{"id":12097,"date":"2020-01-01T02:07:44","date_gmt":"2020-01-01T02:07:44","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=12097"},"modified":"2020-01-02T18:15:53","modified_gmt":"2020-01-02T18:15:53","slug":"molokai-flooding-frustrates-residents-who-now-face-epa-doh-enforcement","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=12097","title":{"rendered":"Moloka\u2018i Flooding Frustrates Residents Who Now Face EPA, DOH Enforcement"},"content":{"rendered":"\n
\"\"
Charles Miguel Sr. digging out the sand plug at Waialua Stream. Note high water under bridge. Photo courtesy Debra Mapel<\/figcaption><\/figure>\n\n\n\n

The forecast for Moloka\u2018i was grim in late August of 2018. Hurricane Lane, a category 5 hurricane, was on a track that put the Friendly Isle in its cross hairs.<\/p>\n\n\n\n

Charles \u201cChucky\u201d Miguel Sr. was taking no chances. The lot on which his house sits does not directly abut Waialua Stream, but it is close enough \u2013 about 200 feet from the western bank of this perennial stream on Moloka\u2018i\u2019s southeastern coast \u2013 that high water generated by heavy rains or ocean swells rushing inland could flood his carefully tended gardens and lawn.<\/p>\n\n\n\n

On Wednesday, August 22, ahead of Lane\u2019s anticipated arrival on Friday, Miguel and a few of his neighbors grabbed their shovels and dug a channel through the sand bar that regularly forms at the mouth of the stream, blocking its flow and causing it to flood its banks upstream.<\/p>\n\n\n\n

In addition, Miguel cleared downed trees from the stream.<\/p>\n\n\n\n

Moloka\u2018i avoided a direct hit from Lane, although power outages occurred throughout Maui County.<\/p>\n\n\n\n

But with another two months in Hawai\u2018i\u2019s hurricane season, Miguel continued to be worried about potential flooding.<\/p>\n\n\n\n

Debra Mapel, whose house is to the east of the stream, often assists Miguel with the heavy task of digging through the sand bar. If the plug isn\u2019t cleared, she told Environment Hawai\u2018i<\/em>, there\u2019s the real danger that the stream will be effectively dammed. Water in the stream will rise and the debris it carries \u2013 rocks and vegetation from erosion along the channel upstream and branches shed by invasive Java plum trees, among other things \u2013 can wash up against the bridge just a few hundred feet away from the ocean. That bridge carries the only road, Kamehameha V Highway, that links Moloka\u2018i\u2019s central town of Kaunakakai and its airport to Halawa Valley on the island\u2019s eastern tip, around 9 miles away from the Waialua Stream bridge.<\/p>\n\n\n\n

\u201cIf the bridge clogs, we\u2019re doomed,\u201d Mapel said.<\/p>\n\n\n\n

\u2018We Had to Do Something\u2019<\/strong><\/p>\n\n\n\n

On September 1, a tropical depression formed in the eastern Pacific Ocean, southwest of Mexico. A few days later, it became a tropical storm named Olivia. By September 7, it was a Category 4 hurricane headed straight to Hawai\u2018i.<\/p>\n\n\n\n

The forecasts were alarming.<\/p>\n\n\n\n

\u201cWhen you have the governor and mayor on television, predicting doom and gloom, we had to do something,\u201d Mapel said. \u201cNobody was coming to help us.\u201d<\/p>\n\n\n\n

Beginning on September 6, Miguel and Mapel began work on what Mapel describes as a catchment basin. \u201cIt was a joint project,\u201d Mapel said. \u201cI bought the fuel, he drove the equipment.\u201d Miguel, a retired heavy equipment operator, drove a mini-excavator through property owned by Mapel and her partner, Jules Dudoit, onto two vacant lots immediately east of the stream. They then began creating an area intended to capture the stream\u2019s burden of debris, branches, and rocks before it entered the oxbow bend just upstream of Miguel\u2019s property.<\/p>\n\n\n\n

On September 9, in anticipation of Hurricane Olivia hitting the isles, Governor David Ige signed an emergency proclamation declaring all four counties disaster areas. Two days later, Moloka\u2018i felt the storm\u2019s impact, with Olivia dumping 10 inches of rain on Moloka\u2018i in 24 hours.<\/p>\n\n\n\n

\u201cMiguel\u2019s yard filled with debris and we all flooded,\u201d Mapel said. \u201cThe sand plug was blown out, but eventually high tides brought it back inside the stream.\u201d<\/p>\n\n\n\n

At some point in September, someone notified federal, state, and county agencies of the work Miguel and Mapel were undertaking.<\/p>\n\n\n\n

On October 10, two inspectors from the Army Corps of Engineers visited the site. They estimated the basin \u2013 now called a diversion \u2013 to be about 450 feet long, 12 feet wide at the base, and 22 feet wide at the high water mark. From these dimensions, they figured the total area of excavation came to roughly a quarter of an acre and that some 1,679 cubic yards of material had been displaced from the vacant lots, which they determined were part of a wetland. It was their conclusion that this constituted a violation of the Clean Water Act. <\/p>\n\n\n\n

Miguel says he was just following the stream\u2019s original alignment.<\/p>\n\n\n\n

\u201cThe reports make it sound like we dug the Panama Canal,\u201d Mapel said.<\/p>\n\n\n\n

\"\"
Waialua Stream flooding the Kamehameha V Highway during Hurricane Olivia. Photo courtesy of Debra Mapel.<\/figcaption><\/figure>\n\n\n\n

Ownership Issues<\/strong><\/p>\n\n\n\n

Miguel does not own either of the two properties that were bisected by the channel he dug. He and Mapel had earlier received permission to clear invasive vegetation from one owner, who was not on the island when the storms hit.<\/p>\n\n\n\n

In any event, obtaining permission from all the landowners would have been \u2013 and still is \u2013 problematic. One of the lots is owned by a family estate and an individual living on the mainland; taxes on that one-acre lot haven\u2019t been paid in a decade. The other lot, about a third of an acre, has no fewer than 15 owners listed in county property tax records. Several of them are identified as deceased, others have no known address, and still others have mainland addresses in California and Florida. Taxes on this lot as well have been unpaid for more than a decade.<\/p>\n\n\n\n

Yet in their report, the Corps of Engineers inspectors noted no such problem in obtaining owner permission to visit the site. \u201c[T]he Corps received verbal permis- sion for access over the phone from Mr. Paul Cullen, land owner, on September 28,\u201d their report states.<\/p>\n\n\n\n

\u201cOh, God. Paul Cullen. Our worst nightmare.\u201d<\/p>\n\n\n\n

That was Mapel\u2019s response when asked about Cullen\u2019s involvement. \u201cHe lives in a blue tarp about a quarter-mile down the road,\u201d she said. \u201cHe asked the county real property tax office to put his name on the tax record for one of the lots adjoining the stream, but he\u2019s not <\/em>an owner.\u201d<\/p>\n\n\n\n

The property tax record for the larger parcel does display Cullen\u2019s name \u2013 but does not identify him as an owner. Mapel said that she had asked the tax office about this and was told that anyone can add their name to a property tax record as an \u201caddressee.\u201d<\/p>\n\n\n\n

(Environment Hawai\u2018i <\/em>made several calls to Maui County tax officials to explain how this could happen; none was returned by press time.)<\/p>\n\n\n\n

Cullen also held himself out to be an owner when two Department of Health Clean Water Branch investigators, Bobbie Teixeira and Steven Chase, came to Moloka\u2018i on October 12. Accompanying them were Connor Adams of the Environmental Protection Agency and Anthony Fukuoka, a building inspector from Maui County.<\/p>\n\n\n\n

In her write-up of the site visit, Teixeira noted that \u201cMr. Paul Cullen identified himself as a property owner.\u201d She went on to note, however, that he was not listed as an owner in Maui County real property tax records.<\/p>\n\n\n\n

Enforcement<\/strong><\/p>\n\n\n\n

\"\"
A photo included in the DOH inspection report shows the view facing upstream near the channel dug out by Miguel. To the left (blue arrow) is Waialua Stream; the red area points to the diversion.
<\/figcaption><\/figure>\n\n\n\n

At the time of the visit, Teixeira later wrote in the inspection report, \u201cthe diversion was open at both sides. Water from Waialua Stream was actively flowing through the diversion. Bare soil was observed within the diversion at the bottom and along the banks. Flow observed in the diversion was turbid brown. … The slopes along the diversion were exposed and unstabilized.\u201d<\/p>\n\n\n\n

Mapel disputes Teixeira\u2019s claim that the area dug out by Miguel connected to the stream on both ends. \u201cTwo days earlier, when the Corps inspection occurred, photos showed the channel dry and returning to natural grade, not going completely across the makai lot,\u201d she said. \u201cBut it had rained up the mountain the night before the DOH and EPA arrived, so brown water was flowing across the property.\u201d<\/p>\n\n\n\n

Miguel, Teixeira wrote, \u201cstated that all work was done in preparation or response to impacts of several storms.\u201d She then added, \u201cDuring the 2018 hur- ricane season, multiple hurricanes and tropical storms were forecasted to impact the Hawaiian Islands. An Office of the Governor State of Hawai\u2018i Emergency Proclamation was issued for Hurricane Lane suspending Hawai\u2018i Water Pollution Laws …. However, a proclamation suspending [laws] for Hurricane Olivia was not declared.\u201d<\/p>\n\n\n\n

\u201cTeixeira is wrong,\u201d Mapel said. \u201cThe original proclamation was extended to a later date that included Hurricane Olivia.\u201d<\/p>\n\n\n\n

Miguel admitted that he had obtained no permits for the work from any agency. \u201cHowever,\u201d Teixeira said in her report, \u201che believed a 1986 Reconnaissance report written by the Soil Conservation Service provided coverage for the diversion work.\u201d<\/p>\n\n\n\n

On October 23, the Department of Health ordered Miguel to cease work. In a follow-up call from Teixeira in Decem- ber, Miguel acknowledged receiving the letter and said he had been advised by the county \u201cto either obtain a grading permit or restore the ditch.\u201d \u201cMr. Miguel stated that a grading permit was not obtained and no work at the ditch has been done,\u201d Teixeira wrote in her report of the call.<\/p>\n\n\n\n

On February 20, the Department of Health issued a Notice of Violation and Order to Miguel. Among other things, it required Miguel to submit a corrective action plan to the DOH within 60 days and, after receiving DOH approval, implement it within 30 days. In addition to receiving authorization from the private landowners and county, state, and federal agencies, \u201cthe corrective action plan must clearly detail how you will restore the diversion to pre-existing conditions as well as the Best Management Practices that will be implemented to prevent further discharges,\u201d the order reads.<\/p>\n\n\n\n

Also, Miguel was to pay an administrative penalty of $20,000 within 20 calendar days of the date the NOVO was served. <\/p>\n\n\n\n

As allowed, Miguel requested a hearing, where Miguel could be assisted by counsel and present evidence and witnesses. Teixeira told Environment Hawai\u2018i<\/em>, \u201cScheduling a hearing is pending, based on the outcome of ongoing negotiations.\u201d<\/p>\n\n\n\n

The Resolution<\/strong><\/p>\n\n\n\n

The EPA undertook its own investigation, sending a formal request for information to Miguel on April 4, 2019. (Explaining the dual enforcement actions, Teixeira said, \u201cWhile the DOH and EPA often communicate and coordinate, both agencies are free to act independently of each other. In this case, both agencies took separate actions but seek similar outcomes.\u201d)<\/p>\n\n\n\n

Miguel responded to the EPA six weeks later, providing additional information and photographs. At that time, he said that he had begun earthmoving activity at the site on August 22 and did not cease work until after October 1.<\/p>\n\n\n\n

In the consent order that the EPA eventually worked out with Miguel, the EPA notes that the wetlands \u201cabut a perennial stream … which is a tributary to the Pacific Ocean, which are all \u2018navigable waters\u2019 and \u2018waters of the United States\u2019\u201d under the federal Clean Water Act. Miguel\u2019s work resulted in \u201cearthen and biological materials, such as dirt, rocks, sand, and vegetative matter,\u201d being placed in the water and wetlands. \u201cBy discharging dredged and fill material into waters of the U.S. without a … permit, [Miguel] has violated and continues to violate\u201d Sections 301(a) and 404 of the Clean Water Act.<\/p>\n\n\n\n

The consent order, signed by Miguel and effective on October 30, requires him to submit a draft restoration plan within 30 days of that date. Upon approval of the plan by the EPA, Miguel is to \u201cobtain all the necessary and applicable federal (e.g., Corps authorization), state or local permits to conduct site wetland restoration activities described in the plan.\u201d In addition, he is required to \u201cobtain written consent from the current landowners to conduct such work on the site.\u201d The restoration work is to be completed within 90 days of the approval.<\/p>\n\n\n\n

Should Miguel not be able to obtain the landowners\u2019 consent, or if he does not submit the required restoration plan, or if the EPA does not approve his plan, then he needs to prepare a mitigation plan. That plan, the consent order states, has to provide a \u201c3:1 replacement to impact ratio\u201d for the impacted wetlands \u2013 in other words, given that Miguel disturbed a quarter-acre of wetlands, he would need to provide mitigation for three-quarters of an acre of wetland loss. That could take the form of restoring wetlands elsewhere in the Waialua Stream watershed or require the purchase of mitigation credits \u201cat a qualified mitigation bank.\u201d<\/p>\n\n\n\n

Miguel told Environment Hawai\u2018i <\/em>that Alan Matsuda, an engineer on Maui, helped in preparing a restoration plan and that he did submit a plan by the deadline. At press time, Miguel and Mapel said EPA had not informed them that the plan had been approved.<\/p>\n\n\n\n

In its press release announcing the consent order, the EPA\u2019s Mike Stoker, administrator for the agency\u2019s Pacific Southwest Region, stated: \u201cWetlands have a unique ecological importance on the island of Moloka\u2018i and must be protected. Healthy wetlands help filter stormwater, create sustainable habitats, and buffer communities from flooding.\u201d<\/p>\n\n\n\n

Mapel agrees, but adds, \u201cIn this case, the unhealthy and unmanaged wetlands have led to flooding, erosion, and ultimately reduced stream flow, which is not sufficient to blow out the sand plug.\u201d<\/p>\n\n\n\n

An Altered Channel<\/strong><\/p>\n\n\n\n

Mapel expressed frustration over the difficulties she and Miguel have experienced in their attempts to keep the stream flowing to the ocean by clearing a channel through the sand bar and dislodging debris that has been caught by the bridge.<\/p>\n\n\n\n

\u201cThe flooding has been going on a long time,\u201d she said. \u201cFor years, Chucky and I worked every agency. Everybody said it\u2019s not their kuleana.\u201d<\/p>\n\n\n\n

More than a year after Miguel tried to divert the stream, \u201cit\u2019s filled up with rocks already,\u201d Mapel said. She asked the DOH to revisit the site, but no one has yet come.<\/p>\n\n\n\n

\u201cThe stream used to go straight at one time,\u201d she said. \u201cNow, every storm, it gets worse,\u201d with the water taking huge chunks out of the land in the curve of the bow.<\/p>\n\n\n\n

U.S. Geological Survey maps of eastern Moloka\u2018i bear out the claim of Mapel and Miguel that the natural channel of the stream has changed. The 1983 quad map of the area shows the stream entering the ocean practically perpendicular to the coast and the highway. There is no oxbow.<\/p>\n\n\n\n

\"\"
A 1983 USGS map shows Waialua stream flowing straight into the sea.<\/figcaption><\/figure>\n\n\n\n

Today, the curve in the stream just mauka of the bridge is pronounced and the area where the channel goes under the bridge has shifted sharply to the north and east.<\/p>\n\n\n\n

Mapel identified no shortage of contributing factors: the Java plum trees that have taken over areas that used to be carefully tended taro patches; the trails created by deer that then become highways for dislodged rocks and sediment; the high tides, higher king tides, and the rising sea level that wash sand into the stream mouth; and, not least, people who deliberately toss cut trees and other debris into the stream.<\/p>\n\n\n\n

\u201cThe waterway isn\u2019t maintained,\u201d Mapel said.<\/p>\n\n\n\n

A spokesperson for the state Department of Transportation was asked if the DOT had any responsibility to keep the stream clear as it passes under the bridge. She stated that the bridges and culverts on state roads are checked before approaching storms and also on twice-a- year inspections. If residents notice the sandbar clogging up flows at the stream mouth, they can ask the DOT to dredge it, she said.<\/p>\n\n\n\n

In the meantime, the tides and storms continue to bring sand up the channel. In late December, it flooded again, Mapel said. \u201cChucky and Jules were over there with their shovels trying to open the sand plug on Christmas morning.\u201d <\/p>\n\n\n\n

More to Come?
<\/h3>\n\n\n\n

The Hawai\u2018i Water Code requires permits be obtained for any work that alters a stream channel. <\/p>\n\n\n\n

But as of press time, the Commission on Water Resource Management, which is responsible for investigating possible infractions and enforcing the Water Code, had not brought any enforcement action against Miguel.<\/p>\n\n\n\n

A.J. McWhorter, a spokesperson for the Department of Land and Natural Resources, to which CWRM is administratively attached, said the agency \u201cis planning to meet with the Department of Health\u2019s Clean Water Branch in January to discuss and understand the situation, particularly with regards to the EPA\u2019s actions, and to assess its own follow-up actions.\u201d<\/p>\n\n\n\n

The 2018 diversion is not the first time that Miguel has come to the attention of CWRM for his work in Waialua Stream. Teixeira\u2019s inspection report includes this note: \u201cOn November 8, 2018, the Department of Land and Natural Resources provided the DOH-CWB with an investigation report that was conducted on March 4, 2010, in response to an alleged river diversion of Waialua Stream. The investigation report documented that Mr. Charles Miguel cleared land with a bulldozer with the intention of returning Waialua Stream to its original flow.\u201d<\/p>\n\n\n\n

When asked about this, Miguel told Environment Hawai\u2018i <\/em>that he did \u201cclean\u201d the stream on the ocean side of the bridge a while back, but was never cited for that.<\/p>\n\n\n\n

Mapel said that when she and Miguel were digging the ditch that is now the subject of so much agency attention, DLNR staff from its Division of Conservation and Resource Enforcement were actually on site. DOCARE officers informed Mapel and Miguel that they saw no problem with the work being done, since it was on dry land and did not involve any stream diversion.<\/p>\n\n\n\n

\u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

The forecast for Moloka‘i was grim in late August of 2018. Hurricane Lane, a category 5 hurricane, was on a track that put the Friendly Isle in its cross hairs. Charles “Chucky” Miguel Sr. was taking no chances. The lot … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":12098,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[463],"tags":[7],"class_list":["post-12097","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-january-2020","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12097","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=12097"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12097\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/12098"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12097"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12097"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12097"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}