Board Talk

Board Yields on Permit to Dredge Hawai`i Kai Channel to Maunalua Bay

The Board of Land and Natural Resources has given conditional approval to a request to dredge a channel between Maunalua Bay and the private Kuapa Pond, centerpiece of the Hawai`i Kai residential development. In the action, taken at its December 11 meeting, the board overturned a vote last July to deny the project.

The vote is just the latest event in a 30-year history of trouble associated with the channel, dredged by Kaiser Development to link Kuapa Pond, once an old Hawaiian fishpond, with Maunalua Bay. Long-time area residents claim that the development devastated the bay’s marine life and caused massive shoreline erosion up and down the coast. The channel was dredged to allow residents of Hawai`i Kai Marina, who have the exclusive use of the pond, to shuttle their boats between the pond and the bay through openings in a bridge that spans the channel.

Originally, there were four navigable openings in the channel. Today there is one. Sand has migrated from up the shoreline, presumably from Portlock Beach, and has filled most of the channel. Marina residents say that sand is building up in the last opening, which has already become a navigational hazard.

In 1986, the Marina Association spent two days and $1.2 million dredging sand from the pond. Unfortunately for them, the dredged area filled within a few months.

In 1994, and again in 1996, the state Legislature appropriated funds for the dredging of Maunalua Bay. The project was first brought to the Land Board last July, at which time the board denied it. Among other things, the environmental assessment process had not been completed by then and many legal and environmental questions remained.

Testimony from David Frankel, executive director of the Sierra Club Hawai`i Chapter, expressed concerns that the potential siltation and beach erosion resulting from dredging had not been properly addressed, that the state would be exposed to future liability if it chose to participate in the dredging, and that the project benefited only the private sector, not the public at large.

On November 23, the final environmental assessment was released, along with a finding of no significant impact. The matter was brought to the board again on December 11, and at that time the Land Board approved the request to award a $189,700 contract to North Pacific Construction for the dredging of 6,100 cubic yards of sand from the seaward portion of the channel to the inland limits of the Kalanianaole Highway bridge spanning it. In addition, the contractor is to distribute sand to Portlock Beach and build a “beach retention system.”

The approval was made with one condition: the contractor must obtain a Conservation District Use Permit adequately addressing the environmental and legal concerns raised by nearby residents and the Sierra Club.

DOBOR’s Defense

In the December submittal to the Land Board, Howard Gehring, acting administrator of the DLNR’s Division of Boating and Ocean Recreation, claimed that the Sierra Club’s assertions were nullified by Act 231. That the Legislature, through this act, appropriated funds for the dredging proved that there was a public interest and need for it, he said. The fact that there is no public access to Kuapa Pond is thereby “rendered moot,” Gehring claimed.

According to Gehring, the dredging is a matter of health and safety for those traveling in and out of the bay. Gehring told the board that the sole remaining passage under the Kalanianaole bridge is, at low tide, too shallow to navigate safely. A number of boats, including his own, have been stuck or damaged, he told the board.

Furthermore, the dredging makes good economic sense, he said, because the 20 or so tour companies that operate out of the Hawai`i Kai Marina generate $3 million in “economic input.”

Beach Nourishment

According to the submittal, the entire project — including the state’s and the Marina Association’s efforts — consists of dredging approximately 8,000 cubic yards of sand from the Maunalua Bay entrance channel and placing the suitable dredged sand on the adjacent beach fronting Portlock.

Since the Marina Association did its maintenance dredging in 1986, Portlock’s shoreline has eroded some 20 feet, according to Jim Leavitt, president of the Portlock Community Association.

As a result, one element of the project consists of the construction of a beach retention system consisting of large, sand-filled bags along the eastern edge of the channel to anchor Portlock’s beach and minimize the migration of sand back into the dredged channel. The bags would stick out from the channel edge like a finger, or a groin. Gehring acknowledged that this method, used in Florida and other states, is experimental here in Hawai`i.

Kaua`i board member Lynn McCrory expressed some concern over this method: “We have spent, the last year — plus — talking about shoreline areas… One of the things I can remember is Dr. Chip Fletcher [a University of Hawai`i coastal geologist] saying that the minute a groin … was put into the water, what happens behind it is that we lose all the sand.” McCrory asked then if the proposed groin would cause the beach behind it to erode away.

Warren Booker of Oceanic Laboratories, which prepared the environmental assessment, responded that only time would tell. Still, the groin should prevent most beach sand from re-entering the channel area, he said, even though “it’s not going to stop everything.”

McCrory remained skeptical, prompting Gehring to propose removal of the groin, “if that’s what you’re concerned with… Our efforts here are to make sure we stabilize the beach.” To accomplish that, the groin is to be monitored quarterly during the first year and twice a year for the next five years, Gehring said.

Liability

Leavitt, whose Portlock property has lost large amounts of sand over the years, “cautiously” endorsed the project. “I hope the experts are right,” he told the board.

Because so much of the justification for the project relied on the word of experts, at-large board member Colbert Matsumoto raised the issue of the state’s potential liability, if the engineering predictions fail. What if a big storm hits, the groin fails, and massive erosion occurs, he asked. Also, he wanted to know whether the state would be exposed to ongoing liability that it does not now have should it take on the maintenance of the channel and groin.

Gehring responded that the state’s liability exposure would be greater if a boating accident occurred as a result of the navigational hazard created by the accreted land. Under state law, he reminded Matsumoto, accreted sand is state property. And that, Gehring said, “is the liability I’m more worried about.”

“When you say that’s a greater liability,” Matsumoto asked, “what was the legal analysis that you conducted to make the determination that the exposure was greater than the exposure we might face with the ongoing responsibility to continue to dredge and potentially restore the eroded areas?”

Gehring referred to Act 231, which he said gave the state the responsibility to dredge the channel.

Matsumoto countered: “Reading Act 231, I don’t see anything in there that says that the Legislature elected to have the state assume the liability issue. Your staff report indicates that. But when I read the act itself it says that there’s a public purpose behind expending public funds for the project, but it doesn’t make any statement where the Legislature elected to take the liability. Did the AG [attorney general] endorse your interpretation of the act? Because I don’t read it that way.”

Gehring said he was not aware of the attorney general’s interpretation of the act. State Representative David Stegmaier, testifying later, assured Matsumoto that the plan would allow the state to take incremental steps, based on the frequent monitoring, so there would be no significant liability.

Erosion Elsewhere

Portlock Beach was the only area where anti-erosion measures are proposed. However, Boisse Correa, Barbara Ward, Robert Childs, and Marshal Rosa, all residents of Paiko Drive, expressed concern that the project might cause erosion where they live. Erosion has occurred all along the coastline, including the area along Paiko Drive, and not just at Portlock, they noted.

Correa described the effects of Kaiser’s dredging. aside from massive erosion, the bay received a lot of soot, reefs died, and marine life was disappearing. For the last three or four years, he said, things have become stabilized. “Now, all of a sudden, we worry that through this experimental project, we may be put in a situation where we have to go through some of these growing pains again,” he said.

Board member Kathryn Whang Inouye told Correa that she saw the project as a benefit to landowners along the coast, considering the beach nourishment aspect of the project.

“It’s such a new thing that there really is nothing that has been proven to be permanently successful… You have to experiment with it somewhere or you’ll never know,” Inouye said. “If those homeowners can benefit from that, at least you will have the potential of gaining, as opposed to the status quo, which is increasing erosion.”

But, answered Correa, “what is the opposite is true? Why experiment in one of the most delicate places, Paiko Beach? … The devastation has already been done. Let nature try to take its course.”

While there was much debate over the use of public funds for what many considered to be a private project, board member Inouye decided that it was the state’s responsibility to maintain the channel, just as it is the state’s responsibility to maintain access road to exclusive residential areas. “There’s no doubt in my mind that these are public lands,” she said.

Inouye moved to approve the contract, but subject to the contractor’s obtaining a Conservation District permit that would resolve such matters as liability, groin impacts, beach nourishment, and effects on other areas such as Paiko. Kennison seconded the motion, which then passed. By the time the vote was taken, board member Matsumoto had left the meeting. The only dissenting vote was cast by Big Island board member Russell Kokubun.

* * *
Kane`ohe Permits Are Extended Again

Once more, the Land Board has extended the permits to 12 commercial ocean recreation operators in Kane`ohe Bay after an “administrative” extension of the permits that some say is not allowed.

The first such extension occurred on June 5, 1998, when the board authorized a six-month extension after Board chairman Mike Wilson said he had administratively extended the permits (expiring the end of May) to allow ongoing operations until the matter could come before the board. At the time, members of the Kane`ohe Bay Regional Council questioned whether Wilson had the authority to do this. If he did, one council member said, then “I’m not sure what we’re doing here today.” And, if Wilson lacked the authority, then the existing permits would have expired before the Land Board meeting. And, with that, the operators would have also, presumably, lost their non-conforming uses, as described in the Kane`ohe Bay Master Plan — including the use of jet skis.

Despite the objections at the June board meeting, the permit conditions and permittees were not changed, and the permits were given another six months of life.

Five months into the renewal period, on November 12, a visiting tourist was killed when the jet ski she was riding was hit by another jet skier. The commercial operator that supplied the jet skis was Dina Morita and Associates/Windward Sea Yacht Charters, one of the 12 operators holding Ocean Recreation Management Area permits for Kane`ohe Bay, and one of the five operators employing jet skis in their tours.

The ORMA permits granted in June were to expire on December 6. Once more, they were administratively extended by Wilson through December 11, when the Land Board met.

At that December meeting, the Division of Boating and Ocean Recreation requested yet another a six-month extension of the permits. This time, though, DOBOR asked that Dina Morita and Associates/Windward Sea Yacht Charter’s permit not allow use of thrill craft until such time as the DLNR authorizes the resumption. (After the accident, the company filed for bankruptcy and has ceased daily operation.) Also, Kualoa Ranch’s full-service and snorkel-tour permits were amended to prohibit scuba diving and to require the ranch to get access permits from public and private lands for its snorkel tours. This last amendment was the result of a May 8 Land Board decision that determined the accreted beach fronting Moli`i fishpond — land Kualoa Ranch uses in its tours — belongs to the state.

The board unanimously approved the extension. As the item was the last to be heard at a meeting that went late into the afternoon, there was no public testimony provided on the matter.

* * *
ATOC Sea Cable Must Be Removed

The Land Board has denied a request of the Scripps Institute of Oceanography to leave a cable in place on the ocean floor north of Kaua`i when the institute’s experiments on marine mammals are completed early next year.

Scripps had wanted to leave the cable in place. To do so, it needed an amendment to the Conservation District Use Permit it obtained on February 23, 1996. That permit, granted after-the-fact, allowed the use of submerged lands by Scripps’ ATOC (acoustic thermometry of ocean climate) and marine mammal research projects (MMRP). To carry out these projects, Scripps laid a 28-mile long cable off the northern coast of Kauai and installed a 5-6 ton sound source.

The ATOC project uses the sound source and the cable to produce acoustic submarine signals to study global climate change. The MMRP studies the effects of these signals on marine mammals.

Condition 7 of the CDUP required Scripps to cease all project activity within three years of issuance of the permit and to remove the cable within six months of the ATOC project ending.

According to a DLNR staff report, “This condition was specifically tailored for the ATOC project, in part because there was a lot of public concern expressed at the time of the application … that there be a specific time limit on the project. Many opposing the ATOC project at the time alleged that the project would have a serious negative impact on the whales and that the impact would continue as long as the project was in place.”

Exhausted Funds

On September 16, 1998, ATOC’s principal investigator, Peter Worcester, requested two changes to conditions attached to the CDUP. First, he wanted a time extension; second, he wanted to eliminate the requirement that the cable be removed.

The CDUP was to expire on February 23, 1999, and the revocable permit (to use state land) would expire on June 14, 1999. Worcester asked that both dates be amended to October 31, 1999, “to compensate for the delayed start of the program. This minor amendment to the end dates would allow us to complete the 24-month feasibility study as originally proposed.”

As Worcester explained, due to complications — the sound source was accidentally dropped into the ocean and could not be retrieved until weather and ocean conditions settled — ATOC did not have a functional sound source until July 1997, and the MMRP pilot study did not begin until October 30, 1997.

ATOC was not only running out of time, it was running out of money as well. Hence, request number two: permission to allow ATOC to leave the cable and sound source on the ocean floor.

Worcester’s letter states that ATOC funds were exhausted, apart from those held back to recover the sources and cables. “I am currently holding in reserve approximately $430K of our original ATOC grant … to fulfill our commitment to recover the cable north of Kaua`i at the end of the ATOC feasibility operations. I would be willing to make these funds available to support MMRP research during the 1998-99 humpback season to address more fully the issue of any possible long-term effects from the ATOC source.”

Worcester explained that if the Land Board were to require removal of the cable, it would probably be placed in wet storage elsewhere in the ocean because of its bulk. “It would seem to me,” he concluded, “to be much better to use public funds to improve our understanding of possible effects of man-made noise on the humpbacks wintering in Hawaiian waters than to spend those funds to move a cable from one location in the ocean to another.”

Worcester’s request came before the Land Board on November 20. At that meeting, DLNR staff recommended that the board grant only the time extension, leaving unchanged the requirement to remove the cable.

In testimony before the board, Worcester pointed to language in the environmental impact statement, mentioning circumstances that might warrant leaving the cable in place. Among them was one where higher-priority research might use the cable. MMRP research, he said, meets that condition.

Opposition

Written testimony by Raymond Chuan, c-chair of Kaua`i Friends of the Environment, was presented by Paul Achitoff of the Earthjustice Legal Defense Fund. Chuan said he saw no reason for continued marine mammal research. ATOC must prove that it will not significantly impact marine mammals, he said, and research done to date has had a pattern of “self-fulfilling predictions of no impact.”

“As a matter of record,” Chuan wrote, “the one instance of a significant impact in the California MMRP … was blithely dismissed on the basis that the weather was unfavorable. This involved the comparison of whale count with the ATOC source off and on.” The source-on count was two orders of magnitude below the source-off count, he noted. Such selective use of data makes continued testing pointless, he said.

On the matter of removing the cable, Chuan said, “The question here is whether the receipt of a few hundred thousand dollars more of ATOC money by the university [of Hawai`i] through an amendment of a condition of the permit is worth the potential and unknown risk to the state’s ocean resources.

“Letters of support are from those who stand to gain financially and should not be considered unbiased. Also, at the very least, a supplemental EA [environmental assessment] should be done, as staff has suggested.”

The stated shortage of funds “is not basis for leaving the cable in place,” Chuan concluded, “especially since the ATOC team has demonstrated an impressive record of its ability to get more money — it’s total budget having gone from about $35 million in the beginning to over $50 million by now.”

Achitoff had even stronger words for Worcester’s attempt to suggest language in the EIS anticipated leaving the cable in place. “To suggest that it was always clear from the EIS that this cable might be left in place is baloney and disingenuous, to say the least. It became clear as his [Worcester’s] testimony wore on that it was an after-the-fact attempt to get rid of a permit condition that the applicant agreed to get this CDUP, and now he would like to use the money for something else.”

In the end, the board voted to approve staff recommendation, extending the permit deadline, but not granting the request to leave the cable in place. Instead, the board asked its deputy attorney general to clarify permit requirements as they related to the cable.

On December 1, Scripps attorney Mary Hudson wrote Deputy Attorney General Linnel Nishoka, stating that “my review of the applicable laws does not show that there is any clear requirement for additional environmental review in connection with this proposal.”

Any hope that the Land Board would expeditiously approve ATOC’s request was reached in Nishioka’s response on December 2:

“Your client contends that the original EIS disclosure was sufficient because it explained in one paragraph that it might not remove the ATOC facility under certain circumstances. We disagree. First, the original EIS did not contain the disclosures concerning possible ‘wet storage’ of the ATOC facility. This disclosure was made in response to a question raised in a comment to the draft EIS. Such a disclosure merely in response to a comment about the draft EIS did not allow the public to review or comment on that disclosure. Second, throughout the CDUP process, the applicant made multiple representations that it would remove all ATOC facilities at the conclusion of the experiment. We do not believe that the scant reference in the final EIS document, coupled with the representations made during the CDUP process, provided straightforward or adequate notice to the public or the responsible agencies. For all these reasons, we believe that a supplemental statement is required prior to any BLNR consideration of the amendment.”

Nishioka added that any amendment to a CDUP must, according to DLNR rules, be shown to be necessary because of a lack of practical alternatives. ATOC has not shown this, Nishioka said.

— Teresa Dawson

Volume 9, Number 7 January 1999