Board Members Question Progress Of Army Corps Ordnance Clearing
At its April 11 meeting, the state Board of Land and Natural Resources approved a right-of-entry permit to the U.S. Army Corps of Engineers for remediation work on about 4,000 acres on Oʻahu and Hawaiʻi island classified as formerly used defense sites (FUDS).
The eight properties involved — totaling about 2,000 acres on each of the two islands — are in addition to the nearly 30,000 acres that were included in a similar ROE permit granted by the Land Board last year.
Before voting to approve last month’s permit, board member Vernon Char repeated complaints he raised last year about the slow rate of progress and the paucity of information provided to the board on cleanup activities.
“It seems the authorization is only for you to go out and search and report back, not remove. … At this rate, I’m quite concerned by any future request by the feds for military training when we’ve got all these [uncleaned] areas. … What has been done in the last two years? Have you searched? Found anything? Done anything?” he asked representatives from the Corps attending the Land Board meeting via Zoom.
Benjamin Konshak, a geophysicist with the Corps, replied that the agency has done field work (i.e., transect surveys with metal detectors, sample digging), remedial investigation and design activities for shoreline areas running from approximately Anaehoʻomalu Bay up to Kawaihae Harbor on the west side of Hawaiʻi island, totaling a couple thousand acres, he said.
“A lot of these areas had cleanups in the past. We need to understand where to spend our annual funding … for future remediation,” he said. That work includes reviewing national archives material to help determine what the nature and extent of the military’s use of the land was, he added.
Going further back, he said, above Hapuna beach, hand grenades and mortars have been removed.
“Some of the transect investigation work in the last couple of years found munitions debris or parts and pieces of munitions in some areas,” he said.
He added that the Corps has also identified areas where “we have not found any evidence of use.” Specifically, he mentioned that national archive research found that Parker Ranch did not lease portions of the shoreline in the Waikoloa Maneuver Area.
“We’re building the evidence in these areas to also reduce our footprint and relieve some of the impact to the community and the landowner, as far as when you’re passing title or … developing a project, having to think about the risk of munitions,” he said.
Richard Tanaka, also with the Corps, said that at the end of 2023, it “closed out” an 11,200-acre area east of Waimea town called Puʻukapu. “We found no evidence of use. Therefore, we were able to remove that from the FUDS inventory,” he said.
Most of that land is Hawaiian homestead land.
“Your work has certified there’s no unexploded ordnance. DHHL awarded pastoral, residential, and agricultural leases at Puʻukapu over the last 40, 50 years. With your certification that there is no unexploded ordnance present, it enables the awardees … to apply for and be approved for housing and urban development and FHA loans. Is that your understanding?” Hawaiʻi island board member Riley Smith asked.
“I believe that’s the case,” Tanaka said.
Board member Char asked about the Pali Training Area on Oʻahu, where some of the lands under the ROE permits are located.
“Maunawili. I go hiking there all the time. This [area] has been on the list, been investigated for some activity, since 1943. That’s 80 years ago. And that is a current area under your ROE. Has anything been done on that or anything been planned? … Every year, we add on more areas. I see no subtraction or progress,” he said.
In 2012 and then in 2017, the Army Corps found and removed a total of 33 unexploded ordnance items, according to the Corps’ Kevin Pien.
Char asked if there was some kind of record that shows the original FUDS areas, what’s been found or cleared, and what areas remain?
Pien said there are reports documenting the work that’s been completed.
When Chang asked whether those reports come to the Department of Land and Natural Resources, Mike Ferreira of the agency’s Land Division confirmed that they do.
“I’ve been trying to get all the DVDs out of them and trying to put it on an archive so we can just look ‘em up on a database,” he said, adding that the state Department of Health also receives the reports.
“Just because they’re not answering the way you want it doesn’t mean I don’t have a report,” he said.
Board chair Dawn Chang advised the Corps representatives that in the future, they should provide the board with a report on what’s been completed since the previous right-of-entry permit was approved.
“I think board member Char raises a good point. … Give us an update on what was done over the past year so we have a running record,” she said.
Especially since the military is requesting new leases, Char added, referring to leases for training areas — at Pohakuloa on Hawaiʻi island and Kahuku, Makua, and Poamoho on Oʻahu — that are set to expire in a few years. Last month, the Army published its final environmental impact statement for its continued training at Pohakuloa.
“I’m getting more and more concerned [about] granting future leases to the military in view of this 80-year history of what went on and is still not cleared as of this date. Just as a forewarning,” Char said.
“Absolutely,” Tanaka replied. He said that the FUDS program does really want to try to make Hawaiʻi safe and appreciates the partnerships with the DLNR and others.
Board member Aimee Barnes was not particularly appeased.
“I don’t want to give you too hard of a time. I know you’re just trying to do your jobs. But also, … it’s sort of like I have an Airbnb and I have rented it to somebody and they’ve trashed the place, and they’re coming back to me saying, ‘We’d like to work in partnership with you to clean it up and also we’d like to come stay again.’ …
“You have to clean up the mess that you’ve made before anybody contemplates letting you come to stay again. And I think member Char” — at 90 years old — “has a point of view that certainly extends well before my time on just the history of the fact that these problems continue to be left unattended with little information for the board on what progress has been made,” she continued.
She encouraged the Corps to show to the Land Board what progress is being made, in “very clear, tangible language. How many acres? What are you finding? Are there areas certified as cleared? Because without that information, and just given the long history of trust-breaking between the military and folks here in the state, I think you’re going to find yourself in a difficult position when leases come up in the future. Not just from the board but from the community, who we’re already hearing from who are frankly not particularly supportive of that. …
“I know you’re already on notice on that. Please keep that in mind and help us to help you be in the best position possible when you come to us, and you can do that by being really clear about … what you’re doing and what you’re achieving.”
“Well said,” Chang added.
Board member Smith suggested that the Corps could present color-coded maps delineating all FUDS areas surveyed and those that have been cleared or need to be.
He said it was not Ferreira’s job to clearly convey the Corps’ progress to the board. “It’s the Corps of Engineers’ and their contractors’ job to do that,” Smith said.
Tanaka thanked the board members for their comments. “We do want to be responsive. … Me and members of my team, a lot of us grew up in Hawaiʻi. A lot of us do want to continue living here. … We really appreciate this input,” he said.
In response to questions from Barnes regarding concerns raised by the Office of Hawaiian Affairs about the proper care of cultural resources, Tanaka told the board that all of the FUDS projects have an archaeologist present before and after remediation activities.
The board unanimously approved a motion from Smith to grant the permit.
Board Approves Permit, Easement For Lahaina Shoreline Encroachments
As owners of shoreline lots in Lahaina who lost their homes in the 2023 wildfire seek to rebuild, some critics have questioned the prudence of allowing the return of structures that will be vulnerable to the effects of sea level rise in the foreseeable future.
Controversy has already emerged over former Boeing executive Stanley Deal’s Special Management Area permit application to rebuild the two-story Front Street home he lost in the fire.
And at the Land Board’s April 11 meeting, one testifier warned against piecemeal decision-making and urged the board to defer acting on proposed shoreline encroachment resolutions that would further plans by Mary Ann Arini and Derek Regal to rebuild their Front Street home that burned down.
The couple’s home, purchased in 2021, was built in 1953. The access to Front Street, driveway, and garage are on the adjacent lot, which the couple also owns.
A seawall, stairs, and associated pavement fronting the two properties were constructed sometime before October 1960, which makes them non-conforming uses.
To determine the appropriate shoreline setback for their new home, the couple needs a certified shoreline. A surveyor they hired “located the shoreline at the face of the seawall and identified pavement areas, CRM stairs, and concrete stairs as encroachments within the shoreline with a total combined area of approximately 500 square feet,” according to a report to the board by the DLNR’s Land Division. “Land Division staff and the State Land Surveyor confirmed the shoreline location and the presence of encroachments at a site visit on June 20, 2024,” it stated.
At the board’s April 11 meeting, the Land Division recommended approving an immediate right-of-entry and revocable permit, as well as a 25-year, non-exclusive easement, for seawall footing, a paved pad, and stairs that are encroaching on state submerged land fronting the lot where the house used to be. The encroachments there total 192 square feet.
The Land Division recommended a monthly rental amount of $141.00 for the revocable permit. It also recommended that the couple post a removal bond in the amount of $23,293 to be used in the event that the easement fails to also win approval from the Legislature and the governor.
Normally, a landowner pays for the easement cost upfront, with the amount determined by an appraisal. In the case of Arini and Regal, the Land Division recommended that that amount, plus interest, be spread out over the term of the easement. Finally, the division recommended that 10 years before the expiration of the easement, the owners post a second removal bond.
With regard to the encroachments fronting the lot that provides access to the house site, the Land Division reported that the Land Board had already granted an easement, which the Legislature approved a decade ago.
“For reasons unknown to staff, the easement document was never finalized and recorded. However, the 302 square foot easement area is mapped and recorded as C.S.F. 25,339, dated November 13, 2013. Land Division staff will complete processing of the easement for Parcel 026 as a separate matter,” the division’s report states.
In explaining the recommendations to the board, Land Division shoreline specialist Rebecca Anderson said, “It’s very important that the board be informed that … this is one of fewer than a half dozen single family residences in the Front Street recovery zone that are actually owner-occupied, based on information collected by the governor’s office. It may be one of only two residential properties where the owners actually live there full-time as their full-time, sole residence.”
“This [recommendation] is simply to resolve the encroachment for purposes of certifying the shoreline … so they can get their building permits and rebuild their home so they have a place to live,” Anderson said.
Arini added that the new house will be built 40 feet from the shoreline, “as far back as we can go.” The house was originally 25 feet from the shoreline, she said.
Jacqueline Lasky, an adjunct professor at the University of Hawaiʻi and a second-year law student testifying as part of an assignment and as a concerned citizen, asked for a deferral.
Her written testimony cited Maui County’s Lahaina Long-Term Recovery Plan, which, among other things, describes an Asset Management and Acquisitions Program to address “the significant need for acquisition of real property in the impact zone, including shoreline parcels that face development challenges due to sea level rise and other shoreline hazards.”
She also cited the county’s West Maui Community Plan’s policies regarding resilience, climate change, and sea level rise.
“These are just two examples of why the Board’s granting of this proposed easement and permit now is PRE-MATURE and reflects a FAILED PIECEMEAL APPROACH to construction and development on Hawaiʻi’s fragile coastline in light of KNOWN RISKS OF CLIMATE CHANGE AND SEA LEVEL RISE,” she wrote.
“Sorry for your loss. I understand your desire to rebuild as quickly as possible,” she told Arini and Regal at the board meeting. “I just want to make sure the recovery and rebuild keep in mind the known climate change changes, sea level rise.” She also stressed the need for community input.
Board chair Dawn Chang countered, “All we’re approving is not the right for them to rebuild, just to get a shoreline certification.”
She said that the couple must still go through the county’s Special Management Area permitting process and will have to do an environmental review under Chapter 343 of Hawaiʻi Revised Statutes. “This doesn’t cut short any of the concerns you have,” she said of the proposed board action.
Arini’s and Regal’s consultant, Thorne Abbott of Coastal Planners, added that in addition to being more than 40 feet inland, the new 1,400 square-foot house will also be elevated.
He also noted that the county Planning Department has met with owners seeking to rebuild — including his clients— to discuss sea level rise projections.
Land Board member Aimee Barnes pointed out that even under very modest sea level rise, “this property will be under water.”
“You probably know this more than most people. Nothing is forever,” she told the couple, and asked them to share their thoughts on the fact the easement would be for just another 25 years. “Are you okay with that?”
Regal replied that he and Arini are both over 70 years old. “So 25 years from now, I don’t know whose issue it’s going to be. … We completely understand that. All we’re trying to do is get our home back and comply with every requirement that’s been put in front of us,” he said.
Arini added, “We’re in the Baby Beach Puʻunoa area. We’re not disputing any scientific research that has been done. This is a little sweet spot. … It’s a very calm area. My sister has owned the property, which was acquired by us a few years ago, since 2005. We have to abide by what the projections are. We’re willing to take the chance, for our children as well.”
The board unanimously approved a motion by Maui board member Doreen Canto to accept the Land Division’s recommendations.
Before the vote, Barnes acknowledged that supporting the maintenance of shoreline hardening structures “has not been the direction of the board for a while.” However, she said she believed that wildfires are extraordinary circumstances and in this case, the landowners are “going in with clear eyes [about] what scientists are telling us may happen. … This is an extraordinary circumstance that merits our flexibility.”
Entry Permit Paves Way For Oʻahu Cat Sanctuary
On April 11, the Land Board granted a right-of-entry permit to Popoki Place Oʻahu Cat Sanctuary, a nonprofit working to establish on Oʻahu a program similar to that on Lanaʻi, where cats removed from areas inhabited by protected bird species — and other parts of the island and Maui — can live out their lives on four acres of fenced land, or eventually be adopted.
The three-month permit for 20 acres of agricultural land on Oahu’s North Shore allows Popoki Place to conduct due diligence activities.
Holly Holowach, president and co-founder of Popoki Place, told the board her organization’s priority is “to remove cats from sensitive areas, from the beaches and the parks, where they threaten endangered native wildlife, and to permanently house them in secure open air enclosures in a natural environment.
“Popoki Place is the the missing piece of Oʻahu’s stray cat management puzzle and will serve as a critically needed pressure relief valve for shelters, rescuers and the community. … Everyone supports this idea. We just need land. We have been looking for the unicorn property. … We need an agricultural, pastoral land and understand it cannot be [important agricultural lands]. This AG2 property is excellent. This property has been vacant for 50 years. … We think we have found our unicorn,” she said.
She stated that their consultant Mark Howland of WHALE Environmental will be preparing the environmental assessment.
Land Board chair Dawn Chang said the Department of Land and Natural Resources supports “providing available state land for a cat sanctuary on each island. Holly has been working very hard with our Land Division to find a suitable site, as well as working with [the Division of Forestry and Wildlife]. Part of our consideration is, we have valuable forest reserves and state parks that have cat colonies. They will work in coordination with us to remove those cat colonies from those critical habitats. It’s a good partnership.”
Holowach said that the cats are going to be happy in the sanctuary. “It’s a way to save them all. We can’t kill our way out of this. We can’t just kill all the cats. We tried that for years. It didn’t work. This is a way to try to find a way to save them all,” she said.
Board member Aimee Barnes also expressed her support. “This is a problem that seemed intractable for a long time and really shouldn’t be. People at odds who care about animals. … I appreciate you guys taking the initiative putting this concept together and help to bring it to not full fruition yet. Bringing it one step closer,” she said.
She asked if Popoki Place’s partnerships with the Hawaiian Humane Society and other rescue groups meant that some of the sanctuary cats would be adopted.
Absolutely, Holowach replied, adding that all the cats will be spayed or neutered.
DOFAW Oʻahu branch manager Marigold Zoll also testified in support. “I’ve been working with Popoki Place trying to find a location that’s suitable,” she said, adding that her division would be happy to provide technical support “in order to benefit our protected species.”
— Teresa Dawson
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