact us [Joe at 301/713-3102 or Dov at 202/260-7085], or have your staff contact Marcella Jansen [301/713-3098, x143] or Audrey Shileikis [415/744-1968].

Sincerely,

Joseph A. Uravitch, Chief
Coastal Programs Division
Office of Ocean and Coastal Resource Management

Dov Weitman, Chief
Nonpoint Source Control Branch
Office of Wetlands, Oceans and Watersheds

Enclosures: Comments and Responses

Comments by:
Bruce S. Anderson
Deputy Director for Environmental Health
Hawaii Department of Health

Comment: The commenter is concerned with the language which appears frequently in the Findings stating that "Hawaii's program does not include management measures in conformity with the 6217(g) guidance for...", and the explanation on page 1 of the Findings which states "where the State has proposed a management measure in its program submittal but has not adopted the management measure as state policy, the finding is that the State's program is not in conformity pending adoption of the measure." For the most part, the management measures that NOAA and EPA consider non-conforming are those implemented at the county level (e.g., most of the urban management measures). In these cases, NOAA and EPA seem to expect State oversight authority or back-up enforcement authority over all aspects of the CNPCP implemented at the local level. This is inconsistent with Hawaii's historical political relationship with the counties, and, therefore, is not politically feasible.

Response: As described in the Program Development and Approval Guidance, states must have enforceable policies and mechanisms to ensure implementation of the (g) management measures and the additional management measures. NOAA and EPA have agreed to provide flexibility to states and accept existing state backup authority where that authority can be used to ensure that the management measures are implemented throughout the 6217 management area. These authorities can be used in combination with incentivebased voluntary programs/activities to provide a full array of tools to apply to individual circumstances.

NOAA and EPA understand that much of the implementation of, particularly, the urban management measures will occur at the county level. While the counties have the responsibility and discretion for implementing these management measures in their jurisdictions, the State has the ultimate responsibility for assuring implementation of the coastal nonpoint program.
Comment: The commenter is also concerned with another statement that appears frequently in the Findings: "...it is unclear what role the State has in working with the counties to implement the management measures throughout the 6217 management area." This seems to indicate that NOAA and EPA want the State to have a mechanism in place to ensure consistency among the counties in their implementation of the management measures. The commenter does not believe that this is reasonable or desirable in all cases.

Response: See response to comment No. 1 above. The State can assist the counties in their efforts to protect water quality by providing clear expectations of how urban development will be managed.
Comment: The conditions under "Enforceable Policies and Mechanisms" also affect activities under county jurisdiction. For example, NOAA and EPA are requiring state management measures and enforceable policies and mechanisms to ensure consistent implementation of the measures for roads, highways and bridges not under State DOT jurisdiction. Hawaii will not be able to meet these types of requirements.

Response: See the response to comment Nos. 1 and 2 above.
Comment: The timeframes for addressing conditions remain unrealistic. The commenter notes that the Findings include conditions asking the State to: develop a monitoring plan; develop a strategy for implementing the agriculture, forestry, and urban measures; and, develop credible survey tools to demonstrate the State's approach to achieve widespread implementation of the management measures within the first year. These requirements are in addition to the Implementation Plan development process the State is currently undertaking over the next year. Given current funding and resource levels, and the time it takes to develop and test effective monitoring and survey mechanisms, Hawaii will be unable to address these condition within the specified timeframes. At a minimum, the requirements to implement the conditions should be closely linked to the availability of funding and meaningful technical assistance from NOAA and EPA.

Response: The conditions in the Findings related to monitoring, implementation strategy and credible survey tools should not be considered as activities separate from the State's development of its Implementation Plan. Rather, these activities should be part of the Implementation Plan to improve Hawaii's Nonpoint Source Program under Section 319 of the Clean Water Act and meet the requirements of section 6217. NOAA and EPA believe that these activities can be accomplished within one year. For example, the State is already in the process of revising its water quality monitoring plan, and could include information on how the revised plan will assess over time whether the management measures are reducing pollution loads and improving water quality. The development and testing of effective monitoring mechanisms would be done as part of ongoing improvements to the monitoring process. Similarly, a strategy to implement management measures for agriculture, forestry and urban measures should be part of the design of the Implementation Plan. The condition does not necessarily envision that implementation of all aspects of the plan would begin in the first year.

Based on early Congressional activity, NOAA is hopeful that some funding will be made available to coastal states in FY99 to assist states in meeting conditions for their approved coastal nonpoint programs. In addition, a significant increase in funds under section 319 of the Clean Water Act is likely to be available for Hawaii to continue improving its overall nonpoint pollution management activities, particularly in priority watersheds identified in the Unified Watershed Assessment process under the Clean Water Action Plan.
Comment: The Findings document identifies alternative management measures developed by local Hawaii experts that NOAA and EPA have determined are not as effective as the (g) measures. The reality of the situation is that there may be some (g) management measures that cannot be implemented in an economically achievable manner in Hawaii, given the State's unique economic, political, and geophysical characteristics.

Response: The discussions that have taken placed among NOAA, EPA and the State regarding alternative management measures for agriculture, have focused on the technical aspects of the proposed alternatives and their appropriateness to Hawaii's situation rather than their economic achievability. However, with regard to economic achievability, during the development of the 6217 (g) guidance, EPA undertook an economic analysis, and determined, on a national basis, that the management measures where economically achievable. NOAA and EPA recognize that the analysis did not contain information specific to Hawaii, and are willing to work with the State to resolve issues where the State has information that shows that (g) measures may not be applicable to Hawaii. For example, EPA funded a regional study of the applicability of the management measures in the Pacific region which provided some pertinent information on urban measures. In addition, EPA provided additional funds to Hawaii to undertake an analysis to identify economically achievable management measures for the island conditions. However, due to resource limitations, the State was unable to use these funds.

States have the flexibility to develop and apply appropriate practices to achieve the management measures under varying physical, economic and social conditions.
Comment: The commenter disagrees with NOAA/EPA's desire for us to use BMP manuals (e.g., Hawaii's manual for forestry BMPs entitled Best Management Practices for Maintaining Water Quality in Hawaii) to achieve management measures. A BMP document should not have to include management measures, nor are BMPs intended to be enforceable state policies. A BMP manual is merely a reference document for land users and source managers to use in determining the best mix of practices for a forestry operation, given site specific characteristics. The commenter believes that the use of a BMP document as an enforceable policy is premature, and refers to NOAA/EPA's proposed administrative changes that calls on states to implement management measurers for new sources as they come on line. The commenter believes that forestry should be viewed as a new source.

Response: NOAA and EPA do not intend that BMP manuals be used as enforceable policies. Rather, a BMP manual can be a tool to clearly articulate to affected parties what the State's expectations are for meeting the management measures. NOAA and EPA have not been provided with the final forestry BMP manual. After we have had an opportunity to review the manual, we would like to discuss this issue further with the State. See also the response to comment No. 57 below.
Comment: The commenter disagrees with NOAA's and EPA's interpretation of flexibility relating to increasing timeframes and postponing fines. The commenter believes flexibility should mean a broader interpretation of section 6217, the ability to accept creative approaches to meeting the intent of the management measures, and the ability to support development and application of local solutions to polluted runoff control that makes sense to communities. The commenter believes that a partnership is people working together with other agencies and organizations toward a common vision and goal, and not as an agency that develops a program to supersede local experts.

Response: NOAA and EPA have conducted a careful and objective evaluation of the State's program that has recognized and considered Hawaii's rainfall and erosions rates, as well as the economic and cultural setting. Additional information has been requested to clarify and support creative approaches to develop and/or meet management measures and alternative management measures. (Also see the responses to comments Nos. 4 and 17).

NOAA and EPA are committed to working with the State to implement a program that is effective in protecting public health and the natural resources; that is cost effective and appropriate to the local circumstances; and meets the local, state and federal requirements. We will work with the State and other agencies and organizations to continue the development and implementation of the coastal nonpoint program in a collaborative and mutually beneficial manner.

Comments by:
Kenneth M. Kaneshiro
State Conservationist
United State Department of Agriculture
Comment: NRCS supports the idea of a pollution plan program to address nonpoint source pollution of our coastal waters. However, since NRCS does not foresee any increase in resources or funding to work with all the agricultural operators in the state, NRCS wants the management plan to clearly note that NRCS' participation in this program will be on a limited basis, subject to funding levels and based on program priorities.

Response: NOAA and EPA appreciate NRCS' support of the State's efforts to implement its coastal nonpoint program, and recognize NRCS' limitations in terms of funds and competing demands. The Hawaii Department of Health (HDOH) and the Hawaii Coastal Zone Management Program (HCZMP) will be meeting throughout the upcoming year with various agencies and organizations that are responsible for implementing the recommendations to meet the management measures. NOAA and EPA encourage NRCS to participate to the extent possible in these efforts.
Comment: NRCS fully supports the idea of the local Soil and Water Conservation Districts (SWDS) taking a leadership role in reviewing and approving pollution prevention plans. However, NRCS is concerned that sufficient funding and resources will not be given to them to carry out their proposed expended functions under this management plan.

Response: See the response to comment No. 8. During the development of the implementation plan, HDOH and HCZMP will discuss as part of this process, resource needs.

Comments by:
Jonathan K. Shimada, PhD
Director and Chief Engineer
Department of Public Works
City and County of Honolulu
Comment: The 6217 management area should not duplicate areas already covered by municipal stormwater NPDES permits. The program should complement, not overlap each other.
Response: NOAA and EPA have endeavored to ensure that State efforts under the NPDES program and the 6217 program are complementary and do not duplicate efforts. Therefore, where an NPDES permit has been issued and addresses the specific nonpoint pollution sources and activities covered by section 6217, those activities and sources are exempt from the coastal nonpoint program. However, it should be noted that many urban nonpoint sources, e.g., construction sites less than 5 acres, individual septic systems, are generally not addressed under an NPDES permit, and would, therefore, still be subject to the State's coastal nonpoint program.
Comment: The Environmental Assessment was prepared without consultation with the City and County of Honolulu, Maui County nor Kauai County, which represent almost 90% of the State's total population.

Response: The Environmental Assessment (EA) was completed to assess the environmental impacts associated with the approval of the Hawaii CNPCP submittal. Although NOAA would like to have engaged all affected parties in the preparation of the EA, this was not feasible. However, the EA was developed in consultation with the State and was sent to all the county planning directors for comments.
Comment: The intent of the Coastal Zone Management Program is not to replace existing programs, specifically the NPDES program. The text should include a statement that areas covered by an NPDES permit are not subject to CZM requirements. Otherwise, there would be serious duplication of Federal, State and County programs and resources.

Response: See the response to comment No. 10 above.
Comment: Agriculture - Throughout all CZM documents, there seems to be reliance of having measures "as effective as 6217(g) guidance" without consideration given to economic impacts of those measures. This is true for agriculture where 6217(g) guidance requires containment of runoff from the 10-year/24-hour storm for general agriculture, and 25-year/24-hour storm for confined animal facilities.

Response: See response to comment No. 5 above.
Comment: Urban - The City and County of Honolulu's municipal stormwater NPDES permit covers nearly all the urbanized area of Oahu. There needs to be clear delineation between NPDES and CZM program to avoid duplication of efforts.

Response: See the response to comment No. 10 above.
Comment: Urban - The requirement to remove 80% of TSS from all storms less than 2-year/24-hour storm needs to be revisited. The 2-year/24-hour storm in Oahu is in the order of 4 to 5 inches in Hawaii, and in some areas could be equivalent to a 100-year/24-hour storm in King County, Washington State.

Response: NOAA and EPA recognize the State's concerns regarding the achievability of some of the urban management measures under the physical conditions found in Hawaii, and will continue to work with the State to resolve these issues, including reviewing any alternative management measures or standards proposed by the State. Also see the response to comment No. 5 above.

Comments by:
Dan Davidson
Executive Director
Land Use Research Foundation of Hawaii
Comment: Since Section 6217 funds expired after FY 95-96, only a small portion of Hawaii's core coastal program funding can be devoted to program implementation.

Response: NOAA and EPA have recognized the challenge of the coastal nonpoint program, and agree that more funds for program development under section 6217 would be desirable. Section 6217 funds were to be used for the development of the coastal nonpoint program. Since the state programs were to be submitted to NOAA and EPA by June 1995, additional section 6217 funds were not available after FY 95-96. However, Federal funds are again available for FY 98.

Congress did not intend that section 6217 be the only source of funding to implement the coastal nonpoint program. Just as the development of the program is a joint responsibility of the state coastal management and water quality agencies, implementation should involve the efforts and support of the resources of all affected entities, e.g., section 319 of the Clean Water Act administered by US EPA and Environmental Quality Incentives Program funds administered by the US Department of Agriculture.
Comment: The commenter believes that opinions of local technical experts should prevail over federal technical experts in the event of disagreements of the achievability of management measures.
Response: Hawaii proposed alternative management measures for all 6 of the agriculture management measures. NOAA and EPA found that 3 of the proposed alternatives are as effective as the 6217(g) management measures, but have not found that the remaining 3 measures are as effective as the (g) measures. The proposed alternatives do not address all the aspects of the (g) measures, e.g., the alternative measure for nutrient management does not address the rate of availability of nutrients, and is unclear as to what "an acceptable level of treatment" is for erosion and sediment control. As discussed in the response to comment No. 5 above, NOAA and EPA will continue to work with the State to resolve issues related to the achievability of the (g) management measures.
Comment: The commenter believes that the timeframes specified for addressing conditions and implementing the program are not achievable with current funding levels. Land Use Research suggests an approach to identify and address priority pollution problems by watershed, thus ensuring that priority problems are addressed immediately.

Response: The timeframes for conditional approval remain the same as those specified in the March 16, 1995, Flexibility for State Coastal Nonpoint Programs, i.e., up to five years to meet conditions for final approval. NOAA and EPA have been flexible in working with states and territories to identify the timeframes for specific conditions. A significant number of Hawaii's timeframes have been changed to accommodate the State's concerns.

NOAA and EPA recently developed a proposal for administrative changes to the coastal nonpoint program which was available for a 60 day public comment period. These proposed changes would provide states with up to 15 years to implement the coastal nonpoint program, and would allow states to prioritize these implementation efforts to address state-determined priorities. Thus Hawaii would have the ability to address its priority problems immediately.
Comment: The commenter is concerned with the expectation for the State to have oversight authority or back-up enforcement authority over all aspects of the implementation of the Program at the county level. This is inconsistent with the constitutional and historical political relationships between the State and the counties in Hawaii.

Response: See response to comment No. 1.

Comments by:
Stephanie A. Whalen
President and Director
Experiment Station
Hawaii Agriculture Research Center
Comment: Hawaii Agriculture Research Center (HARC) agrees with the concerns expressed by the Hawaii Office of Planning and the Hawaii Department of Health that some of the management measures mandated by the Federal agencies are not economically achievable in Hawaii, that local expertise should prevail over federal with regard to conflict in the achievability of certain management measures, that the timeframes and resources needed for implementation are inadequate and that the requirement to modify the relationship between the state and county on enforcement matters may be inappropriate

Response: Please see the responses to comments Nos. 5, 7, 16, and 17 above.
Comment: HARC has concerns about NOAA and EPA's interpretation of congressional intent of the Coastal Nonpoint Pollution Control Program (CNPCP), as evidenced by the detail and mandatory nature of the federal guidance documents and the inflexible approach taken by the agencies in review of the state submittal.

Response: Section 6217 required EPA, in consultation with NOAA and other Federal agencies, to develop guidance for specifying management measures for sources of nonpoint pollution in coastal waters. NOAA and EPA, as the implementing agencies for the statute, decided to publish the Program Development and Approval Guidance to make clear our expectations regarding the state coastal nonpoint programs. Both of these documents underwent extensive public review. In making their determinations regarding the approvability of state programs, NOAA and EPA rely on the requirements of the statute.

NOAA and EPA have often acknowledged that Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 presents a challenge to the coastal states and territories in both the breadth of the sources to be addressed and in the requirement for state enforceable policies and mechanisms. Also see the response to comment No. 5.
Comment: HARC urges EPA and NOAA to expand funding for determining and demonstrating best management practices (BMPs) prior to mandating measures which may be useless under Hawaii's conditions.
Response: While states are required to implement the (g) management measures or an alternative management measure for significant sources of nonpoint pollution, states have the flexibility to develop and implement BMPs appropriate to local conditions, as long as the implementation of those practices will result in the implementation of the management measures. NOAA has acknowledged in the Environmental Assessment that the unique conditions in Hawaii can impact the achievability of certain management measures. Therefore, Hawaii has flexibility to develop island-specific practices based on local conditions. See the response to comment No. 5.
Comment: HARC believes that EPA and NOAA should be much more accepting of Hawaii's CNPCP program submittal considering the current budgetary constraints in the State, the high cost of the CNPCP program (since Hawaii was not included in the EPA economic analysis for this program, the higher costs in Hawaii were not considered in determining economic achievability), and that the federal funding available under section 6217 will prove woefully inadequate to address the effects on coastal water quality from all land use and resource management activities in the State. Therefore, the State should be allowed to be practical and prioritize those problems or specific areas that will provide the most significant improvement in coastal water quality.

Response: Please see the responses to comments Nos. 4, 5, 16, and 18 above.
Comment: HARC understood the program to be basically non regulatory, so is puzzled by EPA's and NOAA's emphasis on enforcement. Specifically, management measures and BMPs will only be useful and economically feasible if they can be implemented in the context of local circumstances. If NOAA and EPA intend to mandate specific management techniques to control agricultural run-off for example, the economic impact on Hawaii's farmers will be substantial and, in fact, the viability of small farming may be jeopardized. HARC is unsure of how the proposed Pollution Prevention Plan (PPP) program will be financed but is sure that the typical family farm (in Hawaii, these operations are very small, ranging from 2 to 10 acres) will find it very difficult to pay for such a program.

Response: Please see the response to comment Nos. 1, 5, and 16 above.
Comment: It has taken a lot of time and effort to achieve a certain level of stakeholder buy-in which is essential to the success of Hawaii CNPCP program. While HARC and others do not necessarily agree with entire Hawaii CNPCP submittal, we do support the premise and believe that a reasonable program, one with enough relevance and flexibility to work in Hawaii, will benefit the State.
Response: NOAA and EPA agree that the State has undertaken considerable effort to inform and involve stakeholders in their coastal nonpoint program. We believe that, particularly under the proposed administrative changes, the State can develop and implement a coastal nonpoint program appropriate for the State, and NOAA and EPA are committed to assisting the State in these efforts.

Comments by:
Charles Jencks
Director of Public Works and Waste Management
County of Maui
Comment: The State Office of Planning with input from working groups and various jurisdictional agencies have prepared the CNPCP. Over a period of three years, this effort involved thousands of hours of work. To comply with just one of the recommended CNPCP actions, it has taken three years to revise the grading ordinance which is currently being reviewed by our county council. With the current economic downturn in the state and lingering concerns over revenues and program funding, it is not realistic to assume that the timeframes for addressing the EPA/NOAA conditions are achievable.

Response: The timeframes for conditional approval remain the same as those specified in the March 16, 1995, Flexibility for State Coastal Nonpoint Programs, i.e., up to five years to meet conditions for final approval. NOAA and EPA have been flexible in working with states and territories to identify the timeframes for specific conditions. A significant number of Hawaii's timeframes have been expanded to accommodate the State's concern. NOAA and EPA will provide assistance, where possible, to the State in meeting the conditions for program approval. See the response to comment No. 18.
Comment: Due to a multitude of geophysical difference between the islands and differences between district regions within each island, the State of Hawaii is unlike other coastal states. Thus, each district region may require is own type of management program. With these wide parameters, it is difficult to address specific management measures in a policy making document such as the Hawaii CNPCP.

Response: States have the flexibility to develop and apply appropriate practices to achieve the management measures under varying physical, economic and social conditions. Under NOAA's and EPA's proposed administrative changes, states will have even more flexibility to prioritize and adapt their programs. Please see the response to comment No. 5.

Comments by:
Lisa M. Nuyen
Director of Planning
County of Maui
Comment: The Maui Planning Department has particular interest in nonpoint source pollution as it is one of many inter-related systems that impact the environment. Therefore, the Department supports any plan or document that addresses this issue.
However, they are very concerned about any reference to implementing this program on a statewide level. All implementing actions should lie with the respective counties.

Response: NOAA and EPA applaud the County's efforts to improve its ability to prevent contaminants from entering coastal waters. While section 6217 requires that the State have enforceable policies and mechanisms to ensure implementation of the management measures, much of the coastal nonpoint program can and should be implemented at the County level, allowing provision for island-specific conditions. Please see the response to comment No. 1 above.

Comments by:
David Kimo Frankel, Director
Hawaii Chapter of the Sierra Club
Comment: The commenter is disappointed that EPA/NOAA has accepted alternative measure for confined animal facilities, pesticides and irrigation. These alternative measures appear to be less effective than the federal standards without adequate justification.

Response: NOAA and EPA carefully reviewed Hawaii's proposed language for the referenced agriculture management measures, and had extensive discussions with State representatives as well as staff from the Natural Resources Conservation Service. From this review, EPA's technical experts agreed that three alternative management measures would achieve the same result as the management measures identified in the (g) guidance. Therefore, these alternatives were determined to be as effective as those in the (g) guidance. Also see the response to comment No. 17.
Comment: A fifty foot vegetated buffer should line all undeveloped stream corridors.

Response: NOAA and EPA agree that this management practice would be beneficial in protecting streams from the impact of nonpoint pollution, and should be considered in the State's development of its coastal nonpoint program. However, the management measures published by EPA do not require buffers to be used in all cases. While states must be able to ensure implementation of the (g) management measures, a state has the flexibility to develop and implement management practices appropriate for local conditions.
Comment: Grazing is inappropriate on land with native species because it reduces biodiversity and increases polluted runoff.

Response: NOAA and EPA agree that the State should consider the value of native species in the implementation of the grazing management measure.
Comment: The proposed Pollution Prevention Plan is flawed because authority to approve the plans is given to the Soil and Water Conservation Districts. Large landowners have a disproportionate amount of authority in electing people to the Districts.

Response: NOAA and EPA understand that the State has not yet fully developed its proposal for the use of Pollution Prevention Plans (PPPs) to implement the agricultural management measures. The process for approval of the PPPs should include clear criteria that ensures implementation of the management measures.
Comment: Regarding the forestry management measures, the commenter suggests that no logging take place within 20 feet of the highwater mark of any stream; that no fertilizers be applied within 50 feet of any stream except at the initial planting; that native understory vegetation be planted within 20 feet of any stream; that there be no logging on slopes greater than 25% or in gullies; and that clearcutting be prohibited.

Response: NOAA and EPA agree that these management practices would be beneficial in protecting coastal waters from the impact of forestry operations, and should be considered in the State's development of its coastal nonpoint program, particularly in the context of the streamside management measure for forestry. While states must be able to ensure implementation of the (g) management measures, a state has the flexibility to develop and implement management practices appropriate for local conditions.
Comment: Since submission of the plan to the federal government, the Board of Land and Natural Resources has adopted Best Management Practices (BMPs) for forestry. However, the BMPs were drafted assuming that compliance would be voluntary, and they will need to be redrafted if compliance is to be expected and enforced. (The commenter provides several examples of language from the BMP document which are of an encouragement nature.)

Response: The State is required to have enforceable policies and mechanisms to ensure that the management measures for forestry are implemented. This may require either some modification to the BMP manual for forestry or some other enforcement mechanism.

Comments by:
Rick Egged
Director of Planning
and
Bruce Anderson, Deputy Director
Hawaii Department of Health
Comment: The commenters are concerned with the language which appears frequently in the Findings stating that "Hawaii's program does not include management measures in conformity with the 6217(g) guidance for...", and the explanation on page 1 of the Findings which states "where the State has proposed a management measure in its program submittal but has not adopted the management measure as state policy, the finding is that the State's program is not in conformity pending adoption of the measure." For the most part, the management measures that NOAA and EPA consider non-conforming are those implemented at the county level (e.g., most of the urban management measures). In these cases, NOAA and EPA seem to demand direct State oversight or back-up enforcement over all aspects of the CNPCP. The commenters wish to note that this is inconsistent with Hawaii's historical political relationship with the counties, and, therefore, they believe that the Federal expectation is not politically feasible for all management measures.

Response: See response to comment No. 1.
Comment: The timeframes for addressing conditions are unrealistic given current funding levels.

Response: NOAA and EPA will continue to seek additional resources to assist states to fully develop and implement their coastal nonpoint programs.

Comments by:
Stephen T. Kubota
Ahuupua'a Action Alliance
Comment: The Alliance non-concurs [sic] with NOAA's Findings and Conclusion for the preferred alternative of conditional approval of Hawaii's CNPCP Management Plan on the grounds that the Environmental Assessment fails to address the social, cultural and economic impacts of conditional approval. The EA does not discuss the adverse impacts that will result if additional time and expense for holding public meetings, revising and reprinting documents, and going through another review process is required over the next 5 years to satisfy the conditions being imposed by NOAA's preferred alternative. The Alliance suggests another alternative which would involve the approval of the Hawaii CNPCP as submitted, and the transfer of the conditions to a two-tiered implementation plan. The first tier of the implementation plan would include early action non-regulatory programs that focus on Public Trust resources, and the second phase would include additional management measures and regulatory programs that focus on private lands.

Response: NOAA and EPA believe that the environmental assessment developed for the Hawaii coastal nonpoint program, in combination with the Programmatic Environmental Impact Statement developed for the coastal nonpoint program, adequately addresses the impacts of conditional approval of the Hawaii coastal nonpoint program. In reviewing the Hawaii CNPCP, NOAA and EPA found that the program provided a good foundation but did not address all of the elements required for program approval under section 6217 of CZARA. Therefore, NOAA and EPA have conditionally approved the CNPCP and provided the State with additional time to fully develop its program without the imposition of statutory penalties.
Comment: Reliance on non-regulatory approaches is necessary to provide maximum flexibility when dealing with regional geographic differences within each island and among the various islands. It is necessary to deal with "hot spots" and high priority Water Quality Limited Segments such as the Ala Wai Canal. (Recently the Department of Health issued a warning advising the public not to eat fish from the Ala Wai Canal and other urban streams in Honolulu because pesticides and lead in fish may pose a health risk.) It is also necessary to preserve the Public Trust relationship the State has with Native Hawaiians and the general public who are inhabitants of the Hawaiian Islands.

Response: While states must be able to ensure the implementation of the (g) management measures, they have flexibility in determining what management practices are to be implemented to ensure that the practices are appropriate for local conditions. In addition, states have the flexibility to prioritize their implementation efforts to respond to critical conditions. As discussed in the response to comment No. 18 above, NOAA and EPA recently developed a proposal for administrative changes to the coastal nonpoint program which was available for a 60 day public comment period. These proposed changes would provide states with up to 15 years to implement the coastal nonpoint program, and would allow states to prioritize these implementation efforts to address state-determined priorities. Thus Hawaii would have the ability to address its priority problems, such as the Ala Wai Canal, immediately using a combination of regulatory and non-regulatory programs.
Comment: NOAA's preferred alternative of conditional approval of Hawaii's CNPCP will be perceived as another delay being imposed upon the peoples of the Hawaiian Islands by a federal agency in Washington that is dominated by the problems of the continental coastal states.

Response: The conditional approval of the Hawaii CNPCP allows the State time to fully develop an approvable coastal nonpoint program that fully addresses all the nonpoint pollution threats to Hawaii's coastal waters. Conditional approval does not delay the State in its implementation of effective nonpoint pollution control. NOAA and EPA expect that the State, in conjunction with the counties, will begin immediately to implement nonpoint pollution controls where possible under existing programs. In particular, the State should begin to apply appropriate management measures to new sources.
Comment: Hawaii's CNPCP reflects the unique island community and the Hawaiian sense of place that must be considered in implementing a cost-effective program to control polluted runoff before it reaches coastal waters. The emphasis on the non-regulatory approach allows us to preserve our "Island Sense of Place" by permitting flexibility among the various regions of each island and between the several islands. A regulatory approach would necessitate adoption of statewide standards that may not be uniformly applicable to every region of each island.

Response: NOAA and EPA disagree that State standards can not be written without the flexibility to allow for island-specific practices. Please see the response to comment No. 22 regarding implementing management practices appropriate for local conditions.
Comment: Because of Hawaii's unique Public Trust Doctrine, the concept of "back-up authority" must be reversed. Non-regulatory approaches should be viewed as "primary" and regulatory authority viewed as "back-up".
Response: NOAA and EPA encourage states to use voluntary and incentive-based mechanisms to encourage voluntary implementation of the management measures. However, if these voluntary efforts are not successful, states are required to have enforceable policies and mechanisms to ensure implementation.
Comment: It is not clear from the Findings and Conclusions whether the entire plan will be delayed for up to 5 years if the "Conditional Approval" alternative is adopted. What is clear is that findings will be delayed until approval is granted and there will be hesitation to implement projects "on the ground" while conditions are being addressed "on paper".

Response: As discussed in the response to comment No. 37 above, the conditions in the Findings provide the State with additional time to complete development of its coastal nonpoint program. Since many elements of the State's program are based on existing authorities, policies and programs, the State, working with the counties, should continue implementation of the existing elements of its program and begin implementation of other new programs as soon as possible. NOAA and EPA do not believe that program completion efforts will delay implementation of on the ground projects.
Comment: The State of Hawaii has had a strong tradition of using volunteers. NOAA should seriously evaluate the role of volunteers in assessments of non-regulatory approaches. In Hawaii especially, "volunteers" would be synonymous with "beneficiaries" of the Public Trust resources. From this perspective, the principle of "equitable ownership" provides a legal framework to justify the use of volunteers to implement management measures to prevent polluted runoff from damaging trust resources.

Response: NOAA and EPA encourage the use of citizen volunteers to assist in the implementation of the State program.
Comment: The commenter notes that Executive Order 12898 entitled Federal Actions to Address Environmental Justice in Minority Population and Low-Income Populations is not addressed in the Environmental Assessment. Of special concern is the specific directive to eliminate unnecessary duplication of effort through the use of existing data systems and cooperative agreements. Adherence to the Presidential directive would vastly improve the effectiveness of non-regulatory strategies. Volunteers should be treated as "low-income" communities.

Response: The environmental assessment provides information regarding the environmental benefits, of either full or conditional approval, that will accrue to all. The section of the Executive Order 12898 cited by the commenter, section 3302(d), relates to avoidance of duplication of efforts for research, data collection and analysis, particularly with respect to collection and analysis of human health and environmental risk data. The application of this section to the coastal nonpoint source pollution control program is unclear. Nonetheless, Hawaii's coastal nonpoint pollution control program, through the requirement for administrative coordination, ensures that the program will not involve unnecessary duplication of efforts.

NOAA is not aware of any authority, either the Executive Order or any other law, that requires the treatment of volunteers as lowincome communities. However, the environmental benefits resulting from Hawaii coastal nonpoint pollution control program will be experienced by all, including volunteers and lowincome communities.
Comment: It is difficult for the public to communicate directly with an agency in Washington which has the responsibility to make decisions that will directly affect our daily lives. We urge you to give serious consideration to visiting with us before you finalize your decision.

Response: We appreciate the invitation to meet with you to discuss the Findings. NOAA and EPA are committed to continue working with the State to fully develop and implement its coastal nonpoint program and visit the State on a regular basis. However, funding limitations limit our ability to travel to Hawaii prior to completion of these Findings. NOAA and EPA have scheduled a trip to Hawaii in August to discuss the coastal nonpoint program and other coastal issues. If you would like to discuss these issues further, you may contact Marcella Jansen at NOAA (301-713-3098 ext. 143) or Audrey Shileikis at EPA Region 9 (415-744-1968).

Comments by:
Donald E. Heacock
Kauai District Aquatic Biologist
Hawaii Department of Land & Natural Resources
Comment: The commenter strongly concurs with the findings and conditions. He suggests that Hawaii needs explicit policy and strategic plans to implement better soil and water conservation practices for the following issues:
- Need to establish a "no net loss" policy for stream, estuarine and coral reef habitats; Hawaii's Water Code needs to be amended to include this language;
- Need to establish a "storm water quality protection program" similar to that of Washington State; stormwater runoff and its associated nonpoint pollutants should be considered Hawaii's number 1 water quality problem;
- BMP's should be required, implemented and incorporated into all State agricultural leases, and leases should be required to first develop a conservation plan approved by the local Soil and Water Conservation Districts;
- Environmental assessments on proposed urban developments are inadequate with many agencies, or divisions within agencies, being left out of the loop; all proposed urban developments should be sent to a local "watershed advisory group" or the local Soil and Water Conservation District for environmental assessments in order to assure that sustainable development occurs (i.e., development that does not negatively impact ecosystem integrity);
- Hawaii should have a policy of establishing "Watersheds Councils" within each watershed, and the councils should be recognized by local authorities as having a district role in local planning and natural resource conservation;
- County SMA permits are inadequately protecting wetlands since counties do not have the expertise to identify wetland areas, therefore there is an urgent need to have all wetland habitats placed into a GIS system that can be used by county planners; also, district aquatic biologists should be contacted by all county planning departments if a development is proposed next to a stream, estuary, wetland or marine habitat so that an effective environmental assessment can be conducted;
- There is a great need to establish short and long-term ecological monitoring programs, particularly those that measure pollutant loading and are directed at improving water quality and quantity at the State level in order to conserve, protect and restore the natural resources of Hawaii for the benefit of the public.
Response: NOAA and EPA agree that the suggested changes would significantly improve Hawaii's ability to manage existing and potential nonpoint pollution sources, and encourage the State to consider these suggestions as it continues development of its coastal nonpoint program. They are not, however, required by the CZARA program.

Comments by:
Susan Elliot Miller
Consultant with the Natural Resources Defense Council
Comment: With regard to program enforcement, what does the phrase "... but has not demonstrated the ability of the authority to ensure implementation of the management measures throughout the 6217 management area" mean? The demonstration of this authority is a straight forward proposition: either the cited authority gives the State enforcement authority to or it doesn't. I assume that you are referring to HRS Chapter 342D and the state water quality standards in HAR 11-54.

Response: Where a state has a specific authority to address a potential nonpoint pollution source, e.g., a law governing requirements for installation and management of septic systems, the direct linkage between the (g) management measure, the requirements of the enforceable policy and the process for implementing those requirements are usually clear. However, it is usually not as evident how a state can or will use a general authority, such as state water quality standards, as a "back-up" to ensure implementation of the management measures, where voluntary efforts are not successful. That is, there is not a direct linkage between the requirements of the statute and the necessity to undertake activities (i.e., implement management measures) to prevent pollution of coastal waters. In order to ensure that a state coastal nonpoint program results in the implementation of the (g) measures, NOAA and EPA require that the states make clear how these linkages will work to attain the necessary result.
Comment: Implementation of the State CNPCP will be difficult due to the following problems in Hawaii's programs related to polluted runoff: generally unknown levels of effectiveness; discretionary implementation; lack of personnel and operating resources; and a lack of necessary follow through.

Response: NOAA and EPA agree that Hawaii, along with other coastal states, will need to address many challenges in implementing an effective program to reduce nonpoint pollution of coastal waters. Some of the issues identified (e.g., discretionary implementation) can be addressed as the State completes development of its program. NOAA and EPA are committed to seeking additional resources for the states and providing technical assistance to states to help them implement their programs.
Comment: With regards to the Agriculture erosion and sediment control measure, reference to the CMS standard should be retained in the proposed alternative measure, until such time that the State develops its standard for an " acceptable level of treatment...."

Response: The State is continuing its development of an alternative management measure for erosion and sediment control on agricultural lands.
Comment: With regard to the Grazing measure, excluding grazing from sensitive areas and careful monitoring of management plans are critical to realize this goal. The

commenter also recommends excluding grazing where over 10% of the area is comprised of native species.

Response: Please see the response to comment No. 31 above. However, please note that the management measure does not contain a numerical threshold of native species that would automatically exclude grazing.
Comment: The State's alternative measure for Nutrients does not appear to weaken the measure and should be lauded for including additional language to control soil erosion.

Response: As explained in the Findings, Hawaii's proposed alternative management measure differs from the (g) measure in several ways. Specifically: 1) the proposed measure will not determine the rate of availability of the nutrients; 2) the realistic yield expectations will be based on "achievable yields" (to be determined by Cooperative Extension Service, nutrient management planners, farmers, or others), rather than on yield histories (State Land Grant University recommendations, or NRCS soils information); and, 3) the proposed measure will not include soil tests for nitrogen. With these limitations, it is not clear to NOAA and EPA that the alternative will be as effective as the nutrient management measure in the (g) guidance. Therefore, we have conditioned the management measure pending the State including these missing elements in the alternative measure or providing NOAA and EPA with information to show that the alternative is as effective as the (g) measure.
Comment: Hawaii -specific BMPs for infiltration, detention, and retention of flows caused by urban development need to be developed and incorporated in county drainage standards.

Response: NOAA and EPA agree that these additional BMPs could improve the State's program.
Comment: All Hawaii counties should follow Kauai County's lead and adopt watershed protection measures such as ordinances to avoid or minimize development in areas particularly susceptible to erosion or sediment loss.

Response: NOAA and EPA support this suggestion.
Comment: Under the site development measure, counties should develop ordinances restricting the percentage of each developable lot which can be covered by impervious materials.
Response: NOAA and EPA believe that this suggestion would help significantly in protecting water quality from the adverse effects of development.
Comment: State and County authorities need to require erosion and sediment control plans for all construction, regardless of lot size.

Response: Under section 6217, the State is only required to apply the Construction Site Erosion and Sediment Control management measure to sites less that 5 acres in area that do not have an NPDES permit. Further, the management measure does not apply to (1) construction of a detached single family home on a site of ½ acre or more or (2) construction that does not disturb over 5,000 square feet of land on a site.
Comment: While the suggestion on page 10 of the Findings that the State assess the nonpoint source pollution control program established by HRS 342-3 has merit, the commenter suspects that not much of a program would be found, although elements would be in place.

Response: NOAA and EPA encourage the State to undertake such an assessment and determine whether improvements to the program could be made to advance the State's efforts to control nonpoint pollution of coastal waters.
Comment: The finding for the marina's shoreline stabilization measure is unclear: the finding states that the program does not include the measure, while the rationale says that the State's alternative measure is as effective as the (g) guidance.

Response: While the State has proposed an alternative management measure in its document submitted to NOAA and EPA for the coastal nonpoint program, the alternative management measures has not been incorporated into an active State program for dealing with shoreline stabilization. However, NOAA and EPA have indicated in the Findings that, once this measure is reflected in actual program operations through, for example, adoption of a BMP manual to be used by marina developers and operators, the proposed alternative will be approvable. See response to comment No. 6. above.
Comment: With regard to the hydromodification measures, the Stream Channel Alteration permits are required by the Commission on Water Resources and not DLNR as stated in the findings.

Response: The correction to the Findings has been made.
Comment: In general, the program should develop new planning and development criteria to reduce runoff volumes at the site rather than continuing to deal with runoff after it has been aggravated by development.

Response: NOAA and EPA agree. This objective can be achieved by full implementation of both the Site Development and Watershed Protection management measures.
Comment: The State needs to address the lack of clear state policy and authority regarding wetlands, that is clearly identified in the CNCP submittal.

Response: NOAA and EPA agree.
Comment: The State should follow-up on CNCP proposals for increased agency coordination and community based watershed/wetlands planning.

Response: NOAA and EPA agree.
Comment: The State should look for creative ways to assist citizens in carrying out monitoring of, and education about coastal nonpoint source pollution. Several examples include: the use of toll-free number to report pollution and community college training for watershed coordinators.

Response: NOAA and EPA agree.
Comment: The CNCP Program should be commended for recognizing the need for effective regulatory programs - such programs need to be developed in a collaborative and open process to be effective. The State's Executive Council does not appear to meet these criteria.

Response: It is NOAA's understanding that the Executive Planning Council (the Governor and the four mayors) is not a public forum but simply a time for the executives to talk about common issues. Although nonpoint pollution control issues would be an appropriate topic for discussion, the State has indicated that this Council should not be viewed as a primary forum to develop new legislation or policy initiatives because the appropriate stakeholders are not involved.
Comment: The CNCP proposal to develop "a consistent and standardized routing system" for review and approval of permits is supported. Such an effort must involve island-based state agency personnel.

Response: NOAA and EPA agree.
Comment: Community-based Watershed planning is a logical means of implementing the CNPC program, and would also help build a constituency for the program.

Response: NOAA and EPA agree that watershed planning can be used to engender support for implementation of management measures to protect coastal waters and resources.
Comment: In addition to increased monitoring and enforcement and permit tracking, knowledge and commitment on the part of legislative bodies, public attorneys, and the judicial system are necessary components of a successful program.

Response: NOAA and EPA agree.
Comment: Although constraints such as lack of State funding and personnel should not be an excuse for inaction, these constraints are very real. Without improvement, some of the time frames for program completion and implementation are impossible.

Response: NOAA and EPA recognize the limited resources available to the State. Please see the response to comment No. 16 above.

Comments by:
James J. Nakatani
Chairperson, Board of Agriculture
Department of Agriculture
Comment: The agriculture focus group, and not any single agency or individual drafted the agriculture alternative measures. Considerable effort in building consensus was required to forge the plan. The commenter feels that it was unfortunate that EPA and NOAA have outstanding issues since it would have been better to have the Federal agencies as participants, rather than critics in developing the Hawaii CNPCP.

Response: All states had the opportunity to request the NOAA and EPA conduct a threshold review of its proposed coastal nonpoint program. The threshold review was an initial review by NOAA and EPA of a state's approach to specific elements of its coastal nonpoint program. The review addressed key issues and decision points that a state wanted to discuss prior to drafting its coastal nonpoint program. The intent of this early review was twofold. First, the process allowed the state, NOAA and EPA to discuss the state's approach to certain program elements before the state invested substantial resources in program development. Second, it helped states set priorities and focus early on the final program. NOAA and EPA went to Hawaii to discuss the requirements of the coastal nonpoint program and learn about Hawaii's unique environment. However, at that time, the State was just beginning the process of developing the State coastal nonpoint program and specific coastal nonpoint issues could not be discussed. NOAA and EPA would welcome the opportunity to provide comments and assistance to the State in the continuing development of its coastal nonpoint program and Implementation Plan.

Comments by:
Mary Steiner, CEO
The Outdoor Circle
and
Christen Mitchell
Na Leo Pohai
Comment: For the watershed protection and existing development management measures, the commenters indicated that Hawaii needs an enforceable statewide program to protect the watershed areas. Specifically, there is concern in the community about herbicides and sediment contaminating the water supply.

Response: NOAA and EPA agree.
Comment: For the construction site chemical control management measure, the commenters indicated that Wa'ahila Ridge is the preferred route for a new 138,000 volt electric transmission line. Because no management measures are in place to address the housekeeping of toxic substance on construction sites, it appears there will be little or no oversight by the State during this massive construction. Because Hawaiian Electric Company targets construction of this line to be completed by the year 2000, the development of management measures by the State should begin as soon as possible.

Response: NOAA and EPA agree that this management measure would be beneficial in protecting coastal waters from the impacts of construction site chemical control. States have the flexibility to prioritize their implementation efforts to respond to critical conditions. As discussed in the response to comment No. 18 above, NOAA and EPA recently developed a proposal for administrative changes to the coastal nonpoint program which was available for a 60 day public comment period. These proposed changes would provide states with up to 15 years to implement the coastal nonpoint program, and would allow states to prioritize these implementation efforts to address state-determined priorities. Thus Hawaii would have the ability to address its priority problems immediately.
Comment: For the pollution prevention management measure, the commenters raised an issue for the State to strengthen the program to include expanded nonpoint source education to commercial entities. Such an expansion is strongly encouraged, especially for those who routinely work with chemicals, such as the State Department of Transportation (roadside herbicide use), tree trimmers (maintaining utility rights of way), farmers, and pest control services.

Response: NOAA and EPA support this suggestion.
Comment: For the monitoring management measures, the commenters request that the State include monitoring stations in key watershed areas, such as Kalihi and Palolo Valley, in its plan.

Response: Hawaii is currently in the process of revising its water quality monitoring plan. The plan will include four monitoring categories: core network, recreational bathing waters, watershed protection, and toxic contaminant screening. The overall goal is to focus available resources on the most critical needs. The Department of Health is the agency working on the water quality monitoring plan.
Comment: For the conditions, the commenter suggest that the State have a one year deadline to develop a strategy to implement the management measures for watershed protection and construction site chemical control.

Response: NOAA and EPA agree. See page 20 of the Hawaii Coastal Nonpoint Program Findings and Conditions.

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