‘Pioneer’ OCCL Director Retires
At the Land Board’s December 10 meeting, Department of Land and Natural Resources’ Office of Conservation and Coastal Lands administrator Sam Lemmo announced that he would be retiring at the end of the month after 30 years with the DLNR.
In reminiscing about some of the more memorable cases he brought to the Land Board, Lemmo recalled an issue reported at length by Environment Hawai‘i editor Patricia Tummons in 1994.
“One of the reasons I sort of turned out the way I did … was ironically something that happened to me in the early ‘90s,” he said. He described how, as a young planner with the department, he had been pressured by a Land Board member to accept an application by a wealthy homeowner in Makena, Maui to expand her landscaping onto state land that was in the Protective subzone of the Conservation District.
“I recommended denial. They were not happy with me,” Lemmo said, adding that some board members had berated him for the position he had taken.
The board approved the Conservation District Use Permit anyway — despite past violations by the applicant and concerns expressed by the county Department of Water Supply, other divisions within the DLNR, and members of the public — but the permit was later forfeited and revoked after Tummons’ May 1994 cover article on the whole affair.
“At the end of the day, I had done the right thing,” he said, adding that the case shaped his approach to work at the department: “Try to do the right thing. Try to be consistent. Try to be fair and reasonable.”
He recalled how his office led the state’s violation case against companies owned by James Pflueger after excessive bulldozing on their property caused a massive landslide in November 2001 that smothered the reef at Pila‘a Bay in North Kaua‘i. While the money took a decade to collect, the state won $8 million in its lawsuit over coral damages.
“Luckily [Facebook founder Mark] Zuckerberg purchased the property and they paid us promptly,” he said.
More recently, the OCCL recommended approval of the controversial Conservation District Use Permit for the Thirty Meter Telescope on Mauna Kea. While he declined to delve into that case because “there are probably too many sensitive issues,” he said he believed his office “came out with our best shot. It was fair and reasonable. At the end of the day, who knows what’s going to happen.”
Lemmo is perhaps most widely known for his work on beach protection and climate change issues.
With the creation of the OCCL, which grew out of the DLNR’s Land Division, “we sort of developed a beach conservation program for the state,” he said.
When he, former DLNR director and current state Supreme Court justice Michael Wilson, and the University of Hawai‘i’s School of Ocean and Earth Science and Technology associate dean Chip Fletcher wrote the state’s coastal erosion management plan in the 1990s, “we didn’t know at the time that sea level rise would be such a major problem for us.” Since then, cases regarding unauthorized shoreline hardening have come to the Land Board with increasing frequency and have resulted in thousands of dollars in fines.
Board member Chris Yuen said he believed that Lemmo was leaving the OCCL in good hands, having instilled values and good practices in his staff. “You recognized to do your job, you have to have the guts to say, ‘no,’” Yuen said.
Board chair and DLNR director Suzanne Case noted that the OCCL did not exist until Lemmo helped create it. In addition to overseeing activities on mauka Conservation District lands and along the states shorelines, the OCCL has fostered and shaped the state’s climate change mitigation and adaptation efforts.
Together with consultant Tetra Tech, Inc., the OCCL wrote the Hawai‘i Sea Level Rise Vulnerability and Adaptation Report in 2017, which identified the areas around the state that will be exposed to the effects of rising seas. That report has served as the basis for recent legislation and state and county policies affecting real estate transactions, community planning, development, and more.
“You were a pioneer,” Case told Lemmo, adding that he was going to be a very tough act to follow. “Your ability to carry us into this new world is foundational.”
Board Renews KIUC Permit
On December 10, despite two requests for a contested case hearing, the Land Board approved the continuation of the Kaua‘i Island Utility Cooperative’s revocable permit to divert water from Wai‘ale‘ale and Waikoko streams into its Waiahi hydroelectric plant.
The utility has been working for years toward securing a long-term lease for the water and has been relying on the annual renewal of its month-to-month permit.
In recent years, community groups have objected to the diversions, arguing that they left portions of the streams dry and impeded the exercise of constitutionally protected traditional and customary native Hawaiian practices.
In 2018, to address those concerns, the Land Board included permit conditions establishing minimum stream flows — 4 million gallons a day in the north fork of Wailua River (Wai‘ale‘ale Stream is the west branch of the north fork) and 800,000 gallons a day in Waikoko Stream. Those amounts were based on recommendations made that same year by staff with the state Commission on Water Resource Management for proposed interim instream flow standards (IIFS) for the two streams.
A commission decision on the IIFS has been held up in a contested case hearing. In the meantime, storm damage to the water diversion system has resulted in KIUC diverting no water from the two streams for two and a half years.
At the Land Board’s December meeting, Earthjustice attorney Leina‘ala Ley, representing Hui Ho‘opulapula Na Wai o Puna, testified in opposition to the permit renewal. She, and others, pointed out that KIUC obviously did not need the water, since it hasn’t diverted any for the last two years because of a damaged siphon. And even if KIUC were able to resume its diversion, she argued that the water should be left in its streams of origin, rather than be diverted to another stream.
Ley pointed out that when running at full capacity, the Waiahi hydropower plant provides less than 1 percent of the electricity KIUC generates. And the electricity gained from the two streams is even less than that.
“We have a whole host of instream uses affected by these diversions. Of all the streams used by the Waiahi hydros, these two are the only on public lands. … KIUC has asserted electrical needs that don’t seem to be there,” she said.
Board member Chris Yuen questioned Ley about why Earthjustice had chosen to oppose the diversion of water for renewable energy production.
“Earthjustice is a firm that takes on what it believes are environmental cases in the public interest. Earthjustice has evaluated the environmental effects and decided in its view the negative effects of removing water from streams outweighs positive effects?” he asked.
Ley said that her firm does have a clean energy policy in which matters of equity are considered. Given that the plant provides less than 1 percent of the island’s electricity, “in this instance, the balance of competing uses is in favor of keeping water in the stream,” she said.
Yuen reminded Ley that the board had tried to address instream uses three years ago by setting minimum flows. With 4 mgd in the north fork of Wailua stream “it has little pools and rapids,” he pointed out.
“On the other hand, as far as the environmental benefits of renewable energy, I’ve been involved in environmental issues for 50 years. … The need to get off of fossil fuels and transition to renewable energy is by far the most important issue on the planet. And you keep saying this is only 1 percent of Kaua‘i’s energy generation. To get off of fossil fuels is going to take a millions of small actions, from people weather-proofing their houses to putting solar panels on their roofs to giant solar farms and wind farms and who knows what else. What is lost specifically that justifies not putting the production of clean, renewable energy as the priority?” he said.
Ley replied that the flows the board is requiring be left in the streams is only 30 percent of their median flow, “which is pretty low.”
“For some of our clients, Wai‘ale‘ale in particular, these are considered sacred waters and different from other streams. … These waters have cultural value in and of themselves. I hear what you’re saying on balancing the energy produc- tion needs, but KIUC has been operating without these for two and a half years,” she said.
Yuen said he was concerned about Ley’s statement that for some of her clients, the water is sacred. “That to me is a religious statement. As a member of a public body, I don’t see how I can prioritize someone’s religious belief that the water should stay in the steam over a use that’s very important to the general public: the generation of electricity through renewable energy. Are your clients saying it’s absolutely wrong to divert water from this stream for any purpose?” he asked.
“Yes, some,” she replied, adding that others whose practices depend on flowing water also object.
Kaua‘i resident Debbie Lee-Jackson testified that she came from a family of healers. “To speak to what Mr. Yuen said, our traditional and customary rights do include how we feel spiritually about the water. Restricting the flow of water in the Wai‘ale‘ale Stream negatively affects my ability to engage in spiritual practices. … Please don’t continue to violate our traditional and constitutional rights,” she said.
Yuen made a motion to approve the permit, which was seconded by member Doreen Canto. Ley then asked for a contested case hearing. Bridget Hammerquist of the group Kia‘i o Wai‘ale‘ale had also requested one earlier in the meeting.
After meeting in executive session, the board voted unanimously to deny their requests.
Before the board’s vote on the permit itself, Yuen encouraged KIUC to improve its management of the diversion system to eliminate some of the community opposition.
Although the Waiahi plant was a relatively small part of KIUC’s portfolio, Yuen noted that it is able to prevent 6,900 tons of carbon dioxide a year from being released into the atmosphere.
The board ultimately voted to approve the permit, although member Kaiwi Yoon abstained.
— Teresa Dawson
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