Island Watch

Department of Health Flip-Flops On Removal of Moloka`i Fishpond Wall

Nearly two years ago, Environment Hawai`i reported on the construction of a 14-foot-wide rock wall into the ocean near Kainalu, Moloka`i. (See “[url=/members_archives/archives_more.php?id=1157_0_31_0_C]Corps of Engineers Nears Decision on Controversial Moloka`i Fishpond[/url],” February 1993 edition.) Its builder, Lance “Kip” Dunbar, claimed at the time that he was restoring the walls of an ancient fishpond, called `Ipuka`iole.

The restoration claim was disputed, and the Corps of Engineers agreed with his critics, forcing Dunbar to file for a Corps of Engineers “individual” permit. That permit, in turn, hinged on Dunbar receiving a Department of Health 401 Water Quality Certification.

Dunbar did not apply for the DOH certification. On October 24, 1994, the Department of Health filed a Notice and Finding of Violation against Dunbar, according to which Dunbar had violated the federal Clean Water Act on many occasions by discharging into the open waters silt from the rocks in the wall and a “blackish-brown liquid” from a pipe outfall that drained a small inland pond. In an accompanying DOH order, Dunbar was told to remove the fishpond wall within 180 days. Before applying for any new permit for fishpond “restoration,” the Department of Health said, Dunbar would have to complete removal of the present wall and “obtain written permission from the state Department of Land and Natural Resources to build or rebuild any fishpond or fishpond wall on state lands or submerged lands.” (Dunbar had not obtained this permission for his present wall.) Finally, Dunbar was put on notice that he faced fines of up to $10,000 a day for each day of violation.

On November 3 and 10, 1994, Dunbar, his attorney, William W.L. Yuen, and Department of Health representatives conducted “informal settlement conferences.” In the wake of those, the Department of Health backed away from its October 24 order. Instead, the DOH found, in an “Interim Order” dated November 15, that Dunbar “did not willfully fail to obtain a 401 Water Quality Certification” and “did not willfully violate state water pollution statutes or rules.”

Rather than force Dunbar to remove the wall, the interim settlement allowed him to undertake a study to determine whether the fishpond wall, as it stands, is still “significantly” contributing to turbidity in the water. If no pollution is found, then Dunbar gets to keep the wall, so far as the state is concerned. (Whether the Corps of Engineers will allow this is a separate matter. Dunbar still has no Corps permit for the wall.)

By mid-December, Dunbar had submitted his pollution study, done for him by David Ziemann of the Oceanic Institute, a consultant that has helped Dunbar frequently in the past. Assuming that the study finds no significant pollution, Dunbar is now to publish a notice inviting the public to comment on the study, the matter of the fishpond wall and pipe outfall pollution more generally, and the Department of Health’s proposal to settle the case without fines and without requiring fishpond wall removal.

All this has once again moved the irrepressible George Peabody, Moloka`i publisher and Dunbar’s long-standing nemesis, to inveigh against the powers that be that seem to protect Dunbar. In a comment published in Peabody’s Moloka`i Advertiser-News on December 14, Peabody noted that the state of Dunbar’s mind at the time he violated the law is irrelevant. He observed that it is “not likely that after three years of submersion in the rough tidal flushing at Kainalu” any significant quantity of silt will be found coming from the fishpond wall.

Parties wishing to comment on the Ziemann study should get in touch with either Denis Lau or Thomas Arizumi at the Department of Health Clean Water Branch (919 Ala Moana Boulevard, Room 301, Honolulu, Hawai`i 96814).

Hardin B.C. Tibbs, a strategic planner with the International Global Business Network, is the keynote speaker at the 1995 People’s Water Conference. Tibbs is noted for the development of the concept of industrial ecology, a concept that ties together economics, culture and the environment.
The conference will be held on January 14, from 8:30 a.m. to 4 p.m. at the University of Hawai`i Law School auditorium. Cost of registration is $10; a light lunch is available at cost.

According to Martha Black, founder of the People’s Water Conference, getting Tibbs to come to Honolulu from his home in Sydney was “a real coup.” Tibbs and the Global Business Network are striving to do nothing less than change the way business does business. Current patterns of industrial production are all but obsolete, Tibbs says, and in the future, businesses will have to manage from the perspective of the global environment.

For more information on the People’s Water Conference, inquiries may be directed to Martha Black. Her telephone on O`ahu is 395-2127.

The state Supreme Court has rejected the appeal by the Big Island electric utility of a lower court decision concerning its plans to expand the Keahole power plant. The Hawai`i Electric Light Company had appealed the decision of Third Circuit Court Judge Ronald Ibarra that a contested case hearing would need to be held on the power plant expansion by the end of December (“within 45 days of the filing” of his order, which occurred on November 9).

According to Don Horiuchi, a planner with the Department of Land and Natural Resources’ Office of Conservation and Environmental Affairs, Land Board Chairman Keith Ahue administratively extended the processing period through December 1995. Horiuchi said that to his knowledge, there had been no other progress in getting the contested case underway.

As of mid-December, United Towing Service owes the state $2,353.52 in rent on its month-to-month revocable permit. As reported by Environment Hawai`i in the [url=http://www.environment-hawaii.org/members_archives/archives_more.php?id=1315_0_30_0_C]November 1994 cover article[/url], United Towing allowed a company called United Environmental Services to build a medical waste incinerator on state land in `Aiea rented to the towing company. The incinerator operator sought to have the R.P. issued in its name, but, when the environmental assessment it prepared for the change in use turned out to be inadequate, the state ordered the incinerator off the site.

In the [url=/members_archives/archives_more.php?id=1330_0_30_0_C]December Island Watch[/url], Environment Hawai`i reported that the Department of Land and Natural Resources’ Division of Land Management was planning to notify United Towing Service that its own revocable permit would be cancelled — despite the DLM having submitted it to the Board of Land and Natural Resources for renewal at the November 18, 1994, meeting. According to Cecil Santos, DLM agent for the O`ahu district, United Towing was to be notified of the cancellation by letter in December, with the Land Board being asked to approve the cancellation at its meeting that same month.

The agenda for the December meeting did not include cancellation of United Towing’s R.P., however, and when staff at the DLM were asked about that, the response was that the letter to United Towing never got sent.

Meanwhile, United Towing appears to have stopped paying its $584-a-month rent. No payments have been received since before October.

— Patricia Tummons

Volume 5, Number 7 January 1995