Board Talk

Maui Wind Farm Disputes Damages,
Get Reduced Fine For Gulch Dump

The access road to the long-awaited wind farm at Ukumehame, Maui, being built by Kaheawa Wind Power, LLC, broke ground last September – a little too much ground.

Four months later, the Board of Land and Natural Resources fined the company $2,000 for unauthorized road widening, $2,000 for the spoiling of a slope and gulch with dirt and rocks from the road cut, and $7,100 in administrative costs, for a total of $11,100.

Problems began September 1, when KWP began grading the access road to its ridge-top wind farm site. One of the conditions of KWP’s Conservation District Use Permit requires the company to deposit all excess construction materials in a county landfill and minimize ground disturbance to reduce the potential for erosion in and around gulches.

But when Maui land agent John Ornellas visited the site on September 23 and 26, he found what appeared to be excessive grading and a number of other possible permit violations. With Hurricane Kenneth approaching the islands, the Department of Land and Natural Resources, worried about potential runoff from the storm, ordered KWP to cease and desist work at the site on September 28.

Testimony submitted to the Land Board by KWP states that company representatives met that day with local DLNR and Department of Health agents, where “it was learned that the construction drawings approved by the DLNR and the National Pollutant Discharge Elimination System permit had not yet been reviewed by local DLNR representatives. This created quite a bit of confusion for the DLNR representatives regarding what was being built and what the plans represented.” (KWP’s permit requires activities to be within the project area as identified in the CDUP application and the final environmental impact statement. Plans for the road did not follow this condition, but were approved anyway by DLNR director Peter Young last August.)

In any case, all agreed that KWP should immediately develop and implement a remediation plan to bring the work back into conformance with the permit. KWP, at DLNR’s request, provided a $200,000 bond to guarantee compliance and completed its work in early January.

At the Land Board’s January meeting, the DLNR’s Office of Conservation and Coastal Lands did not address the road alignment confusion, but noted that KWP had widened its road to 30 feet in places – double the maximum approved width of 12 to 16 feet. What’s more, the OCCL stated in its report, KWP had not properly disposed of its grading spoils and instead had pushed them over a slope and into a gulch.

At the Land Board’s meeting, Maui attorney and former DLNR administrator Gilbert Keith-Agaran, testifying on behalf of KWP, admitted that the soil dump was an “inadvertent error” made by one of its contractors. However, he also noted that the KWP acted quickly to remedy the error, and that the road, which cost $6 million to build, “provides a tremendous public service and safety benefit for the state…”

In its testimony to the Land Board, KWP asked to pay only the administrative costs incurred by the DLNR, and not any punitive fines, since the damage, it claimed, had been repaired.
The OCCL, on the other hand, was proposing a fine of $8,350 for damages to state land caused by the dumping of construction spoils into the gulch – a figure based on an engineer’s estimate of remediation costs.

At the meeting, OCCL administrator Sam Lemmo explained that his office did not intend to require remediation in the gulch because of “technical difficulties” and the possibility that doing so could cause additional damage. However, Lemmo felt remediation costs could be used as a proxy for damages (as had been done in a coral reef damage case in Pila`a, Kaua`i).

At-large Land Board member Tim Johns (whose employer Damon Estate had once been required by the Land Board to devise and implement a $200,000 restoration plan for an illegally logged forest in south Kona) disagreed with Lemmo’s recommendation.
If the DLNR is not going to pursue remediation, Johns said, it calls into question whether there was any damage to state land in the first place. Johns recommended that the Land Board approve OCCL’s recommendations, except for the $8,350 fine for the gulch dumping, which he wanted reduced to $2,000, the maximum for a single violation. Johns’ motion was unanimously approved.

Habitat Conservation Plan
Following the board’s action on the violations, the DLNR’s Division of Forestry and Wildlife presented for approval KWP’s Habitat Conservation Plan.

The Hawaiian petrel (`ua`u), the Newell’s Shearwater (`a`o), the nene, and the Hawaiian bat, `ope`ape`a, are all federally listed endangered species found around the Ukumehame site of KWP’s wind farm, which when complete will include 20 turbines.

According to DOFAW’s report to the Land Board, despite mitigation measures to be implemented by KWP, DOFAW expects the wind farm may harm or kill up to two `ua`u, two `a`o, three nene, and one `ope`ape`a every year over the 20-term of the company’s proposed Habitat Conservation Plan.

Under the HCP, the wind farm will establish a $100,000 seabird contingency fund, which is to cover costs of surveys and management needs of nesting colonies of `ua`u and `a`o in West Maui, or elsewhere, if necessary. KWP will also establish a $264,000 nene contingency fund for the construction, maintenance and operation of a nene release pen for five years. If this proves insufficient to mitigate the wind farm’s impacts on nene, KWP will pay for another pen.

As for the `ope`ape`a, it is known to live in the project area, but has not been found in recent surveys. For its bat contingency fund, KWP will contribute $20,000 towards research on the bat’s habitat requirements. If the wind farm kills or harms more bats than expected, KWP must provide additional funds for more research and/or management.

The Land Board unanimously approved the plan and the accompanying incidental take license and implementing agreement (a document that binds KWP to the requirements in the HCP and assigns the responsibilities for creating and implementing mitigation).

* * *
NARS Proposes Rules
To Fix Enforcement Gaps

The state’s Natural Area Reserves are supposed to be the most pristine, and therefore most highly protected, lands owned by the state. But over the years, as the DLNR has tried to control such harmful activities as squatting, poaching, and other forms of resource damage – particularly at Maui’s `Ahihi-Kina`u NAR – the Natural Area Reserve System’s rules have proved inadequate.

Last year, the DLNR struggled to remove a woman who had made a home for herself in a cave at `Ahihi-Kina`u because NARS rules don’t specifically prohibit doing so. And because NARS rules allow hiking and nature study, the NARS Commission has been unable to get the Land Board to stem the flood of visitors walking into the reserve and possibly damaging rare anchialine pools and corals.

The NARS rules also don’t prohibit the possession of fishing equipment in a reserve. And at `Ahihi-Kina`u, the state’s only coastal reserve, poaching of fish and `opihi, a native limpet, have been rampant, despite rules that ban the taking of animals from the reserves.

Rules for the state’s Marine Life Conservation Districts ban the possession of fishing equipment while in those areas. Because the NARS has no similar rules, “the department cannot prevent harm, but must wait until someone has already caught fish before citing the illegal activity,” states a January Division of Forestry and Wildlife report to the Land Board.

At the Land Board’s January meeting, DOFAW, which administers the NARS, recommended several rule changes that grew out of a September 2005 workshop with NARS commissioners and staff. The changes, if approved, would do the following:

• Remove bedroll camping as a permitted activity;
• Limit hiking and nature study as permitted activities for groups of ten or less and prohibit activities by larger groups;
• Specify that permitted activities may be limited in closed reserves or where visiting hours have been established, and prohibit presence in a closed area or after visiting hours;
• Allow service animals to accompany their masters;
• Specifically prohibit the establishment of residences;
• Prohibit the possession of tools, equipment, or implements used to take, injure, or kill marine life, plant life, or wildlife;
• Specifically prohibit anchoring in marine waters within a NAR;
• Prohibit entry into any cave in a NAR;
• Prohibit actions in a NAR inconsistent with the purpose and intent of the NAR system;
• Authorize the Land Board or its representative to establish visiting hours and to close or restrict public use of all or a portion of a NAR for up to two years, when deemed by necessary by the NARS Commission for the protection of the natural, geological, or cultural resources of the safety and welfare of persons or property; and
• Set forth various conditions, limitations, and requirements for special use permits.

The Land Board approved DOFAW’s request to proceed with the rule changes, including holding public hearings.

* * *
Board Fines Puna Couple
For Illegal Clearing

At the Land Board’s January meeting, Office of Conservation and Coastal Lands administrator Sam Lemmo told the board that according to his enforcement report, Puna residents John and Maureen Gapp stated in 2003 that a friend had graded a beach path and excavated a saltwater pool as a favor to them.

At that meeting, the Gapps were faced with paying $8,000 in fines for illegal grading, rock removal (to create a pond), tree removal, and pathway construction in the Conservation District portion of their property. The OCCL was also asking that the Land Board fine the Gapps for $1,000 in administrative costs.

OCCL’s report on the incident states that over a couple of weekends in December 2002 and January 2003, the Gapps, with the help of an unnamed excavator operator, cleared trash, debris and alibizia, hala and other trees from their property. On January 5, 2003, a DLNR enforcement officer, responding to a complaint that grading had been occurring within the Conservation District, inspected the property and found that an area 140 feet long and 75 feet wide had been cleared some 70 feet from the shoreline; rocks and plant debris had been piled along the edge of the clearing; a hole 10 feet wide and 10 feet deep had been dug at the south end of the cleared area; a path approximately 70 feet long and 16 feet wide had been graded from the cleared area to the shore; and that piles of what appeared to be coral- and seaweed-encrusted rocks were piled on both sides of the path.

During the course of the DLNR’s investigation into the Gapps’ activities, Maureen Gapp explained that she knew her property was in the Conservation District, but did not know what activities were prohibited there. Correspondence on file at the DLNR show as she visited state and county offices in 2002 to find out more about her property, she had confused the state Land Use Commission, which determines district boundaries, with the state Department of Land and Natural Resources, which administers the Conservation District.

In November 2002, she had called LUC executive director Anthony Ching to learn more about the Conservation District portion of her property and later received a map and a letter from Ching stating that the Conservation District on her property began approximately 300 feet from the shoreline.

“It was my understanding since no other information was sent that this referred to the distance from the shore, where we could build a single family home,” she wrote to the DLNR on January 27, 2003. Her letter adds that in her visits to the county planning and engineering departments, “there was no mention of SMA [Special Management Area] or state regulations doing any ground work on the property.”

A September 2004 letter from the Gapps stated that on a recent visit to the DLNR office, they had been given a book titled “Conservation District Review, Identified Land Uses and Required Permits.”

“Had I been given this book the first time I went there or had Anthony Ching (Yes, I now know it was the wrong office), told me to get this book, this whole nightmare could have been avoided. This book very clearly tells what can be done and lists the correct phone numbers for information,” Maureen Gapp wrote.

Because the Gapps have been away on medical missions in New Guinea, the Solomon Islands, and southeast Asia over the last couple of years, the DLNR did not bring the enforcement action to the Land Board until last month.

At the January 13 Land Board meeting, Mrs. Gapp disputed that she and her husband had removed rocks near the coast to create a pond. The whole coast is dotted with tide pools, she said, adding that what the OCCL said was an artificial pool was actually a natural formation.

Big Island board member Gerald DeMello seemed to believe her and in his motion to approve the OCCL’s recommendations to fine the couple, he deleted the proposed $2,000 fine for rock removal. For some reason, he also reduced the proposed $2,000 tree cutting fine to $1,000.

Despite Lemmo’s evidence that the Gapps had told a DOCARE officer that a friend had created the pool, the board voted unanimously to support DeMello’s motion.

* * *
Ka`u House Stays

“This board is not capable of doing the right thing. Truth and integrity don’t matter,” said Keolalani Hanoa, a lineal descendant of Hawaiians of Ka`u and former member of the Big Island Burial Council. Hanoa, speaking at a January 13 Land Board meeting, was referring to an OCCL proposal to allow Mary and A. David Carroll to keep their house, built among burial sites, but fine them $5,200 for violating conditions of their Conservation District Use Permit.

Last September in Kona, several members of the public, including Hanoa, called for the house to be torn down, as it had been built, they said, in violation of burial treatment laws.

“A house does not belong on a graveyard,” said Jim Medeiros of Protect Keopuka `Ohana.

The land upon which the house sits was illegally graded by a previous landowner in the 1970s. Then in February 2001, the Land Board approved the Carrolls’ Conservation District Use Permit application for a single family residence on the site. At the time, the state Historic Preservation Division supported the construction so long as it was built on the existing house pad. When construction began in 2004, it raised alarm among Ka`u residents who believed the construction was illegal. Subsequent surveys by SHPD have revealed that the house is in close proximity to burials. The OCCL found that the house was not built according to approved plans and proposed that the Land Board fine the couple for violating conditions of their permit.

Given public’s concern expressed at the 2004 Kona meeting, the board voted to defer taking action that day to give the Department of the Attorney General time to explore the board’s options for addressing any violations.

When the board revisited the item at its January meeting on O`ahu, Hanoa and a few other Ka`u residents again insisted that the Carrolls had used a D9 tractor to grade outside of the approved footprint of their house. Hanoa added that the Carrolls knew that they were building on top of native burials. Another member of the public added that the house, which sites alone in a vast field of `a`a lava, is brightly lit at night and may be affecting the endangered hawksbill turtles that are found along the Ka`u coastline. Hanoa added that recent vandalism that the Carrolls have experienced was caused by `uhane, spirits of the dead.

At that meeting, as Hanoa described the alleged desecration, Mary Carroll shook her head in obvious disagreement. Her attorney, Steve Lim, had explained to the Land Board that since the Carrolls took title to the property a few years ago, someone other than the Carrolls has been grading the `a`a surrounding the Carrolls’ property, perhaps for construction purposes. While the Carrolls admit to deviating from their Conservation District Use Permit by building two wings instead of one, and a courtyard, Lim said they do not believe their house needs to be painted a more neutral color or needs to adjust its lighting to protect turtles, as OCCL staff had suggested.

The OCCL had recommended that the Land Board fine the Carrolls $2,000 for the two violations and $1,200 in administrative costs; require the Carrolls to paint their house brown, gray or green to better blend with the landscape; and implement a light screening and mitigation plan (which could include planting vegetation, erecting a fence, and window coverings or tinting, among other things). The OCCL report did not seek any fines for grading or mention burial disturbance because it had no evidence that the Carrolls had gone beyond the 1977 footprint.

Although they did not contests the fines, the Carrolls, through Lim, stated that they would rather landscape around the house instead of paint it, and conduct a study to determine whether a lighting plan was even needed. Before making his motion to approve his staff’s recommendations, Big Island Land Board member Gerald DeMello thanked the people of Ka`u for attending the O`ahu meeting. DeMello then chose to amend his staff’s recommendations to reflect the Carrolls’ wishes regarding house painting and lighting. The amended motion was unanimously approved.

— Teresa Dawson

Volume 16, Number 8 February 2006