The Department of Land and Natural Resources has come under fire lately for its issuance of shoreline certifications to developers despite ongoing appeals.
Under state law, most development along the coast requires, as a condition of its permit, a state-approved, or “certified,” shoreline survey. The proposed shoreline surveys, prepared by private surveyors hired by the developers, are submitted to the state surveyor’s office. That office, in turn, recommends that the proposed survey be accepted or rejected by the Department of Land and Natural Resources. The surveys are supposed to show the high-water line at the time of the year when in which the highest wash of the waves occurs. While this often is the line of vegetation, it need not be, especially when vegetation is planted and cared for.
And disputes over vegetation lines some say are artificially cultivated and maintained are at issue in two pending proposals for improvements at West Maui hotels.
The Marriott
The Maui Marriott Hotel is undergoing a $65 million renovation as part of its shift from a 720-room hotel to a time-share resort with fewer than half that number of units. The renovation plans include work in the shoreline setback area (everything from the certified shoreline to a distance of about 130 feet inland), and so a certified shoreline survey is required. The work in the setback area involves renovation of two existing and non-conforming structures – a restaurant and a beach activity center. The structures are non-conforming in the sense that they would not be permitted to be built today.
The Marriott applied for certification of its shoreline early in 1999 and notice of the application was published in the February 8, 1999, Environmental Notice of the state Office of Environmental Quality Control. As part of the certification process, the public has 15 days in which to comment on the proposed shoreline. On February 18, Robert Mullane, a beach erosion expert on Maui working for the University of Hawai`i’s Sea Grant Extension Service, wrote to express his concern that the proposed shoreline did not reflect the “upper reaches of the wash of the waves” and that the Marriott had possibly been watering coastal vegetation (a large stand of planted naupaka) to fix the shoreline, “contrary to the definition of vegetation that can be used as evidence of the shoreline” according to DLNR rules. “Vegetation that has been planted and watered is not natural,” Mullane wrote.
In addition, Mullane continued, “the shoreline was surveyed in December 1998, which is not the high wave season for this parcel.” (Although Mullane objected to the proposed shoreline map, he expressed no objections to the Marriott’s planned development in an August 23 letter commenting on the hotel’s application for county permits.)
County Councilmember Wayne Nishiki also wrote to express his concerns about the proposed shoreline map. In addition to the points raised by Mullane, Nishiki complained that the map submitted by Marriott was difficult to match up with on-the-ground features, making it impossible for the public “to ascertain how accurate the shoreline determination may be.”
The public comment period for the proposed shoreline survey ended February 23. Notwithstanding the comments of Nishiki and Mullane, state surveyor Randall M. Hashimoto wrote to Nishiki the following day that he would be “recommending certification of this shoreline to the chairman of the Department of Land and Natural ResourcesÉ [Y]ou may contest and request for a hearing in writing within 20 days” of the date the notice of certification is published by the Office of Environmental Quality Control. Johns accepted Hashimoto’s recommendation, and on March 23, the OEQC’s Environmental Notice published notice of the certification of the Marriott’s shoreline survey.
Nishiki appealed with a petition for a contested case hearing. Joining in the petition were the group Hui Alanui o Makena, Inc., and two of its directors, Dana Naone Hall and Leslie Kuloloio, both individually and in their capacity as directors of the organization. Their petition was referred to the Department of Attorney General – and there the matter rested until last December.
In an effort to allay the concerns of Nishiki, Hall, and Kuloloio, the Marriott conducted a second shoreline survey in September, with some of the petitioners attending. But, as Isaac Hall, attorney for Dana Hall and Kuloloio, wrote, “During this shoreline survey it was apparent that in many locations, the high wash of the waves was mauka [landward] of the artificially irrigated and grown naupaka and pohuehue [beach morning glory].”
“At the Marriott, there are hedges of naupaka and poheuhue that are 30-40 feet deep,” Hall told Environment Hawai`i. Even so, he says, the wash of the waves clearly went beyond the hedges.
In the meantime, pending the Land Board’s decision on whether to hold a contested case hearing on the shoreline survey, the Marriott attempted to proceed with obtaining necessary county permits. Although always before, a certified shoreline survey (valid for one year from the time it was certified) was required by the county to accompany special management area applications, the Marriott decided to append to its application a 1989 shoreline survey – and the Planning Department, whose director, John Min, used to work for the Marriott’s consultant, former Planning Director Chris Hart, accepted the application.
The Planning Department’s report to the Planning Commission for its November 23, 1999, meeting, made mention of this omission. “It should be noted that the applicant will be required to provide an updated certified shoreline survey prior to the issuance of a building permit,” the report stated.
Once more, Hall and Kuloloio and Hui Alanui o Makena petitioned for a contested case. The Planning Commission deferred a vote on the application until the Marriott provided a valid shoreline certification.
The Land Board finally scheduled a hearing on the contested-case request for January. According to a staff report to members of the Board of Land and Natural Resources, the attorney general was consulted to “determine whether É a contested case hearing is ‘required by law.’ ”
The conclusion was that it is required, but only when the petitioner has “some property interest.” Nishiki did not meet this criterion, the AG determined, but Hall and Kuloloio might, since they and their group had a history of protecting traditional and customary rights of Native Hawaiians. The staff recommendation was that the Land Board “allow the petitioners [Hall and Kuloloio] to provide additional information on their due process rights and their reasons for appealing the shoreline certification, specifically to any traditional and customary rights that are claimed and how the present shoreline certification would affect such rights.”
In any event, the Land Board granted standing to all petitioners, but then the DLNR went ahead and issued to Marriott the certified shoreline survey map, noting in the cover letter that the map was subject to appeal. As Hall explains, “the DLNR’s rules say they have to release a certified map to applicants if it was approved for certification.” In other words, the state has given itself no option other than to hold contested case hearings in an after-the-fact manner.
“Usually an appeal is on a record that has been established during a hearing process,” Hall notes. “But in the case of shoreline certifications, the state is going to have an evidentiary hearing only after the certification is made. It’s odd that you should have to go through a process of a contested case hearing on a map the state has already certified.”
The certification, good for just one year, will expire this month – almost certainly before the Land Board is able to hold the contested case hearing it agreed to allow in January.
The Ka`anapali Beach Hotel
Just up the coast from the Marriott is the Ka`anapali Beach Hotel, which has asked the county for permission to build an entirely new, substantial structure in the shoreline setback area. The structure would house a restaurant and a canoe hale (a storage area for outrigger canoes).
As with the Marriott, the proposed shoreline certification of the Ka`anapali Beach Hotel has been challenged, with the main concern being the planting and watering of vegetation to fix the shoreline at a boundary more seaward of where it otherwise would be. The hotel’s environmental assessment itself seems to confirm Hall’s statement that the naupaka and pohuehue are artificially maintained, with photographs showing a carefully pruned and trimmed hedge that, in certain spots, is almost 80 feet wide.
The Land Board has yet to vote on whether to allow the requested contested case hearing, this time being sought by owners of nearby condominium units. And, while the request is pending, the Department of Land and Natural Resources has issued the certified shoreline.
The hotel says that the location of its current restaurant is too far from the ocean and, because of this, has been operating at a loss. The hotel proposes to relocate its restaurant to a site about 100 feet from the shoreline, near the beach walkway (which the hotels have been required to provide to let members of the public have beach access along the entire stretch of the shoreline at Ka`anapali). This, it says, will allow it to attract “the steady supply of patrons coming from the beach walkway.”
In the environmental assessment prepared for the $2 million project (again, by the firm of former county planning director Hart), the proposed location is described as in keeping with the hotel’s “Hawaiian cultural education program.” “The proposed restaurant is intended to become the hotel’s tangible expression of the Hawaiian’s cultural connection to the sea,” the environmental assessment says.
Before the DLNR issued the certified shoreline map, the hotel had sought to get its county applications approved on the basis of a shoreline map more than 10 years old. The Planning Commission refused to consider the application until two issues could be cleared up: first, a letter clarifying that the owner of the hotel had authorized the application, and second, a certified shoreline.
In early February, the hotel provided the county with both documents. The next step before the Planning Commission will be to consider whether to grant the contested case hearing requested by the hotel’s neighbors.
–Patricia Tummons
Kaua`i Backs Off Wailua Revetment Plan
Almost as suddenly as Kaua`i County gave formal notice of its intention to build a revetment along the first and second holes of its golf course at Wailua, it backed off.
To build the revetment has long been a wish of the county, which actually began constructing one in the 1980s, without so much as a by-your-leave from the state, which has to issue the permits for work on coastal lands and all state-owned land (which the golf course occupies). When the county Department of Public Works tried to get the needed permits to build the revetment in 1995 and 1996, the effort ended in failure, with both the Army Corps of Engineers and the state Board of Land and Natural Resources ordering the county to remove the rocks it had already begun to place along the coast. (For details, see the cover article in the December 1996 issue of Environment Hawai`i.) The county was instructed to consult with the community before proceeding with future plans to armor the coast at Wailua.
Two years later, the county retained the engineering firm of Oceanit, based in Honolulu, to prepare plans for a new revetment at Wailua. Members of the community saw the firm’s staff conducting surveys in 1999 and attempted to become involved with the county’s planning process, but to no avail. In January, the county submitted to the Office of Environmental Quality Control a draft environmental assessment for a 3,500-foot-long revetment. Notice of availability of the document was published in the OEQC’s Environmental Notice of January 23.
No sooner was the plan made public than a hue and cry went up from Kaua`i. Kurt Bosshard, a lawyer who was among those vocally opposed to the county’s plans in 1996, informed the OEQC that, contrary to its rules and the requirements of state law, the county had not engaged in consultation with community members and other interested parties before preparing the environmental assessment. The agency had accepted the document unaware of the history of the project and the controversy attending it.
After learning more about the project, the OEQC director, Genevieve Salmonson, urged the county to withdraw the document, consult with community groups and other government agencies, and submit an amended draft environmental assessment, should it decide it still wants to move forward with the project. On January 27, the county agreed and asked the OEQC to withhold further processing of the draft EA.
Falsehoods
Among the many faults that Bosshard has identified with the draft environmental assessment, the one that appears to bother him most is the county’s claim that the golf course requires protection as a result of heavy beach erosion. The document states that “the golf course has eroded at an average of 1 foot per year over the last 40 years.”
“Anyone reading your Environmental Assessment or the newspaper article [published in The Garden Island] would conclude that a true emergency exists that imminently threatens the golf course,” Bosshard wrote in a letter to David Takeyama of Oceanit on January 26, 2000. The suggestion that the course has lost up to 40 feet is a “total lie,” Bosshard told Enviornment Hawai`i. “The course hasn’t lost an inch.” A road running between the golf course and the beach is up to 50 feet wide in places, Bosshard said.
Assistant county Engineer Ken Kitabayashi has acknowledged that the golf course is not really in jeopardy now, although he says there has been some erosion in places.
Outstanding Issues
Bosshard also has pressed the county to come clean on what he says is a driving range and backstop built without proper permits. Work on the driving range, complete with fifteen 70-foot-high poles and netting, began around 1994, with the county using funds from the Federal Emergency Management Agency to build the backstop. In December 1996, the Public Works Department applied to the Planning Department for an after-the-fact minor Special Management Area permit, which it received five days later.
At the time the permit was finally issued (after many requests from Bosshard for information on the project dating back to 1995), the county claimed the cost of the project was just under $80,000. On that basis, a minor SMA permit was issued and no environmental assessment was required to be prepared.
Bosshard has challenged the issuance of the minor SMA permit. He notes that the county acknowledged in newspaper accounts that the cost of the project was about $200,000. In addition, the county requested and received additional FEMA funds for the project of $117,456 through the state Office of the Director of Civil Defense in June 1996.
Apart from the issue of whether the project qualifies for the minor SMA permit, there is Bosshard’s additional claim that the backstop lies within the shoreline setback area, defined by a line lying 40 feet from the shore. By Bosshard’s estimate, the backstop is about 20 to 25 feet from the high wash of the waves, and thus it should also require a shoreline setback variance.
Bosshard raises this and still more, related issues in a letter dated January 20, 2000, to the Department of Land and Natural Resources. In the letter, directed to the DLNR’s land agent on Kaua`i, Mike Laureta, Bosshard points out (with pictures to back up his claims) that the county had not yet removed all illegal fill it had placed along the beach (contrary to the Land Board’s order in 1996) and that the fill in front of the driving range backstop had not been removed.
To bring the county into full compliance would require an accurate shoreline survey, which, Bosshard points out, cannot take place “until all of the fill has been removed and some significant amount of time has passed.” “Please investigate this matter and take the necessary enforcement action,” Bosshard urged.
Bosshard’s letter was referred to Honolulu. As of mid-February, Bosshard had not received a response.
–P.T.
Maui Dump Is Cited For Continuing Violations
Mounds of garbage went uncovered for months last year at Maui County’s central landfill, despite laws requiring refuse to be buried with soil or other cover material at the end of each day. As a result, flies and wild dogs plague the site, according to records at the state Department of Health’s Office of Solid Waste Management (OSWM), which has cited the county repeatedly for this and other violations.
At the time, county landfill operators claimed they had no money to buy cover material, though they have since found the money and solved this particular problem.
What can be done to force more timely compliance? Not much, says Gary Siu, an engineer with OSWM.
“They know we can’t close them down. That’s not an option,” he says. “Our hands are tied.” Assessing fines is not the answer, either, he adds. If the state does that, he says, “it’s one government agency taking from another agency.”
David Goode, deputy director for the county’s Department of Public Works and Waste Management, takes the problems in stride. “Clearly, there was a lapse in management and fulfillment of basic duties,” he said. “Every management site can be improved upon. In any organization, there are misunderstandings and lapses. You just have to address those and make everyone aware of them.”
The most recent violation was documented during a routine inspection done on November 3, 1999 by Jeffrey Ung, one of two OSWM inspectors responsible for monitoring landfill operations statewide. Ung found that “new trash cells are being created, however, the older trash cells are still uncovered and the wind is blowing trash everywhere,” his report states. The landfill consists of four phases. Phase IV is the newest, still under construction. Phases I and II, the oldest, are where most of the cover problems are found.
Landfill supervisor Mike Souza told Ung that the county had canceled its contract with its soil hauler “because they [the county] thought they could do all the soil hauling in-house with the soil they excavated from the Phase IV landfill construction,” Ung wrote. “Souza informed me that the above plan did not work because their vehicles are always breaking down and they are having a hard time having their vehicles repaired, especially their soil hauling trucks. Souza said they have $50,000 in their budget for soil hauling and that they are in the process of renewing the contract with their original soil hauler (the contract was stopped over a year ago).”
Inadequate landfill cover had been noted in an earlier inspection by Siu in May 1999. Pictures of the landfill Siu took on May 19 and 20 show a mound of refuse that had not been covered for a day or more. Other photos show windblown litter caught in trees and on fences. Siu’s pictures also document that, contrary to state regulations, no county employee was on hand to monitor dumping.
On December 17, Andy Hirose, chief of Maui County’s Department of Public Works and Waste Management, met with Lene Ichinotsubo, head of OSWM, to discuss the violations. A month later, Hirose sent a letter to Ichinotsubo, notifying her that the east and west slopes of Phase I had been covered, as well as the west and north slopes of Phase II. On January 15, 2000, Hirose wrote, the county completed the job using soil from “an onsite stockpile delivered from Phase IV excavation, and material from construction sites including the adjacent quarry,”
Hirose thanked the OSWM for “alerting us to the lapse of our performing this mandatory regulation” and stated that his department would be more vigilant in the daily cover operations.
Promises, promises
The cycle of violations and promises to do better is one that has been repeated frequently in the last decade. A review of the OSWM’s files disclosed numerous notices of violation and warning notices dating back to 1991 issued to Maui County over its operation of the central landfill.
In July 1991, for example, the Department of Health notified the county that a sludge pond containing sewage and agricultural waste was being operated at the landfill, in violation of permit terms. A stack of junked vehicles – five or six cars high – was noted in one corner of the landfill, adjacent to a mound of so-called “white goods” – junked household appliances, such as washing machines, dryers, and refrigerators. The DOH was “concerned as to whether or not fuel, oil, and other liquids were removed from the vehicles prior to storage,” it wrote in a letter to the county.
In addition, the letter continued, inspectors “noticed that two working faces were being operated; one for household waste and the second for commercial waste. No spotter was noticed at either working face to oversee what types of waste (i.e., liquid waste, hazardous waste, spent lead acid batteries, etc.) were being deposited in the area. A bulldozer operator compacting the commercial waste was the only county employee in the area.”
Among other problems noted at the time were windblown refuse on fences surrounding the landfill, dumping of asbestos-contaminated material, and inadequacy of leachate and groundwater monitoring systems.
Two years later, many of the same problems were seen in an inspection conducted March 18, 1993, with some having worsened in the intervening two years.
In the meantime, the county had begun a composting project, in which green waste and sewage sludge would be mixed together, composted, then sold as a soil amendment. This project, begun in 1993, seemed at times too much for the county to control. On December 17, DOH inspectors found several problems: “Odor and vector nuisances are of particular concern. The odor problem has already been the subject of formal complaints…. Stockpiles of unprocessed greenwaste were found to be excessive. Their proximity to the existing landfill fire poses an additional threat,” OSWM chief John Harder wrote in a February 8, 1994 letter to David Wissmar, Maui’s solid waste manager.
Over the next several years, the DOH made several fruitless attempts to force the county into compliance. Each time penalties were threatened, the county would respond with a report assuring the DOH that the problems had been solved or were being worked on. Things got steadily worse: During a storm in 1995, inadequate drainage allowed surface water run-off from the landfill and the composting facility to escape onto nearby Ameron Quarry and into an adjacent stream bed. Less than a year later, a DOH inspector found two ponds of liquid oil near the working face of the landfill, an apparent violation of the liquids restriction requirement for landfills.
Several small fires have broken out over the years, and in 1997, a sludge leak on the east side of Phase I of the landfill forced the landfill operators to build an earthen berm around the leak and construct a new roadway.
The county has started the year with a renewed effort to manage the landfill properly and has now covered the exposed refuse with dirt excavated from Phase IV. But Siu says that solution is temporary. “What happens when that soil runs out?” he asks.
When asked this question, Goode responded that the county would simply resume its contract with the original dirt supplier, Ameron. “For years, we’ve bought dirt from Ameron,” he said. “Since we’ve had the excess material [on-site], we haven’t bought from them.” The county does have sufficient funds to purchase cover, he added. “The expense is not that bad, about three to four dollars a ton.”
The pattern of threats, assurances, and noncompliance has dragged on for nearly a decade. But Maui County’s Goode says that’s all in the past. “Part of [the problem with compliance] is just trying to understand permit requirements. They may be vague and subject to interpretation. It’s like ADA [Americans with Disabilities Act] compliance. There is non-compliance all over the place, because people don’t understand the requirements. It’s not perfectly black and white,” he told Environment Hawai`i. “Now landfill operators know what the requirements are. In the past, they failed to address the cover issue, equipment problems, personnel shortages. They understand that now and are clear about the requirements.”
Whether the changes will be permanent is another question. Siu points out that the Department of Health has little power over what goes on at the landfill and is handicapped even in knowing what occurs there. Since there are no DOH inspectors based on Maui, “You go there and raise issues, but you really don’t know what they do once you leave,” he says.
— Teresa Dawson
Volume 10, Number 9 March 2000
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