Board Denies Permits For Hololani Revetment
In a 4-3 vote, the state Board of Land and Natural Resources denied a recommendation to amend a 2018 board action to include approvals of a construction right-of-entry permit for a rock revetment fronting the Hololani Resort Condominiums in West Maui, as well as a revocable permit for the use of state land.
Back in May 2014, the Land Board voted to approve a Conservation District Use Permit for a sheet metal/revetment project to protect the two eight-story buildings that make up the resort. Although the board had a policy against shoreline hardening, a report by the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands stated that the north tower would likely be uninhabitable in the near future without protection.
The quality of the beach also played a factor. “If this was a dune system, I would not be sitting here,” then-OCCL administrator Sam Lemmo told the board at the time.
On January 12, 2018, after the condo secured a Special Management Area permit and a shoreline setback variance from Maui County, the Land Board approved the issuance of a 55-year non-exclusive easement for the planned seawall and revetment, as well as a management right-of-entry permit for the structure.
“However, due to staff oversight and inadvertence, staff did not specifically include a recommendation for a construction type of [right-of-entry]. Due to the timing of the high surf season, Applicant had planned and wanted to start construction of the revetment no later than May 10, 2018, well before any easement could be executed. Staff respectfully apologizes to the Applicant and this Board for this oversight, which has resulted in an undue 10-year or so delay in the project,” a December 13 report to the board by the DLNR’s Land Division states.
The board deferred taking action on a recommendation for a construction ROE permit at its March 23, 2018 meeting after failing to secure a majority decision to approve or deny.
“The Applicant has been unable to obtain legislative approval for the easement. At least one of the comments from a member of the Water and Land Committee overseeing the legislative approval of submerged lands dispositions was that they had wanted the Land
Board’s approval of the construction ROE and easement before the Legislature decided on whether to approve or disapprove the easement request,” the Land Division report states.
With the future of the revetment in limbo, the Hololani decided in 2019 to construct the revetment on its own property, just inside a temporary sandbag revetment. With the county Planning Department’s blessing, a sheet pile bulkhead was installed. Community groups sued in Circuit Court. After a court-ordered mediation, the parties reached a settlement resulting in the delay of revetment construction for five years to allow for the environmental review and permitting for a regional beach nourishment project. Under the settlement, the community groups agreed not to oppose Hololani’s efforts to extend its CDUP, which it did on May 8, 2020.
“The Applicants five-year deferment period for the Revetment expired in February
2024, without significant progress made on the beach nourishment project. According to the Applicant, there is disagreement between the State, County and private condominiums regarding who will be responsible for the ownership and maintenance of the T-groin structures that will serve to hold the sand in place. Applicant is requesting approval of a construction and management right-of-entry and revocable permit to allow them to start construction of the Revetment before May 2025 in order to complete construction before the winter swells arrive,” the Land Division report states.
A Second Attempt
At the board’s December 13 meeting, the Land Division again brought forth a recommendation to amend the right-of-entry permit to allow for construction. It also recommended approval of a month-to-month revocable permit for the use of state land.
“[I]f the ROE and RP are approved, Applicant may proceed with construction of the Revetment at its own risk, and the Board may require removal the Revetment if the Applicant does not obtain legislative approval of the easement,” the division’s report states.
“Theyʻre going to pay rent and provide a removal bond,” Ian Hirokawa, special projects coordinator for the Land Division, told the board. “The desire is to get the sandbag revetment out. Itʻs not good for the shoreline,” he added.
Board member Kaiwi Yoon asked whether allowing construction of a rock revetment before legislative approval of an easement for it wasn’t putting legislators in an untenable position. “Otherwise, you gotta rip everything out. Itʻs messy,” he said.
“It is,” Hirokawa replied, then repeated that “the applicant bears the risk.”
Yoon said that in addition to the mess, he was also concerned about how the board’s approval of the division’s recommendations would look.
“We fined owners a considerable amount of money for armoring their properties. I think this sends a schizophrenic or unclear message,” he said.
Board member Riley Smith agreed about the messy appearance, but added that the Hololani situation was different from shoreline hardening violation cases that the board has dealt with, in that the condo had obtained necessary approvals.
Board member Vernon Char also noted that the revetment was expected to help protect the adjacent Honoapiʻilani Highway from erosion.
‘Things Changed’
Testifying in support of the Land Division’s recommendations, attorney Pamela Bunn, representing the Hololani, explained that the condo is merely “looking to replace one armoring structure with a smaller, more benign, safer structure. Right now there are massive sandbag revetments in front of the property. They are bigger than what the rock revetment will be. They are harder to remove. They are less safe for public access up and down the shoreline.”
Jim Barry of Sea Engineering, which designed the proposed rock revetment, added that it would help protect the highway, which curves very close to the erosion scarp. Also, a drainage easement just north of the condo has a history of clogging with sand and causing the highway to flood.
He said the revetment design, which includes a new drain, would solve that problem. He added that critical infrastructure at stake includes more than the road. It includes drainage, sewage, and water lines, as well as electric and telecommunication poles along the highway.
“All of that is at risk if this area is allowed to erode,” he said.
Board chair Dawn Chang said that her department wants private landowners to consider building their shoreline hardening structures on their properties, not on public beaches.
Barry replied that the Hololani was not allowed to protect its property until the shoreline got to within 20 feet of the buildings, which was the OCCL’s threshold at the time for allowing emergency sandbags.
“As a coastal engineer, it’s really hard to do anything within that 20 feet. … Our structure is pushed back as far as it can. There’s an underground parking garage there that is just barely not at risk because of what we’ve done. So our hands are tied. … The only thing you can build by the way this came about on private land is a vertical wall, which is not what we want to do,” he said.
“That’s a fair statement,” Chang replied. Still, she continued, “the problem is many landowners knew more than 20 years ago that this was inevitably going to happen. So you wait until prices, yes, you have very few options. … We see what’s happening at Kaʻanapali, Kahana, actually, statewide. … We would ask that all landowners start looking in a proactive way rather than waiting for a crisis to occur.”
Barry pointed out that on the shoreline fronting the Hololani, “things happen quickly. It may go for years without a lot of change. All of a sudden over a weekend you lose five feet of property. And Hololani, in one area, it was 10 feet, essentially over nine. It happened very quickly. You have do something.”
OCCL administrator Michael Cain ran through the history of the project, noting that the Land Board approved it before the recent passage of Act 16, which prohibits private shoreline hardening structures in areas with sandy beaches.
“I just wanted to clarify that we are operating under a permit that was passed under previous rules, previous statutes. I hear the concern about the board sending a double message, but sometimes we do have to act on permits that we wouldn’t have recommended today,” he said.
“Yeah Michael, but smoking was allowed indoors. Things changed. So things change,” Yoon replied.
Board member Char asked whether the Land Board, in approving the amendments, would be “creating any precedents for you on any other matters that would come back to us.”
Cain said he didn’t think so.
Yoon later asked Cain, “Can you please remind us why the state no longer supports armoring the coast?”
“We’ve known for over 100 years that shoreline armoring can negatively impact beach properties by impounding sand and by inhibiting the natural motion of sand. Beaches are dynamic. They’re meant to move. … The territorial government actually banned shoreline armoring in 1917,” Cain explained.
“Somebody forgot to tell this board in 2018,” Chang quipped.
Several unit owners at the Hololani testified in support of the Land Division’s recommendations. They described how the sandbags are deteriorating and are a danger to people who attempt to walk on them and marine life that gets entangled in them.
Several members of the public, including representatives from the Maui chapter of the Surfrider Foundation and the non-profit Kamalu o Kahalawai, testified in opposition.
Hannah Lilley, Hawaiʻi regional manager for the Surfrider Foundation, testified, “Shoreline armoring like the proposed 400-foot rock revetment at Hololani exacerbates erosion on an already chronically eroding shoreline.” She said that the structure would, contrary to what proponents say, impede beach access.
Granting the construction ROE permit would fly in the face of the purpose and principles of Act 16, she continued. “Yes, the seawall and sandbags were approved prior to Act 16, but replacement and construction of new rock revetments would continue prevention of lateral public access and continue to accelerate erosion,” she said. “Granting this ROE and RP could set a really dangerous precedent for private ocean front landowners to follow suit.”
Community activist Kai Nishiki, added, “The state of Hawaiʻi must stop approving shoreline easements, which is just a fancy, innocuous-sounding word for what it really is: selling off pieces of our public beaches to resorts, in this case longer than a football field.”
After hearing from the public, board chair Chang continued to press Barry about the possibility of keeping the revetment on Hololani’s land.
Barry said that an earlier design included a vertical seawall on private land. “We could have done that from the beginning, but we discussed with OCCL the advantage of adding the lower rock revetment [to] reduce reflection of the shoreline and, thereby, help promote beach accretion. Just a vertical sheet pile has twice the amount of wave reflection. …
“OCCL preferred this [current] design. And we knew from the outset that the revetment would be on state land. It has to be. The wash of the waves, no matter where we put it, the wash of the waves is at the vertical wall,” he said.
Despite the close proximity of the metal sheet to the Hololani’s underground parking garage, board member Yoon, an architect, was not convinced that the revetment could not be moved inland. He suggested that the condo would just have to sacrifice parking stalls.
“It would flood,” Barry replied.
“You would lose the buildings. The parking garage holds one of the buildings,” Bunn added.
“There are ways. It would cost money. You could do it,” Yoon said.
Barry disagreed.
“This is obviously a very different board from 2018,” Chang later said. “Our mission is really to preserve and protect natural and cultural resources, public access. And I’m always struggling with how do we find that balance. …
“I don’t want to belabor this. We’re very challenged here, looking for longer-term solutions, rather than this piecemeal,” she said.
Barry said that the number of solutions is limited, noting that even a beach nourishment project would require “stones going in.”
Bunn added that long-term solutions “cannot be one size fits all.”
“We all know Sam Lemmo was no pushover. He specifically sited things unique to the property. Even if you took away the buildings, you took way the sandbags, there’s not going to be a beach there. …. The alluvial soil just calves out and dissipates. It’s very unlike, say, the North Shore of Oʻahu, where the shoreline recedes, there’s sand behind it,” she said.
In the end, Maui board member Doreen Canto made a motion to deny the Land Division’s recommendations. Yoon seconded the motion.
After an executive session to discuss legal matters with its deputy attorney general, the board voted to approve Canto’s motion. Board members Smith, Char, and Kauaʻi’s Karen Ono voted in opposition.
“I know this was not what you had hoped for or anticipated. I’m hoping you’ll come back with some creative solutions for us,” Chang told Barry and Bunn.
To which Bunn replied, “The next time we’ll be back will be for more sandbags.”
Board Denies Contested Case On 2024 Stream Diversion Permits
On December 13, about a year after the Sierra Club of Hawaiʻi requested a contested case hearing on revocable permits allowing Alexander & Baldwin, Inc., and East Maui Irrigation Co., LLC in 2024 to divert East Maui streams to Central and Upcountry Maui for agricultural and domestic uses, the Land Board finally took up the matter of whether the conservation organization should be granted one.
The group has long argued that the Land Board allocates more water than is necessary and allows the excess diverted water to be wasted while leaving several East Maui streams dry for most of the year.
The Hawaiʻi Supreme Court heard arguments in November over whether the board should have granted the Sierra Club’s contested case hearing request over permits granted to the companies in 2020. The court had not issued a decision by the time the Land Board met to decide — belatedly — on the Sierra Club’s contested case hearing request made in 2023, as the board considered the permits for the following year.
Ian Hirokawa, special projects coordinator for the DLNR’s Land Division, recommended that the Land Board deny the request. He made some of the same arguments the state’s attorney made before the Supreme Court. He said that many of the issues the Sierra Club raise fall under the jurisdiction of the Commission on Water Resource Management, not the Land Board. Also, he added, “the history shows has there’s been extensive due process on these issues, going back, really, decades.”
Before addressing the Land Division’s statements, David Kimo Frankel, the attorney representing the Sierra Club, took issue with the timing of the agenda item.
“A little bit of bad faith. Actually, not a little, but a lot of bad faith for you folks to wait a year to take up this agenda item. That’s not cool. 2024 is about to end. This is a request for a contested case hearing for the 2024 revocable permit. That’s bad faith,” he said.
Addressing the Land Division’s version of past efforts to deal with the concerns surrounding East Maui water diversions, Frankel called it “false, revisionist history.”
“Let me deal with Ian’s main point, which is this board’s authority. It’s actually false. First of all, the Legislature gave you the authority in [Hawaiʻi Revised Statutes Chapter] 171-55 to condition your approval with the best interest of the state.” He pointed to a Hawaiʻi Supreme Court decision on a case involving challenges by East Maui residents to the revocable permits issued to A&B and EMI. In that case (Carmichael v. Board of Land and Natural Resources), Frankel said, the court recognized that the Land Board’s duties include protecting streams.
he added that a decision made decades ago by 1st Circuit judge Eden Hifo regarding East Maui stream diversions determined that the Land Board cannot simply rubber stamp everything the Water Commission does.
“You are not a) bound by that and b) you have a public trust duty that’s imposed,” he said.
“Moreover you folks decided, before any of you were members of this board, that [for] Honomanu stream … no water can be diverted. You already voted to protect one stream before. In 2007, you did the same thing with Waiokamilo [stream]. You can’t say you have no authority when you’ve exercised that authority before.
“In any case, you certainly have the authority to ensure that water is conserved, that it’s not wasted. That is your authority,” he said.
He said it wasn’t worth it now to recount the reasons why a contested case hearing was required for the 2024 revocable permits, but that he hoped board members had a chance to listen to the recent oral arguments before the Supreme Court.
“It should be abundantly clear to all of you that a contested case hearing is required,” he said.
“To your opening comment about the board, bad faith, waiting a year to agendize, the chair sets the agenda, not the board. Let’s just get that clear. … I’m not throwing her under the bus. It’s a fact,” board member Kaiwi Yoon told Frankel.
“He’s throwing me under the bus,” Chang interjected.
After the board had a good laugh, Yoon asked Frankel his opinion on the Land Board’s authority and how it relates to the Water Commission’s.
Frankel explained that the Water Commission has exclusive authority to determine instream flow standards. In the case of East Maui, the Land Board “can say, ‘We want more water left in the stream because it’s not justified to take out’ or you can say, ‘We want this water used more efficiently than it is.’ You have that authority. The Water Commission does not have that authority at all. In fact, right now, the Water Commission completely lacks the authority to require that reservoirs be lined. You folks have that exclusive authority. You folks set how much water can be taken per day for various uses. Not the Water Commission. All the Water Commission decided in this circumstance is how much water, at a minimum, should be left in each stream.”
Despite Frankel’s arguments, the Land Board approved a motion by member Vernon Char, seconded by Doreen Canto, to accept the Land Division’s recommendation. Board member Aimee Barnes voted in opposition. Yoon abstained.
Board Denies Sierra Club a Contested Case, Renews East Maui Water Diversion Permits
“I just like to tell one short story. Gon’ be real short. So back in the early ‘90s, had this one old man that used to work for EMI. He used to come into our village every week, every other week. And we get one waterfall called Waikane in our village. And every week, he come in, and we was always wondering like, ‘Eh, how come? How come he stay over here?’ And then finally, maybe after six months, we never seen him again. We also never see our water come down that waterfall again. So you know, putting into perspective the harm and the hurt we had to live through, whatever decision you guys make, I hope you guys keep the people of Keʻanae and Wailuanui in you guys’ thoughts. We the ones who had to suffer through all these years and we no like suffer again. Thank you guys for you guys’ time. I appreciate it.”
With that, Jerome Kekiwi, Jr., president of Na Moku Aupuni O Koʻolau Hui, ended his testimony before the Land Board at its December 13 meeting. At that meeting, the board took up a recommendation from the DLNR’s Land Division to issue a permit to Alexander & Baldwin, Inc., and East Maui Irrigation Co, LLC, (EMI) for the continued diversion of millions of gallons of water a day from East Maui streams for agricultural, domestic, and other purposes in Central and Upcountry Maui.
Decades years ago, Na Moku and other native Hawaiian kalo farmers from East Maui requested a contested case hearing on permits that, at the time, were annually renewed to allow A&B and EMI to keep diverting water. They also petitioned the state Commission on Water Resource Management to amend the interim instream flow standards of 27 East Maui streams upon which they relied.
At the Land Board’s December meeting, attorneys and representatives of Na Moku and the Sierra Club of Hawaiʻi complained that the proposed permit would allow EMI co-owner Mahi Pono to take more water than it needed and to increase its water use for diversified agriculture in Central Maui over the course of the permit term. Meanwhile, requirements imposed years ago by the Water Commission to modify diversions to allow for restoration of certain streams have gone unmet. They also complained that the amount recommended to be diverted to Maui Department of Water Supply — at least 5 mgd — was also excessive.
The Land Division had proposed allowing Mahi Pono to divert a monthly average of up to 3,263 gallons per acre per day for diversified agriculture. The amount was based on a three-month average of the company’s irrigation needs last year.
“Nā Moku opposes any proposal allowing further increases in the water diverted out of East Maui for diversified agriculture without proper vetting by the Board at a public meeting and unless and until A&B/EMI can show they have complied with prior orders of CWRM by physically addressing diversion modifications and system losses,” wrote Native Hawaiian Legal Corporation attorney Ashley Obrey on behalf of Na Moku.
She added, “To allow automatic upward adjustments in allocations based on reported acres planted by a third party without further scrutiny of the Board is not only irresponsible resource management but is also an unconstitutional abuse of the Board’s vested power, especially where there is no set cap on the total amount of water allocated.”
She also argued that the Land Division had failed in its duty to analyze how the proposed permit affected native Hawaiian practices.
At the board meeting, Land Division special projects coordinator Ian Hirokawa explained that by his calculations, the system loss rate is 20.9 percent, which is lower than the 22.7 percent rate recommended for the permit.
He added that reducing the amount allowed to be diverted to the Maui Department of Water Supply from 7.5 mgd in 2024 to 6 for 2025, “that would lower the system loss rate even further.”
Board member Vernon Char said he did not think the board should engage in “further tinkering” to address the concerns raised. He preferred to just keep the status quo and allow the county’s new East Maui Water Authority to iron things out.
“Those are issues beyond us,” he said. He added that he thought the accusations of water waste were unjustified and based on “bad evidence.”
Mahi Pono senior vice president Grant Nakama testified that he thought the per-acre-per-day cap should be an annual average, not a monthly one, to allow greater flexibility. He also thought the cap should be higher — at least 3,764 gallons per acre per day — as the Land Division’s proposed cap was not based on the months in 2024 with the highest irrigation needs.
He also said that a proposed condition requiring Mahi Pono to test how long it takes one of its reservoirs to lose all of its water was “highly impractical.”
When it was the Sierra Club’s turn to testify, its attorney, David Kimo Frankel, shifted the focus to water needs in East Maui. He held up a large photo of a bone dry East Maui stream, Hoʻolawaliʻiliʻi.
“It still looks like this 70 percent of the time. All of the water from the stream is taken 70 percent of the time. When it rains a lot, the stream could pass through these gates,” he said, referring to slats in a grate covering diversion in the stream that drains into EMI’s ditch system.
The Water Commission ordered years ago that the diversion, along with dozens of others, be fixed, he continued. “They have not been. … There are people who live and depend on these streams. They can’t take any water most of the time. … people who would like to be growing kalo who have no water,” he said.
Regarding Mahi Pono’s requests, he told the board — and specifically, member Char, “They want to expand their operation while people are suffering. That is wrong. Vernon, that is wrong. Not only are people deprived of water … they [Mahi Pono] are wasting millions of gallons a day and we can prove it.”
He noted that the Sierra Club and the Maui DWS came to an agreement to support a condition amendment that would cap the amount of water delivered to the DWS at 5 mgd, with occasional exceptions.
“That saves a million gallons a day,” he said.
Debates over whether groundwater use should be encouraged and how its use should or should not affect Mahi Pono’s water allocation ensued. Frankel also pushed for a condition requiring the lining of at least one reservoir by the end of November.
“If you folks don’t take these issues seriously, we will request a contested case hearing before you vote,” Frankel said.
Sierra Club chapter director Wayne Tanaka later added, “Kupuna that started this all have passed away,” referring to the East Maui taro farmers who petitioned the Water Commission and Land Board decades ago for stream restoration. “Their rights have been vindicated, but they’re gone. … There is a real reason why people feel that this is an unfair situation,” he said.
Gina Young, director for the East Maui Water Authority, testified that her agency has convened negotiations with the parties involved. She asked the Land Board for patience. “We’re not experts … We’re just people,” she said.
“Your end goal is to come up with a joint agreement … that you bring back to the board?” board chair Dawn Chang asked.
“It may not be one agreement. We would have to figure out how it works best for the state,” Young replied. She added that EMI has the expertise to operate the diversion system. “At this point it’s important they remain in control of the delivery system. We would like support them,” she said.
Before the board’s vote, Ayron Strauch, a hydrologist with the Water Commission, tried to explain why the fixes to the diversion system are still undone.
“Mahi Pono has to apply for stream diversion works permits [from the commission]. We’re not the only agency that regulates things that happen in the stream. Any activity in the Conservation District needs a [permit]. [The State Historic Preservation Division] actually has to concur with whatever CWRM’s orders or decision are. We’ve waited years for SHPD approvals,” he said, adding that the U.S. Army Corps of Engineers also has to opine.
Frankel pointed out, however, “They waited a year or so before applying to SHPD. That’s on them.”
In the end, Maui board member Doreen Canto made a motion to approve the permit, with the Sierra Club’s proposed amendment regarding the allocation to Maui County, and Mahi Pono’s proposed amendment to make the cap an annual average. Her motion also included a deduction of 1 mgd from the allocation to Mahi Pono, which was a “compromise” that the company agreed to in exchange for the change to an annual cap. Finally, her motion included an amendment adding the Department of Hawaiian Home Lands and the state Aha Moku advisory council to a list of parties involved in stakeholder meetings, which would be convened by the county water authority.
Before the board could vote, Frankel requested a contested case hearing. After an executive session to discuss matters with its attorney, the board voted to deny the request, and then voted 5-0 to approve Canto’s motion. Board members Kaiwi Yoon and Aimee Barnes had left the meeting by then.
— Teresa Dawson
Leave a Reply