{"id":10910,"date":"2019-01-29T19:15:41","date_gmt":"2019-01-29T19:15:41","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=10910"},"modified":"2020-07-06T22:47:31","modified_gmt":"2020-07-06T22:47:31","slug":"board-denies-haseko-access-to-create-drainage-at-oneula","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=10910","title":{"rendered":"Board Denies Haseko Access To Create Drainage at Oneula"},"content":{"rendered":"\n

After a series of setbacks, those seeking to protect limu resources in Ewa Beach got a reprieve at the December meeting of the Board of Land and Natural Resources. The board voted 6-1 to deny an easement and construction right-of-entry permit for a drainage project at Oneula Beach Park intended to allow more runoff from Kaloi Gulch to enter the ocean.<\/p>\n\n\n\n

For more than a decade, Haseko (Ewa), Inc., has advocated for the drainage improvements. The Ocean Pointe developer originally intended to direct runoff from its residential project into the marina it planned to build, but was thwarted by the City and County of Honolulu over worries that the proposed drainage channel would interfere with a sewage outfall in the area. Instead, the city granted Haseko a Special Management Area use permit to alter a sand berm at the nearby beach park to allow stormwater to enter the ocean there.<\/p>\n\n\n\n

However, when Haseko came to the Land Board in 2007 for a Conservation District Use Permit (CDUP) for the project, native Hawaiian cultural practitioners who gather limu from the area objected and initiated a contested case hearing. Following the recommendation of its hearing officer, the Land Board voted in January 2009 to deny Haseko\u2019s permit application because it felt that with the proper infrastructure, runoff could be contained within the 7,500-acre gulch.<\/p>\n\n\n\n

Haseko tried again to obtain a CDUP in 2012, this time with a slew of new co-applicants: the University of Hawaii-West Oahu, the Department of Hawaiian Home Lands (DHHL), and the Honolulu Department of Planning and Permitting (DPP). The university and DHHL lobbied for the drainage project because it would allow them to develop lands designated for runoff retention. Then-DPP director David Tanoue called the drainage project a \u201ckey component of continued development of Kapolei as a second city.\u201d<\/p>\n\n\n\n

The board approved the permit, which was again challenged by limu gatherer Henry Chang Wo. After another contested case hearing, the Land Board voted in June 2014 to uphold its approval. Chang Wo, represented by the Native Hawaiian Legal Corporation, challenged the decision in 1st Circuit Court, which remanded to the board the matter of whether a supplemental environmental impact statement (SEIS) needed to be done because an endangered Hawaiian monk seal had been spotted in the project area.<\/p>\n\n\n\n

Before the board decided on that issue, however, Chang Wo died and efforts to fulfill his request that the community group KUA replace him were unsettled at the time of the Land Board\u2019s December 2018 meeting. The courts had, however, recently denied efforts by the NHLC to stay work on the berm pending the outcome of its appeal.<\/p>\n\n\n\n

Because the CDUP requires construction begin to begin in a year and be completed in three, Haseko sought the board\u2019s permission in December to access the land and begin work. According to a report from the Department of Land and Natural Resources\u2019 Land Division, the berm alterations would take about one month to complete.<\/p>\n\n\n\n

Questionable Need<\/h4>\n\n\n\n

Because the Land Board had issued a CDUP for the project and determined that an SEIS was not required, the granting of an easement and right-of-entry permit might have seemed like a foregone conclusion to some. It wasn\u2019t.<\/p>\n\n\n\n

When the board took up Haseko\u2019s request, board members immediately questioned the company\u2019s attorney, Yvonne Izu, about why the project was necessary, especially when Izu had informed the board that Haseko\u2019s developments in the area had adequate stormwater storage.<\/p>\n\n\n\n

\u201cWhy do you need this if you have storage?\u201d Land Board chair Suzanne Case asked. Kauai board member Tommy Oi then said he would support lowering the berm only when it becomes necessary. He later noted that on Kauai, sand at river mouths is removed during emergencies, but is brought back afterward.<\/p>\n\n\n\n

Board member Chris Yuen, however, said he thought there was no harm in lowering the berm now and added that parts of Ocean Pointe could flood if the project did not proceed. Lowering the berm by four feet would allow a 10-year storm to overtop the berm, he said.<\/p>\n\n\n\n

\u201cIf it\u2019s greater than a 20-year storm, it will overtop the berm anyway,\u201d Izu added.<\/p>\n\n\n\n

Board member Downing pointed out that Haseko\u2019s onsite storage could probably hold 10-year-storm flows.<\/p>\n\n\n\n

\u201cIt may,\u201d Yuen acknowledged, before adding that such things are hard to determine with much certainty.<\/p>\n\n\n\n

To Downing, the potential impacts of sea level rise also needed to be considered. He asked how many feet sea level needed to rise before the ocean starts flooding the area. According to the Land Division report, Haseko plans to lower the berm and raise the channel bed at Oneula Beach Park, resulting in a 500 x 100-foot grassy swale 4.5 feet above mean sea level. <\/p>\n\n\n\n

The Honolulu Climate Change Commission has advised that planning and development along the shoreline should take into account a rise in sea level of between 3.2 feet and six feet. Also, a recent study by University of Hawaii researchers found that a four-foot rise in sea level at Ewa Beach would result in \u201cenormous flooding\u201d by groundwater and the ocean.<\/p>\n\n\n\n

\u201cIf we start lowering things on our island for a 10-year flood \u2026 there\u2019s more chance of ocean going in than flood going out,\u201d Downing said.<\/p>\n\n\n\n

\"\"
The Kaloi gulch drainage project area overlaid onto the 3.2 ft. sea level rise exposure area.<\/figcaption><\/figure>\n\n\n\n

Yuen replied that in the coming decades, someone could put the berm back, and with sea level rise, \u201cthe berm will start to eat away, too.\u201d<\/p>\n\n\n\n

Several members of the public, including KUA members, testified in opposition. KUA\u2019s Wally Ito testified that storm water was harmful to limu and that increased urbanization resulted in less recharge to the aquifer. KUA executive director Kevin Chang also questioned whether limu in the area would be safe to eat if it\u2019s exposed to all the heavy metals and motor oils that are carried in stormwater runoff.<\/p>\n\n\n\n

\u201cDo the right thing for our resource. \u2026 There are options other than cutting down the sand berm,\u201d Ito said.<\/p>\n\n\n\n

\u201cWe believe you must ask yourself whether the applicant \u2026 will not interfere with a public trust purpose,\u201d Chang later added.<\/p>\n\n\n\n

Michael Kumukauoha Lee, who had opposed the CDUP a decade ago, suggested that the Land Board require all users of the outflow to \u201cput in scrubbers so runoff doesn\u2019t affect the limu\u201d and to require an SEIS. He said he would request a contested case hearing if the board did not agree to his recommendations.<\/p>\n\n\n\n

Effects on Limu<\/h4>\n\n\n\n

With the CDUP-related matters still under appeal, NHLC attorney Alan Murakami argued that the Land Board was required to take a precautionary approach in evaluating Haseko\u2019s request. In the contested case hearing and court records, he argued, there had been no affirmative showing that the additional runoff resulting from the berm alteration won\u2019t harm the limu or its consumers.<\/p>\n\n\n\n

To this, board chair Case said she was confused by Murakami\u2019s arguments. \u201cThis is a request to grant an easement. \u2026 The substantive issues have already been evaluated [in the CDUP hearings],\u201d she said.<\/p>\n\n\n\n

\u201cNo, they have not been,\u201d Murakami replied, noting that KUA has so far been barred from making substantive arguments before the board and is appealing that situation.<\/p>\n\n\n\n

He also pointed out that Izu was the only person present to argue in favor of the easement and right-of-entry permit. No one from DHHL, DPP, or the university showed up to testify in support. What\u2019s more, Murakami said, Haseko has indicated it does not need the berm to be lowered to complete its development projects. Given that, \u201cWhat is the rush to grant this easement?\u201d he asked.<\/p>\n\n\n\n

Yuen replied that he, too, wants the case to be heard on the merits and was disappointed that the court did not support the Land Board\u2019s decision to allow KUA to replace Chang Wo as the petitioner. However, he continued, the kind of storm that would cause runoff to overtop a lowered berm would also result in dirty water flowing into the ocean everywhere else. \u201cThose were the findings at the end of the contested case hearing. I think they\u2019re well supported. You can challenge that. I hope you get the chance to challenge that [but] I don\u2019t think a day [of] water going into ocean, rapidly dispersed, is going to affect limu,\u201d he said.<\/p>\n\n\n\n

Murakami conceded that Yuen\u2019s take on runoff effects was probably true from the standpoint of a casual beachgoer. \u201cOur clients are dealing with actual consumption,\u201d Murakami pointed out, adding that the Land Board is required to find that the project poses no harm to the health of those who gather and consume limu from the area.<\/p>\n\n\n\n

\u201cYes, there\u2019s reason for concern. Nobody likes pollution, [but] you\u2019re talking about absorbing toxins by a plant. A plant will not absorb toxins in a day,\u201d Yuen replied.<\/p>\n\n\n\n

\u201cIf that is so, an expert should be able to say that,\u201d Murakami said.<\/p>\n\n\n\n

Board member Downing also took issue with Yuen\u2019s characterization of the problem.<\/p>\n\n\n\n

\u201cI cannot sit here and listen to someone tell me or say that one hour of freshwater, two hours of stormwater, cannot destroy things,\u201d Downing said.<\/p>\n\n\n\n

\u201cNo, I said the toxins would not be absorbed in an hour,\u201d Yuen interjected.<\/p>\n\n\n\n

Even so, Downing continued that recent heavy rains in Aina Haina, where he lives, resulted in thousands of dead shrimp and some dead octopuses on the beach. <\/p>\n\n\n\n

\u201cI\u2019ve never seen so many mantis shrimp on my beach. That was just a few hours of fresh water,\u201d he said. As for limu, \u201cthe silt that\u2019s going to come down is going to strangle the limu. \u2026 I\u2019m not the scientist, but I saw it happen. The only limu that survives this is the gorilla ogo and the mudweed [both introduced species],\u201d he said.<\/p>\n\n\n\n

Yuen noted that the effects of runoff can differ from spot to spot, depending on how much mixing there is and how long the freshwater is in contact with the ocean floor. In the case of Oneula Beach Park, \u201cwe had this hearing, we had testimony, we had the findings \u2026 that the storm runoff was not likely to harm the creatures,\u201d Yuen said.<\/p>\n\n\n\n

Murakami noted that the board\u2019s decisions in this case have not been unanimous and said he hoped further evidence would convince the board not grant the permit and easement.<\/p>\n\n\n\n

Board member Stanley Roehrig agreed with Murakami about the need to take a precautionary approach and made a motion to deny Haseko\u2019s request. He said lowering the berm should only be allowed if there is an emergency proclamation by the governor.<\/p>\n\n\n\n

Yuen said he preferred to defer the matter pending a decision on the appeals by the court.<\/p>\n\n\n\n

The rest of the board, however, seemed to side with Roehrig.<\/p>\n\n\n\n

Before the vote, Izu made one last comment. \u201cThis thing about the impact on limu \u2026 that was all part of the contested case. This board nevertheless approved the CDUP. I don\u2019t think this is the time to re-litigate these issues. If you would like to defer it because it\u2019s not needed now, that\u2019s the board\u2019s decision and something I could live with.\u201d<\/p>\n\n\n\n

Downing seemed to oppose the project for reasons that went beyond the impacts to limu and its consumers. \u201cThe more people we get, the more resources we lose. Where is balance? I\u2019m not for one side or the other. Yes, limu is important to me. I grew up on the beach. Development is important to me, but where is the balance? \u2026 How much do we need to develop?\u201d he said.<\/p>\n\n\n\n

In the end, the board voted to deny the easement and right-of-entry permit. <\/p>\n\n\n\n

\u201cI think it\u2019s premature. The procedural issues haven\u2019t been worked out,\u201d Case said.<\/p>\n\n\n\n

Yuen was the sole dissenter.<\/p>\n\n\n\n

For Further Reading\n<\/em><\/p>\n\n\n\n

\u2022\u201cLimu Stewards Oppose Plan to Alter Sand Berm in \u2018Ewa<\/a>\u201d, Board Talk, May 2012; <\/p>\n\n\n\n

\u2022\u201cBoard Grants Contested Case on Kalo\u2018i Gulch Berm Project<\/a>,\u201d Board Talk, October 2012; <\/p>\n\n\n\n

\u2022\u201cFight Over \u2018Ewa Drainage Project Continues as Limu Gatherer Challenges It in Court<\/a>,\u201d October 2014; <\/p>\n\n\n\n

\u2022\u201cDoes the Kalo\u2018i Drainage Project Need a New EIS<\/a>?\u201d EHxtra, April 1, 2015; <\/p>\n\n\n\n

\u2022\u201cFuture of Kalo\u2018i Gulch Case Hinges On Limu Group Replacing \u2018Uncle Henry<\/a>,\u2019\u201d November 2015; <\/p>\n\n\n\n

\u2022\u201cNHLC: It Would Be \u2018Illogical, Unfair\u2019 To Bar Substitution in Kalo\u2018i Gulch Case<\/a>,\u201d December 2015; <\/p>\n\n\n\n

\u2022\u201cCircuit Court Dismisses Appeal Of Kalo\u2018i Gulch Permit<\/a>,\u201d November 2017. <\/p>\n","protected":false},"excerpt":{"rendered":"

After a series of setbacks, those seeking to protect limu resources in Ewa Beach got a reprieve at the December meeting of the Board of Land and Natural Resources. The board voted 6-1 to deny an easement and construction right-of-entry … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":10913,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[448],"tags":[3],"class_list":["post-10910","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-february-2019","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10910","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10910"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10910\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/10913"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10910"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10910"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10910"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}