Board Talk

Limu Stewards Oppose Plan to Alter Sand Berm in `Ewa

Limu gatherers are once again challenging drainage improvements proposed for the mouth of Kaloi Gulch in `Ewa, O`ahu. But this time, they aren’t just up against Haseko (`Ewa), Inc.

The Department of Hawaiian Home Lands, the University of Hawai`i-West O`ahu, and the City and County of Honolulu’s Department of Planning and Permitting have joined the Ocean Pointe developer in filing a Conservation District Use Application to lower a natural berm at One`ula Beach Park that blocks runoff from flowing to the sea. They say lowering the berm by two to four feet would still allow it to function as a filter, but it would also prevent flooding during 10-year storm events. Without such an outlet, Kapolei will have a harder time becoming O`ahu’s second city, they say.

But for native Hawaiian cultural practitioner Michael Kumukauoha Lee, who successfully fought a similar proposal by Haseko in 2007, developers can and should minimize urban runoff by building vertically rather than horizontally and by constructing retention/detention basins on their properties. Simply allowing runoff from the 10-mile gulch to drain, unfiltered, into the ocean, will harm `Ewa’s famed limu beds, he argued.

On March 23, the state Board of Land and Natural Resources sided with the developers and approved their request for a Conservation District Use Permit.

In response, Lee and Native Hawaiian Legal Corporation attorney Alan Murakami asked for a contested case hearing. NHLC is representing another limu gatherer, Henry Chang Wo.

Roadblock 

Up until the early 1990s, much of the land within the Kaloi Gulch Drainage Basin had been used to grow sugarcane. And according to testimony Haseko consultant Nelson Lee gave to the state Land Use Commission in 2007, “Because of the plants and soil, surface flows were generally absorbed through infiltration and didn’t reach the ocean.” Storm water runoff through Ocean Pointe was only about 550 cubic feet per second (cfs), he said.

Urbanization changed that. In November 1996, heavy rains flooded the `Ewa Villages development so badly that the city tasked a group of engineers with devising a plan to address the storm water runoff that was expected to accompany increased urbanization within the 7,500-acre basin.

The engineers decided to limit runoff into Kaloi Gulch to a total of 2,500 cfs and, to date, developers have accomplished this using retention/detention basins, primarily in the form of golf courses. The 2,500 cfs limit would remain until an ocean outlet large enough to accommodate 100-year storms was constructed.

As part of its Ocean Pointe/Hoakalei development, which occupies most of the land at the mouth of Kaloi Gulch, Haseko shouldered the burden of designing and constructing drainage improvements that could accommodate all of the basin’s runoff. Haseko had originally planned to divert the runoff into its proposed marina at Hoakalei, but abandoned the idea after the city raised concerns that the drainage improvements might somehow damage a sewage outfall that runs beneath the marina.

Instead, Haseko looked to One`ula Beach Park, which is owned by the city but is surrounded by the Ocean Pointe development. Haseko sought a Special Management Area permit from the city and a Conservation District Use Permit from the state Department of Land and Natural Resources in 2007 to widen the gulch and lower the sand berm at the park. (Currently, the channel can accommodate 4,200 cfs. City standards require it to handle a 100-year storm peak flow of 8,100 cfs for it to be considered a permanent outlet.)

“If this berm is not lowered, flood waters will reside at the park and eventually the backwater may flood the park, homes in the older `Ewa Beach neighborhood and some of the homes at Ocean Pointe,” Nelson Lee told the LUC.

And unless the ocean outlet is developed, “some land that UH [West O`ahu] wants to ultimately develop has to be set aside for a time for storm drainage facilities,” he said.

When asked what the alternative might be should either the SMA or the CDUP be denied, Lee said, “The only real alternative is for each of the projects in the drainage basin to provide enough retention and detention infrastructure within their developments to limit the amount of channelized flows that exit each of their makai boundaries, just as the current developments have done without an ocean outlet.”

The city granted Haseko a SMA permit in July 2007. That same month, the Land Board was set to decide on Haseko’s CDUA, but the NHLC, representing Michael Kumukauoha Lee, requested a contested case hearing. As a result of the request, the Land Board took no action and no further testimony on the permit application.

Hearing officer Lawrence Miike, a former director of the state Department of Health and member of the state Commission on Water Resource Management, conducted a contested case in 2008. In January 2009, upon Miike’s recommendation, the Land Board denied the CDUA. It found that Haseko had not proven that the project was necessary. With the proper infrastructure, urban runoff could be contained within individual developments, the board found.

Round Two

Nearly two years later, after the city had a chance to revise its development plans to designate One`ula Beach Park as the outlet for Kaloi Gulch, Haseko, UH-West O`ahu, the DHHL, and the Honolulu Department of Planning and Permitting applied for a CDUP for the Kaloi Gulch drainage improvements. The permit would cover work on about half an acre of state land makai of One`ula Beach Park. Representing the applicants was SSFM consultant Dean Uchida, a former administrator for the DLNR’s Land Division.

“New information shows that future development within the Kaloi Gulch drainage basin will be significantly restricted without the proposed drainage improvements at One`ula Beach Park,” wrote DLNR Office of Conservation and Coastal Lands planner K. Tiger Mills in her March 23 report to the Land Board.

At the Land Board’s March 23 meeting, OCCL administrator Sam Lemmo said his office supported the project because it is not a channelized culvert box system that cuts to the shoreline and affects access and beach processes.

“This [berm] is more of a natural feature,” Lemmo said. “At the end the day, we believe [the landowners] deserve to address you again, state their case, see if the project can continue. From our perspective, we prefer these types of improvements over culvert box type improvements,” Lemmo said.

Uchida noted that the Kaloi Gulch situation is unique in that a group of landowners within the drainage area together devised a solution to their flood control issues.

“The project will allow lands UH-West O`ahu and DHHL set aside for drainage to be reduced, a savings of eight to 11 acres of land at UH-West O`ahu,” Uchida said. He added that the state Department of Transportation has indicated that, at some point, it will turn all of its land around North-South Road, which includes a detention pond, over to the DHHL, which has two developments planned for its lands in the area.

“If we can reduce size of the retention basin at North-South Road, DHHL will gain. … That was the difference between the last proposal and this proposal. That’s why there are so many applicants,” he said.

UH-West O`ahu vice chancellor Donna Kiyosaki also testified in favor of the project. The campus currently has more than 22 acres of retention basins, but if the 2,500 cfs limit is lifted, the university could cut that down to about 11 acres, she said.

“For UH-West Oahu, our land is our asset,” she said.

For Sandy Pfund, DHHL’s land development division administrator, the decision to become a co-applicant was considered very carefully to ensure it was culturally appropriate.

“By and large, we felt it would be fair to go forward with the improvements,” she said, adding that the Office of Hawaiian Affairs had indicated that it was not averse to DHHL’s participation. Whether or not the project will harm the seaweed native Hawaiians use in the cultural practices is debatable, she added.

“We have over 1,000 homesteads. Retention basins will not be taken away; those are for water quality. It’s just that with more improvements downstream, more land could be made available,” she said.

City DPP director David Tanoue also downplayed the project’s potential environmental impacts, noting water is likely to breach the berm only during a “significant, catastrophic storm event.”

“You know water is going to have that kind of runoff from other outfalls,” he said.

“This [project] is a key component of continued development of Kapolei as a second city,” he said.

Saving the Seaweed

Key to Kapolei or not, Michael Kumukauoha Lee warned the Land Board, “If you do approve this, I will stand up for a contested case to do this dance one more time.”

“When you take out the natural sand, you take out the natural filter,” he said, adding that limu in `Ewa is diminishing. He also referred to a study by Florida marine scientist Brian Lapointe presented during his 2008 contested case hearing, which showed that invasive species of limu thrive with the high nitrate levels.

Funneling more runoff into the ocean will create a bloom of invasive limu that will destroy native limu, Lee said. And “according to the constitution, you don’t play around with Hawaiian practices and health,” he said.

The Land Board has a duty to investigate cultural practices in the project area, as well as the impact the project might have on those practices, the NHLC’s Murakami explained. What’s more, he said, “every agency is supposed to reasonably protect those practices from harm. … So far from what I’ve heard, there can’t be that because there aren’t the first two things.”

Chang Wo said directing urban runoff to One`ula Beach would pollute the only beach in Kaloi Gulch and cause irreversible damage.

“The ocean needs to drink as you and I need to drink, [but] as with any plant, it’s water quality [that’s key],” he said. “If you don’t watch the `aina, you’re going to lose what you have in the ocean.”

The idea of trading the viability of a reef for a few acres of developable land puzzled Murakami.

“Why can’t there be other lands [to collect runoff]? Why can’t it be a golf course, rather than a reef that you have a public trust duty to protect?” he asked the board.

To this, Kaua`i Land Board member Ron Agor argued that today’s runoff is less harmful than what came off the land during the sugar plantation era.

“I know for a fact the runoffs of the sugar land is far worse than it is today. … I worked in the sugar industry,” he said.

Lee, however, pointed out that the sugar plantation in `Ewa was different from others.

Because `Ewa is so porous, even heavy rains would percolate into the soil, he said, adding that any ponded water would be filtered by sand before it reached the ocean.

“When you put asphalt and concrete, it can’t do that anymore. You’re increasing the volume into a narrow parameter,” he said.

Deliberation

“You’re in a difficult situation,” Lemmo told the board. “What you do can affect state and county plans for planned development of the West O`ahu area. … We felt our recommendation [to approve the permit] was the best we could do for this board and this public. Like I said, it’s a natural berm. It doesn’t appear that it’s going to be overtopped frequently.”

Land Board members David Goode and John Morgan also noted that overtopping was projected to occur only when the island received eight inches of rain in a day. And with that much rain, runoff is going to come from everywhere, not just Kaloi Gulch.

“With eight inches, there’s a lot going on” in terms of runoff, Goode said.

“In a 10-year storm, the whole coast is brown,” Morgan added.

“From my perspective, it’s a reasonable project,” Morgan said.

At-large board member Sam Gon was also supportive, but warily so.

To the applicants, he said, “You’re going to run into major problems of this sort, which are likely to increase over time,” and the nature of the area’s drainage will have been radically changed.

“The water is no longer percolating and coming slowly out through the system. Instead it gets channeled. This is symptomatic of a larger issue over the entire watershed. If we’re really going to be concerned about this kind of thing, we really have to bolster not only the mitigative response, but really think hard about those kinds of things,” he said.

“There’s always that hard push for using lands against what the natural system relies upon so there is the correct interchange of nutrients from land into sea. … The lowering of a berm is a tiny bit of that,” he said. “I really implore you to take second, third, and continual looks at drainage. … Otherwise, it will become that impervious drainage, as we’ve got in Honolulu. … I want to ensure in 20 years, this was not the point at which `Ewa turned into another impervious [city] and land and sea were destroyed by it.”

Over Murakami’s objections that the Land Board could not legally proceed in the face of a request for a contested case hearing, the board unanimously approved the permit.

“I’m a firm believer in engineering standards. … Whatever water that is going to be released will be free of chemicals,” Agor said.

***

Hawaiian Group Seeks to Halt

Maui Telescope Construction

To Native Hawaiian Legal Corporation attorney David Kimo Frankel, what the University of Hawai`i is doing is just crazy. And he’s not going to stand for it.

On April 10, University of Hawai`i Institute for Astronomy assistant director Michael Maberry informed the state Department of Land and Natural Resources’ Office of Conservation and Coastal Lands that it planned to begin construction of the Advanced Technology Solar Telescope (ATST) on the summit of Haleakalā on May 14. This, despite the fact that the university is in the midst of a contested case hearing with the native Hawaiian organization Kilakila `O Haleakala — which NHLC represents — over the Conservation District Use Permit for the telescope, approved in December 2010.

The university apparently failed to notify Kilakila `O Haleakala of its decision. The group, which is dedicated to protecting Hawaiian cultural sites, was disappointed.

“I’m very concerned that the university would do this when the Board of Land and Natural Resources has not issued a decision in our contested case hearing as to whether the university should even be allowed to build a fourteen-story telescope at the very top of Haleakalā,” Kilakila `O Haleakala president Ki`ope Raymond said in a press release.

Frankel called the move unprecedented and insulting.

“The university is trying to bulldoze its project through without regard to legal requirements, the impacts to Native Hawaiians, or the consequences to the National Park,” Frankel said, arguing that a developer cannot start building before the Land Board decides whether the development should be permitted.

He added that the contested case hearing process had already been “indelibly tainted” by pressure on the former hearing officer for an expedited decision from U.S. Sen. Daniel Inouye’s and Gov. Neil Abercrombie’s offices. The former officer, Steven Jacobson, and his recommendations to the Land Board were dismissed last month by the board after it found he had improperly communicated his concerns about the alleged pressures to the University of Hawai`i.

On March 29, the Land Board decided to appoint a new hearing officer to draft new recommended findings of fact, conclusions of law and a decision and order. The board gave the officer a mere two months after being appointed to complete the job., The university could not wait that long and decided to proceed with two projects that would shrink the university’s current presence on the mountain, while making space for the ATST.

Over eight weeks, the university plans to remove the concrete foundations at an early 1950s remnant known as Reber Circle, then level the site. It also plans to remove boulders along Reber Circle Road and an asphalt parking lot and to dig a utility corridor so power lines between two adjacent facilities can run underground. Total cost for the work is $1.5 million, according to UH associate vice president Lynne Waters.

To Frankel, even such preliminary work is unacceptable.

Last month, the NHLC filed a handful of motions in 1st Circuit Court to halt construction.

Frankel said that in the Kaloi Gulch case (see above item), he has gotten a stipulation from Haseko attorney Yvonne Izu that construction of drainage improvements would not start until the contested case hearing NHLC had requested is done.

“We threatened to file a restraining order, but she understands it’s crazy” to start construction in the middle of a contested case hearing, he said.

The Land Board, however, held a different view. On April 13, it issued Minute Order 17, which would have allowed construction to begin, but would have amended the CDUP to give the DLNR and all parties to the contested case 30 days advance notice of any construction activity. It would also have given the Land Board the power to impose conditions on construction activities. A hearing on the motion was scheduled for April 27.

In its FY 2013 budget request to Congress, the National Science Foundation stated that the project had initially postponed site preparation until the case was resolved.

“Given the recent history of telescope construction on mountains sacred to Native American and Native Hawaiian people, delay in obtaining permission to begin construction was anticipated,” it stated.

Because of the delay, the project “will accelerate the expenditure of ARRA [American Reinvestment and Recovery Act] funds, in keeping with Administration policy,” the foundation stated. (Congress appropriated $146 million in ARRA funds in FY 2009.)

Waters says the university has waited patiently throughout the contested case hearing process. But “[d]ue to an overly long contested case process (now over one year), the ATST Project is losing ARRA funding for this project at the rate of about $500,000 per month since January 2012 unless we begin work. The project cannot afford to delay any longer to act on the permit we’ve had since December of 2010,” she wrote in an email to Environment Hawai`i.

She added, “The mitigation work in this phase is simply to return the area to its prior state (remove Reber Circle, clear material and debris from previously disturbed areas of prior astronomy use, prepare underground utility corridors in adjacent areas for electricity and other uses), not to begin constructing buildings. The CDUP itself requires that work begin prior to December 2012.”

“There is no ‘stay’ or other condition before commencement of work that must be met. It technically could have started in December of 2010; but out of respect for the contested case process, project management waited as long as it could,” she said.

Although this appears to be the first time a permittee has decided to start construction in the Conservation District in the midst of a contested case, there are no statutes or rules that prevent it, according to DLNR public information officer Deborah Ward.

Asked whether the department is concerned that other CDUP holders in the same situation might also proceed with their projects, Ward chose not to comment, citing the pending litigation.

On April 13, Rosemary Fazio was appointed as the new hearing officer.

***

NOAA Gets NWHI Permit

To Cull Pup-Eating Sharks?

Once again, to protect endangered Hawaiian monk seal pups, the Land Board has approved a permit to kill rogue Galapagos sharks at French Frigate Shoals in the Northwestern Hawaiian Islands. Under the permit, researchers with the National Oceanic and Atmospheric Administration have until May 31, 2013, to kill up to 18 sharks via hand lines, harpoons, drum line, bottom sets, and netting. Captured sharks will be brought ashore, roped and humanely killed with a bang stick, according to a DLNR report.

In response to concerns raised by native Hawaiians, shark carcasses will be disposed of at multiple deepwater locations, while the skin and jaws will be retained for cultural purposes.

Since 2010, NOAA has removed only two sharks. In addition to remove up to 18 sharks, NOAA hopes to translocate weaned pups to safer islets this year.

Although there was not unanimous agreement, the Monument Management Board supported the permit, according to Bob Nishimoto of the DLNR’s Division of Aquatic Resources.

At the Land Board’s March 23 meeting, Nishimoto asked that the board declare the permit actions are exempt from review under Hawai`i’s environmental law, Chapter 343.

NOAA monk seal expert Charles Littnan said there are anywhere from 600 to a couple of thousand Galapagos sharks around FFS.

“Overall, Galapagos sharks are doing really well across the NWHI,” he said.

Littnan noted that juvenile survival has jumped recently.

“The great bottleneck now is the loss of pups due to shark mortality,” he said.

— Teresa Dawson

Volume 22, Number 11 May 2012