{"id":16012,"date":"2024-06-11T11:09:34","date_gmt":"2024-06-11T21:09:34","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=16012"},"modified":"2025-04-19T10:29:51","modified_gmt":"2025-04-19T20:29:51","slug":"board-talk-uxo-permit-kaua%ca%bbi-mosquito-control","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=16012","title":{"rendered":"BOARD TALK: UXO Permit, Kaua\u02bbi Mosquito Control"},"content":{"rendered":"\n

Dispute Over Permit Terms Nearly Derails Ordnance Sweeps on O\u02bbahu, Hawai\u02bbi Island<\/strong><\/p>\n\n\n\n

\u201cIt is kind of the tail wagging the dog,\u201d land agent Michael Ferreira told the state Board of Land and Natural Resource at its May 24 meeting, referring to a request by the U.S. Army Corps of Engineers to use its own right-of-entry permit form, rather than the one the state normally uses, to cover survey work planned for formerly used defense sites (FUDS) on O\u02bbahu and Hawai\u02bbi island.<\/p>\n\n\n\n

Last October, the Land Board approved the issuance of a right-of-entry permit to the Army Corps that would allow it to remediate unexploded ordnance and other hazardous materials left by the military on nearly 30,000 acres of state land. The permit covered a total of 105 parcels and included a set of conditions that the Land Division of the Department of Land and Natural Resources had included in previous permits for more than a decade.<\/p>\n\n\n\n

After the board\u2019s decision, however, the Army Corps confessed that it could not sign the new permit due to \u201cpolicy changes,\u201d according to a Land Division report. Instead, the Corps offered its own right-of-entry permit to be used not just for the 105 sites that were the subject of the October action, but for all future remediation activities on state-owned FUDS.<\/p>\n\n\n\n

The Army Corps\u2019 proposed permit was much narrower in scope. It would allow for investigation work only, including soil sampling, monitoring well installation, geophysical surveys, and surface vegetation clearing. The agency would seek separate approvals for any remediation activities found to be necessary.<\/p>\n\n\n\n

What\u2019s more, the proposed new permit lacked \u201cprotections in favor of the state, including insurance coverage to be provided by USACE’s contractors and consultants and a type of indemnity tailored to fit the context of a federal permittee,\u201d the Land Division\u2019s report to the board stated. It continued that \u201cany claims asserted against the state by third parties under the [state\u2019s version of the] ROE are the responsibility of the federal government, subject to appropriation of funds by Congress. Land Division believes these protections are necessary, especially since USACE engages in hazardous activities on the permitted lands, including detonation of UXO in place under some circumstances. In contrast, the USACE form affords no protections to the state and even imposes liability on the State if the ROE is terminated short of the agreed term.\u201d<\/p>\n\n\n\n

The Land Division also noted that the Army Corps form requires the ROE to remain effective until USACE has completed its work on the relevant parcel, which was estimated to be by June 2028. \u201cState law limits the term of ROEs to one year, subject to continuance by the Board (or Chairperson if authority is delegated to her) on a month-to-month basis for additional one-year periods,\u201d the division stated.<\/p>\n\n\n\n

With the Army Corps already having contractors ready to start remediation projects, it urged the state to quickly resolve the matter. In fact, for work planned at Makalapa Elementary School on O\u02bbahu, the Corps bypassed the Land Board altogether. The Corps got the state Department of Education to sign the new ROE permit form. The school was set aside to the DOE by a Governor’s Executive Order. <\/p>\n\n\n\n

\u201cTo expedite its entry onto the site in March 2024, USACE took the view that the signature of the legal landowner of the property, i.e., the Board, was not required on the ROE,\u201d the Land Division stated.<\/p>\n\n\n\n

In June, the Corps was prepared to have its contractors start work in the former Waikoloa Maneuver Area on Hawai\u02bbi island. It met with Land Division staff and its counsel on May 1, stressing the urgent need for the state to agree to the Corps’ ROE permit.<\/p>\n\n\n\n

\u201cAt the meeting, USACE offered to have its contractors add DLNR as an additional insured on their insurance policies,\u201d the Land Division staff stated in its report to the board. This \u201cwould allow DLNR to look to USACE’s contractors for relief if claims were asserted against the State for cleanup related incidents under the ROEs. Further, USACE wants project-specific ROEs signed while the DLNR believes blanket approvals for one-year periods present a workable approach with less paperwork.\u201d<\/p>\n\n\n\n

Also at that same meeting, the staff report went on to say, \u201cUSACE explained that if the State refuses USACE entry onto lands contaminated by the United States military, the State will assume liability for the contamination under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended( CERCLA). Land Division staff requested USACE to provide a citation to the U.S. Code or Code of Federal Regulations as authority for this proposition, but USACE had not done so by the date of writing this submittal. Staff understands CERLCA imposes liability on any owner of contaminated land or any person who caused the contamination, which in this case is the United States military. It is not clear to staff that liability can be transferred solely to the State if the State does not allow USACE entry onto its lands using the one-sided USACE ROE form.\u201d <\/p>\n\n\n\n

Because the Army Corps had \u201cmade abundantly clear that its ROE form must be used for the project,\u201d the Land Division, \u201cwith grave reservations,\u201d was asking the Land Board to amend its October 13 decision \u201cby authorizing the use of the USACE ROE form instead of the form previously used for USACE’s environmental remediation of FUDS on state lands, provided that USACE require its contractors and consultants to list the State of Hawai\u02bbi, Department of Land and Natural Resources, as an additional insured on all insurance policies required under the cleanup contracts with USACE.\u201d<\/p>\n\n\n\n

\u201cIf we decide we don\u2019t sign it, they will move on and they will not do the project. Basically, we have to sign their form or they will not clean up the land,\u201d Land Division administrator Russell Tsuji told the board.<\/p>\n\n\n\n

Ferreira added that during negotiations with the DLNR, the Army Corps did agree to use the state\u2019s ROE form for non-FUDS state lands, such as those occupied by Parker Ranch. \u201cWe end up having to go after the contractor if heaven forbid there was any kind of incident. But it was kind of better than nothing,\u201d he said.<\/p>\n\n\n\n

The Corps\u2019 form would only be used for FUDS, which are properties that were used by the Department of Defense but transferred from its control prior to October 17, 1986.<\/p>\n\n\n\n

Board chair Dawn Chang noted that the state Department of the Attorney General had reviewed the Army Corps ROE form and found it to be legally acceptable. But, she added, it would be up to the Land Board to approve it.<\/p>\n\n\n\n

Land Board member Aimee Barnes asked, \u201cIs this similar to if I were to say, like, I have to pay my taxes, and I don\u2019t want to use the tax forms so I\u2019m going to make up my own tax form. And then if the IRS doesn\u2019t allow me to submit my own tax form, then I\u2019m not going to pay my taxes? Because that\u2019s kind of what it sounds like to me. I mean, it doesn\u2019t sound like we have a whole lot of choice based on what the chair has said about the AG\u2019s opinion, but it sounds like sort of a ridiculous situation to be putting the board in.\u201d<\/p>\n\n\n\n

Tsuji replied that she was \u201crelatively correct.\u201d <\/p>\n\n\n\n

\u201cI guess they\u2019re saying, \u2018Well, we\u2019re ready to do it now and unless you sign my form, I\u2019m not going to do it until whenever we get to it.\u201d He added that the new ROE form is being used across the nation. \u201cIt\u2019s not like they\u2019re necessarily picking on Hawai\u02bbi,\u201d he said.<\/p>\n\n\n\n

\u201cOur argument was Hawai\u02bbi is such a different place, we\u2019ve had some exposure to the military, especially with the Red Hill incident, that we\u2019re not too crazy about using whatever it is they give us. And having them<\/em> tells us<\/em>, it\u2019s like the tenant telling the landlord, \u2018Here\u2019s my lease agreement. Take it or leave it,\u2019\u201d Ferreira added.<\/p>\n\n\n\n

Board chair Dawn Chang clarified, \u201cI think it’s a matter of timing. They are responsible for clearing up all unexploded ordnance. The issue is they\u2019d like to do it sooner in some areas.\u201d<\/p>\n\n\n\n

\u201cI reject this is an issue of timing. They are making it an issue of timing because they\u2019re making it one,\u201d Barnes said.<\/p>\n\n\n\n

Ferreira, who used to work at the Department of Defense, explained that after the Army Corps gets an allocation of funds to address FUDS or other parcels, it engages a contractor to clean them up. \u201cThey go into a commitment for it, and If anything delays it or cancels it, then they end up having to pay the contractor. And then what ends up happening is, if it doesn\u2019t happen within a certain period of time, they end up having to give that money back to the government and then they have to go into the next fiscal year and request it again.\u201d <\/p>\n\n\n\n

\u201cTo some extent, we are at the mercy of Army Corps of Engineers. It\u2019s their schedule when they\u2019re ready to clean up. We don\u2019t dictate their clean up,\u201d Chang said.<\/p>\n\n\n\n

Hawai\u02bbi island board member Riley Smith recalled that years ago, when he worked for Parker Ranch, whose lands were included in the Waikoloa Maneuver Area, he was the point person who worked with the Army Corps on clearing unexplored ordnance from the ranch\u2019s lands. <\/p>\n\n\n\n

\u201cTwo Parker Ranch employees died because unexploded ordnance went off,\u201d he said, adding that unexploded ordnance becomes more unstable as it gets older.<\/p>\n\n\n\n

\u201cThis is really critical. If this is not approved, the Army Corps gets their annual funding, if they don\u2019t have permission to go in certain areas, they\u2019re going to use that money and go somewhere else, and really, they don\u2019t care. They\u2019re just doing their job,\u201d he said.<\/p>\n\n\n\n

He also noted that leaving the lands contaminated \u201creally impacts the native Hawaiian community,\u201d because some of those sites are on Hawaiian Home Lands in Waimea, where 80 house lots were prepared 13 years ago. <\/p>\n\n\n\n

“If the \u2026 Corps of Engineers doesn\u2019t go in there and give a clearance, the Department of Health doesn\u2019t give their clearance. What that means is that the [Department of Hawaiian Home Lands] cannot underwrite loans on their property. \u2026 There are 80 families not able to move on those lots because DOH has not approved everything that needs to happen so these individuals can get a loan and build a house. \u2026<\/p>\n\n\n\n

\u201cI think we can disagree about whether we\u2019re being blackmailed or forced to sign this form, but the consequences are if we don\u2019t sign this form, the money gets spent elsewhere, and you\u2019re delaying housing opportunities for our residents,\u201d he said.<\/p>\n\n\n\n

Chang said that as a matter of policy, she didn\u2019t like the Army Corps\u2019 proposition and initially took the position that her department was not going to agree to it.<\/p>\n\n\n\n

\u201cBut it did come back, we don\u2019t have a choice. So fortunately, there was an agreement to limit this just to the FUDS sites,\u201d she said.<\/p>\n\n\n\n

Board member Kaiwi Yoon argued that the board did have a choice.<\/p>\n\n\n\n

\u201cI love and respect Riley Smith and I understand that, but what happens if they walk away? Are they really gonna walk away when they got unexploded ordnance? And if they do, what does that say about the Army and their land management practices going forward as we contemplate Army leases going forward? This is a black mark on the Army as far as I\u2019m concerned,\u201d he said, referring to the fact that a number of the Army\u2019s leases for state lands used as training areas are expiring in a few years.<\/p>\n\n\n\n

Board member Vernon Char, however, shared Smith\u2019s view. \u201cWe oughta do whatever needs to be done, as quickly as possible, and not be part of the bureaucracy,\u201d he said.<\/p>\n\n\n\n

\u201cMy greater concern, though, is that we get a report of what is being done and what the results are. I\u2019m appalled to see that some of these areas go back 70 years ago, like Maunawili or Kahuku (on O\u02bbahu), where there are residents,\u201d he added.<\/p>\n\n\n\n

After discussing legal matters in executive session, the board approved the Land Division\u2019s recommendation in a 4-3 vote. Board members Barnes, Yoon, and Kaua\u02bbi board member Karen Ono voted in opposition.<\/p>\n\n\n\n

\n\n\n\n

Board Boosts Contract Terms<\/strong> For Kaua\u02bbi Mosquito Control<\/strong><\/p>\n\n\n\n

On May 10, the Land Board unanimously voted to double the contract amount and term \u2014 from $6 million to $12 million, and from one year to two years \u2014 for mosquito control on Kaua\u02bbi aimed at protecting native forest birds there from being wiped out by mosquito-borne avian malaria.<\/p>\n\n\n\n

The Department of Land and Natural Resources\u2019 Division of Forestry and Wildlife plans to issue a request for proposals to implement the work, which will involve using what\u2019s known as the incompatible insect technique (IIT). IIT is already being used in East Maui, where lab-reared male mosquitoes containing a different strain of the Wolbachia<\/em> bacteria than that carried by wild females are being released to suppress breeding and, ultimately, the overall mosquito population.<\/p>\n\n\n\n

\u201cWe are anticipating getting some federal funding to increase that amount of money available for this project and that would also increase the time that we would need for the project. We\u2019re trying to be proactive so that we can respond quickly if we get this new funding opportunity,\u201d DOFAW\u2019s Marigold Zoll explained to the board.<\/p>\n\n\n\n

While the money is intended to be used for the Kaua\u02bbi project, a small portion might be used to procure mosquitoes for the Maui project, DOFAW forest bird coordinator Lindsey Nietmann explained.<\/p>\n\n\n\n

Kaua\u02bbi board member Karen Ono asked whether the division had any statistics from the Maui releases that would prove to the board that the additional funds were needed.<\/p>\n\n\n\n

Nietmann replied that it did not.<\/p>\n\n\n\n

\u201cThe crews are out there collecting data as we speak. We\u2019ve been releasing mosquitoes on Maui for the past six months and monitoring results,\u201d she said, adding that they expected the data collected to be analyzed by the end of the year.<\/p>\n\n\n\n

\u201c\u201cAs you guys know these birds are very critically endangered and any gap in contracting would mean a temporary lapse in the project. \u2026 If we had the $12 million in hand now, the issue is this is an annual grant program. We\u2019ve gotten the funding for one year. We have an application in for next year. We aren\u2019t sure if the application we have pending is going to be funded,\u201d she explained.<\/p>\n\n\n\n

Zoll noted that the additional $6 million would give the division the flexibility, if new funding becomes available, to increase the project.<\/p>\n\n\n\n

Board members Kaiwi Yoon and Ono expressed some concern about what might happen if funding for the project dries up.<\/p>\n\n\n\n

Nietmann replied, \u201cWe\u2019re in collaboration with the Fish and Wildlife Service, actively searching for funding. I think it\u2019s going to be really hard when BIL and IRA [Bipartisan Infrastructure Law and Inflation Reduction Act] phase out, which is coming  up very soon. So we\u2019re going to be doing some targeted legislative outreach. We\u2019d love to have your support on all of that. So [we\u2019re] planning some site visits for state legislators and trying to get a line item in the state budget. I think it\u2019s going to be challenging until we have data showing that it works, so that\u2019s a really key piece that we\u2019re actively working toward. Because who wants to fund this if, you know, it\u2019s so expensive?\u201d<\/p>\n\n\n\n

\u201cTrust me, we get all the calls. Everybody\u2019s nervous because there\u2019s no data,\u201d Yoon said.<\/p>\n\n\n\n

A few members of the public testified in opposition, including Tina Lia, who, with her non-profit Hawai\u02bbi Unites, is seeking a court order to force the production of an environmental impact statement for the East Maui project.<\/p>\n\n\n\n

Travis Lau of Maui said he thought it was \u201cabsurd for anyone to believe the motivation for the [IIT] project is to protect birds from malaria.\u201d He added that Hawai\u02bbi Unites has collected reports of unusual mosquito bites during the Maui releases and said the insects were \u201cshowing up during drought times and biting in an unprecedented manner.\u201d <\/p>\n\n\n\n

“Adding the extra $6 million and pushing it to $12 million and releasing these mosquitoes on Kaua\u02bbi, is reckless and it\u2019s irresponsible. I don\u2019t believe you have any data to support you hypotheses of wha\u2019t going on,\u201d he said.<\/p>\n\n\n\n

\u201cIt appears to be, as the last testifier claimed, \u2026 it appears to be some hidden agenda that\u2019s going on and I don\u2019t think that\u2019s paranoia speaking. You all understand this is an experiment of biotechnology. \u2026 So the rest of us are going to become more focused at looking at your partners and who the business that you\u2019re working with against us, against the residents of Maui,\u201d he said.<\/p>\n\n\n\n

Prompted by questions from board member Yoon, Zoll assured the board, \u201cWe have quite a lot of data showing the precipitous decline of our native forest birds because of diseases that were introduced to Hawai\u02bbi. … Our only agenda is to preserve and protect our native species and to try these innovative ways in a last ditch effort to prevent their extinction.\u201d<\/p>\n\n\n\n

Even so, board member Ono was skeptical. <\/p>\n\n\n\n

\u201cI do really want preserve the birds as well, but I\u2019m just wondering how much of that is also noise from helicopters within the area that\u2019s putting these birds to extinction. Because I live in a wetland area and there really isn\u2019t much mosquitoes now, so I don\u2019t know where they\u2019re going. That\u2019s number one. Are they really going up to the upper elevations or is it also noise pollution that is making these birds just move out of the area?\u201d she asked.<\/p>\n\n\n\n

Nietmann replied, \u201cAny amount mosquitoes in these areas that were previously mosquito-free can be absolutely detrimental. A single bite from an infected mosquito can kill a honeycreeper. So just the fact that there suddenly are ANY mosquitoes up in the Alakai is very problematic. In terms of helicopter noise, we don\u2019t have any data to show that the birds are substantially affected by helicopter noises. Helicopter flights for conservation purposes or tour purposes in these areas are transitory. We have documentation of \u02bbakikiki and \u02bbakeke\u02bbe breeding on a territory year after year after year. There isn\u2019t evidence they\u2019re moving around to avoid helicopters. But there is evidence that they\u2019re disappearing. We started intense monitoring in 2015, and you can just look at photos of the territory maps each year and see territories being vacated and we don\u2019t have any evidence that would be related to helicopter.\u201d<\/p>\n\n\n\n

\"\"<\/a>
\u02bbAkikiki. Credit:Robby Kohley\n<\/figcaption><\/figure>\n\n\n\n

Still, Ono pressed, \u201cBecause I know there is a lot of helicopter tours within the Koke\u02bbe area. You go up to the elevation and you\u2019re trying to listen for birds and there is no bird. The only bird you hear is a helicopter. I think that\u2019s something that should also be in your research, in the data that you provide to us.\u201d<\/p>\n\n\n\n

Board chair Dawn Chang told Ono that she recognized that noise pollution is an issue, but said that right now, there is a \u201cdirect correlation between climate change, the warming temperatures, and avian malaria being the primary cause of the extinction of these resources. \u201c<\/p>\n\n\n\n

Ono ultimately made the motion to approve DOFAW\u2019s request to amend the contract amount and term that was initially approved by the Land Board in February. It was unanimously approved.<\/p>\n\n\n\n

\u2014Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Dispute Over Permit Terms Nearly Derails Ordnance Sweeps on Oʻahu, Hawaiʻi Island “It is kind of the tail wagging the dog,” land agent Michael Ferreira told the state Board of Land and Natural Resource at its May 24 meeting, referring … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":15793,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,11,26,25,525,338],"tags":[3],"class_list":["post-16012","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-board-talk","category-climate-change","category-endangered-species","category-invasives","category-june-2024","category-land-use","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16012","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=16012"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16012\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/15793"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16012"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16012"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16012"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}