![\"Kalo`i](\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2015\/04\/kaloi-gulch-map.jpg\")
<\/a>NHLC attorney David Kimo Frankel argued that data revealed in a 2008 contested case hearing on an earlier CDUP showed that contaminant levels in stormwater samples collected from the marine waters off Kalo`i Gulch are far higher than originally thought. (In 2008, the Land Board held a contested case hearing on a CDUP for the same drainage project, which Haseko had proposed for its Ocean Pointe residential\/marina development. The EIS for the drainage project was done in 2005. The board ultimately denied the permit, finding that the project lacked justification. Haseko later brought on the current parties as co-applicants to the CDUP granted in 2012.)<\/p>\n
\u201cThis data alone raises substantial questions,\u201dFrankel said.<\/p>\n
He pointed out that it wasn\u2019t until 2013, as part of the contested case for the new CDUP, that Haseko calculated the volume of runoff to be funneled through Oneula Beach. He also noted that the contested case uncovered previously unreleased data on pollutant concentrations in waters within 100 meters of the beach. The FEIS had only described pollutant concentrations in waters 300 meters offshore.<\/p>\n
The 100-meter concentrations are an order of magnitude higher than those that were included in the FEIS, Frankel said.<\/p>\n
Finally, Frankel noted that an endangered Hawaiian monk seal was seen during a 2008 site visit, yet the 2005 EIS claimed that monk seals had not been observed in the area.<\/p>\n Given all this, a supplemental EIS would provide critical information to the state Department of Health, the Department of Land and Natural Resources\u2019Division of Aquatic Resources, as well as the Land Board, Frankel argued.<\/p>\n Under the state\u2019s administrative rules, a supplemental EIS is warranted when \u201cthe intensity of environmental impacts will be increased, when the mitigating measures originally planned are not to be implemented, or where new circumstances or evidence have brought to light different or likely increased environmental impacts not previously dealt with.\u201d<\/p>\n A Rebuttal<\/i><\/b><\/p>\n Attorney Yvonne Izu, representing the CDUP applicants, joked that Frankel had planted the monk seal spotted in 2008. That seal, she contended, was the only new evidence to surface after the 2005 EIS that had not been previously discussed or considered during the EIS or contested case hearing processes.<\/p>\n First, she noted that Chang Wo had commented on the EIS, but had not challenged it.<\/p>\n That stormwater constituents exceed acceptable levels is not only something everyone knew, it is insignificant given that pollutants quickly dissipate with the area\u2019s significant wave action, she added.<\/p>\n She also stated that the \u201cnew\u201ddata on the volume of storm runoff was based on a discharge rate that was included in the 2005 EIS.<\/p>\n \u201cSo, is this new information? No, it\u2019s not. It was there,\u201dshe said.<\/p>\n The same went for the 100-meter pollutant concentrations, Izu argued, stating that that data came out of modeling done for the 2005 EIS. Haseko\u2019s consultant at the time had modeled pollutant concentrations all along the nearshore area but had only included the 300-meter grid in his narrative report included in the EIS.<\/p>\n Nobody asked to see the data for the 100-meter grid, she said.<\/p>\n \u201cThe only thing I admit is new information is the monk seal,\u201dshe said. But this is not like the recent Turtle Bay Resort case where an SEIS was required, in part, because monk seals were found in the area and the decades-old EIS for the resort\u2019s development had not even mentioned monk seals, she added.<\/p>\n In that case, more than 50 monk seals were later documented using the beach and it had become a known birthing area. \u201cHere, we saw one<\/b> monk seal. \u2026 The question becomes: is the sighting of one monk seal sufficient to require a supplemental EIS? No, it is not,\u201d she said.<\/p>\n She argued that the Land Board knew about the monk seal and the pollutant levels in the 2013 contested case hearing on the CDUP and decided that they weren\u2019t significant. The Land Board ultimately granted the CDUP, again, on June 13, 2014.<\/p>\n \u2018Procedural Bootstrapping\u2019<\/i><\/b><\/p>\n The issue of seizing on information presented during the course of a contested case as new evidence warranting an SEIS seemed to worry both Deputy Attorney General William Wynhoff and Land Board member Chris Yuen.<\/p>\n After hearing Frankel\u2019s arguments, Wynhoff said that new evidence is always going to be presented in the course of a contested case hearing.<\/p>\n \u201cDoes \u2018new evidence\u2019mean anytime something new comes up?\u201dhe asked.<\/p>\n Frankel said he was willing to concede that not all new evidence is important enough to warrant an SEIS. But the evidence in this case was \u201cshocking,\u201dhe said, addingthat the presence of the monk seal could be either new evidence or a change in circumstances.<\/p>\n Still, Yuen expressed the same concern as Wynohff. In the 2008 contested case hearing, Haseko consultant Steve Dollar presented the results of his water sampling, which Frankel now says should be considered new evidence that would require an SEIS. Yuen asked whether it would matter if the opponents, rather than the permit applicants, had provided the new information. And if it didn\u2019t matter, would that lead to \u201cprocedural bootstrapping.\u201d<\/p>\n \u201cIf I take your argument, opponents [in a contested case hearing] could produce information that could require an SEIS,\u201dYuen told Frankel.<\/p>\n \u201cThis discourages an applicant from bringing information that they think helps their case. I\u2019m concerned about this continuous looping,\u201dYuen said.<\/p>\n Frankel tried to allay Yuen\u2019s concerns, arguing that an SEIS would not be required if the new information didn\u2019t significantly change things.<\/p>\n \u201cI don\u2019t think your decision \u2026will open up a Pandora\u2019s box, a parade of horribles, whatever you want to call it,\u201dFrankel said.<\/p>\n Should the Land Board decide an SEIS was required, Frankel argued, the CDUP would be void.<\/p>\n \u2014 Teresa Dawson<\/i><\/b><\/p>\n (For more on this, see our May and October 2012 and October 2014 Board Talk columns.)<\/p>\n","protected":false},"excerpt":{"rendered":" Is the sighting of one monk seal three years after the acceptance of the Kalo`i Gulch Drainage Improvements’ final environmental impact statement (FEIS) enough “new evidence” to require a supplemental one? How about a monk seal sighting plus the release … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":7907,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[351],"tags":[3],"class_list":["post-7906","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-eh-xtra","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/7906","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=7906"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/7906\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/7907"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7906"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7906"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7906"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}<\/a>