The state Commission on Water Resource Management has deferred action on several after-the-fact applications for work in three streams near Papa`ikou, South Hilo. The deferral gives the commission staff time to evaluate a petition for a contested-case hearing on the matter.
The applications were made by the Hawai`i Tropical Botanical Garden to legitimize two dams in the Conservation District (one on Alakahi Stream; the other on Onomea Stream), the placement of fill in the intermittent Kahali`i Stream, and grading work near the bed of Onomea Stream (a large chunk of earth along the stream bank was removed in an area where the garden intends to place a catchment tank underneath its planned new visitor center and headquarters).
More than a year ago (in [url=/members_archives/archives_more.php?id=1060_0_29_0_C]March 1995 Conservation District Column[/url]), Environment Hawai`i reported that the garden at first denied to the Water Commission staff that it used stream water to fill or flush either “Lily Lake” or “Flamingo Pond,” two artificial shallow pools on the garden grounds. In a letter to the commission dated October 5, 1994, Steven S.C. Lim, attorney for the garden at the time, told the commission that some water was taken from Onomea Stream, but only for watering plants and “operation of two restrooms.” However, two days later, Lim provided Hawai`i County Planning Director Virginia Goldstein with as-built diagrams of the two ponds, indicating that both received their water from Onomea Stream.
In the course of resolving those contradictory claims, the Water Commission staff determined that, indeed, the garden did use stream water from unapproved dams for unapproved purposes. That resulted ultimately in the filing of the after-the-fact permit applications by the garden and its founder, Daniel J. Lutkenhouse.
(Lutkenhouse’s filing of the applications was anything but timely. After a preliminary review of the various claims by commission staff, Lutkenhouse was asked in May 1995 to prepare the necessary after-the-fact applications for the dams. He did not submit them until November 1995 — and by that time, he had also done additional unpermitted work in Onomea and Kahali`i streams, thus necessitating two more after-the-fact applications to the Water Commission.)
Restoration?
On February 7, 1996, the Water Commission considered its staff report on the garden’s applications. According to that report, Lutkenhouse had estimated the restrooms, which rely exclusively on stream water, used some 200 gallons a day (although, with the garden claiming to have more than 50,000 visitors a year — about 140 a day — that figure might seem low). The garden’s irrigation system takes 1,000 gallons a week, the report said, while the two ponds together received 273,000 gallons a year. The total volume of stream water taken for garden activities amounted to 398,400 gallons a year, based on Lutkenhouse’s estimated use.
In the eyes of the state Division of Aquatic Resources (a branch of the Department of Land and Natural Resources), the existence of an obstruction in a free-flowing stream was as important as the reduction in the stream flow. “Obstructing or reducing the flow in the lower portion of the stream would be detrimental for recruitment [of native freshwater fauna], since native fauna are amphidromous” — that is, they spend part of their lives at sea. Summarizing DAR’s comments, the staff wrote: “DAR indicates that leaving the diversion in place would pose a greater threat to aquatic life than its removal. Therefore, DAR strongly recommends the removal of the diversion.”
The staff diverged from the Division of Aquatic Resources, however, and recommended that the Onomea dam be allowed to remain in place. For Alakahi Stream, however, the staff recommended that the commission require removal of the dam.
Back-hoeing and Filling
On the matter of the unauthorized fill and grading activity in Onomea and Kahali`i streams, the staff report indicated that Lutkenhouse denied altering the bed or banks of these streams. “The applicant indicated that only vegetation and trash were removed from the stream channel for land planning purposes.”
Again, the Division of Aquatic Resources commented that Onomea Stream “harbors a number of significant native freshwater fauna, and Kahali`i Stream contains suitable habitat for native freshwater fauna that allows recruitment from the ocean during times of flow.”
Moreover, the U.S. Army Corps of Engineers had already found Lutkenhouse to be in violation of its rules by the grading and filling activity. In a letter dated July 21, 1995, the Corps of Engineers issued a cease-and-desist notice to Lutkenhouse, informing him that the grading, which was done in preparation for construction of a new garden headquarters and parking lot, constituted a violation of the federal Clean Water Act. Following that, Lutkenhouse applied to the Corps for an after-the-fact permit; that application is still pending.
The Water Commission staff report notes that the filling and grading were done in violation of state regulations as well, and occurred “despite the fact that staff informed HTBG of the commission’s permit requirements in our letter dated May 24, 1995… The staff also recommends the commission deny this stream channel alteration permit and require HTBG to restore the Kahali`i and Onomea stream channels to their original condition.”
Altogether, the staff recommended fining the garden $3,000 ($1,000 each for the unauthorized diversion of Onomea, the alteration of the Onomea channel, and the filling of Kahali`i Stream), the removal of the dam on Alakahi, and restoration of Kahali`i and Onomea streams to the condition they were in before the grading occurred.
Denial
Representing Lutkenhouse and the garden at the February 7, 1996, commission meeting was Sandra Pechter Schutte, his attorney. Schutte acknowledged that the garden should have provided “additional information” in its applications. However, she went on to say, much of that information was apparently considered so trivial by Lutkenhouse that “he won’t even include that in the answer, because he thinks it’s irrelevant.” This is how Schutte explained Lutkenhouse’s original and misleading representation to the Water Commission that no water was taken from the streams for Lily Lake or Flamingo Pond: “With 200 inches [of rain] a year, those ponds receive water, primarily rainwater. He does have a pipe in the pond to flush out the ponds. But if asked what is the source of the water, the source of the water is rainwater — in his mind. He didn’t think it [the stream water source] was significant.”
Concerning the fill of Kahali`i Stream and the grading along the banks of Onomea Stream, Schutte said that the land had merely been cleared as part of site preparation for the new garden center. “In their opinion, they did not interfere with any stream banks,” Schutte said. “One of the things they did do, though, is they scraped the banks of Onomea Stream because there was miconia growing on the banks of Onomea Stream.” Miconia (Miconia calvescens) can grow to heights of 40 or 50 feet, and its large leaves — up to three feet long — shade out everything else in the forest understory. When it becomes established, as it has in Tahiti, it can devastate native forests.
Schutte’s statement that the grading work was done to remove miconia is difficult to believe, in light of the fact that miconia continues to thrive at the very edge of the area affected by grading. In fact, young miconia seedlings are already growing on the freshly turned earth. Schutte also informed the Water Commission that the garden has a contract for miconia removal with the state Department of Agriculture. (In fact, according to a Department of Agriculture specialist, the garden had only a cooperative agreement with the DOA that expired some years ago; under the agreement, the DOA supplied Lutkenhouse with a five-gallon container of the herbicide Rodeo, and Lutkenhouse agreed to use it to control miconia on garden lands. Today, Onomea remains the site of one of the worst miconia infestations in the state.)
In any event, Schutte claimed that Kahali`i Stream had already been filled back in 1949, when a storm caused the stream banks to cave in and the flow was diverted naturally to Onomea Stream. She produced a statement to this effect from Donn Carlsmith, from whom Lutkenhouse purchased the visitor center parcel.
Counterclaims
Providing contrary testimony was Ed Johnston, a former employee of the garden who has in recent years been outspoken in his efforts to force the garden to comply with state environmental regulations. As a garden employee, Johnston said, he regularly saw water in Kahali`i Stream: “that thing flowed water about eight months out of the year. We had a bridge over it. It’s on the garden maps, with little blue water… One Native Hawaiian fisherman told me that he and his brother gathered `opae [shrimp] in this stream before it was filled in. Kathleen Dadey of the U.S. Army Corps of Engineers reported that a significant amount of material has been placed in the Kahali`i Stream bed, and that Kahali`i has a high water mark. She observed some aquatic life floundering around in the moist portions of the stream.”
Johnston also informed the commission that Lutkenhouse had enlarged yet another dam on yet another stream — Kawainui. That dam, which lies mauka of the Hawai`i Belt Road, dated back to plantation days, but has recently maintained and its size increased by the garden. “HTBG did this,” Johnston said, “to increase flow in Onomea Stream, in part, so that its waterfall within the garden will have a strong flow, creating a more memorable experience for tourists.”
Friendly Fire
Questions asked by the commission indicated it was more sympathetic to Lutkenhouse and the garden than it was to the position taken by staff or Johnston. Commissioner David “Buddy” Nobriga made a motion to approve all the applications — “allow everything to stay in place” — while warning the garden that if it ever came before the commission again for having violated its rules, “all of these fines … would be imposed upon you.” In addition, Nobriga wanted the garden to hire an expert to look into what was occurring to the human waste from 50,000 visitors a year using restrooms so near the water’s edge. Commissioner Herbert “Monty” Richards seconded the motion.
But when Johnston requested a contested case on behalf of the community group, Share Onomea Access, the commission was prevented from voting. The follow-up contested case petition was filed by February 17. A decision on the group’s standing must now be made before the commission takes any action on the garden’s applications.
The Damselfly
One of the points raised in the contested case petition is the potential impact of the excavation along Onomea Stream upon the orange-black damselfly (Megalagrion xanthomelas), a candidate for the federal endangered species list. On June 8, 1995 — less than a month before the excavation occurred — biologists from the U.S. Fish and Wildlife Service and Bishop Museum discovered colonies of this rare animal along Onomea and Alakahi streams.
This point was not raised by the staff report, although the information had been made available to the staff. A letter from the Fish and Wildlife Service in January to the Water Commission’s deputy director, Rae Loui, provided the agency’s comments on the garden’s applications. Among other things, the letter, signed by Brooks Harper, FWS field supervisor for ecological services, is quite critical of the garden’s documentation in support of their applications. The garden “inadequately describes the fauna and habitats that exist at the proposed site,” Harper states. “For example, a site visit conducted by a Service biologist on November 8, 1995, determined that there is flow in Kahali`i Stream mauka of the scenic highway, and the presence of aquatic organisms (fish and damselflies) indicates that this flow is permanent.”
In addition, Harper stated that the removal of debris and vegetation along Onomea and Kahali`i streams “very likely affected both the aquatic habitat (emergent vegetation) of the immature stages and the stream-side foraging habitat of the adult” damselflies. “More importantly,” Harper continued, “the long-term and cumulative effects of this project on the damselfly could be severe,” including the possible introduction of alien predatory fish to the streams.
Volume 6, Number 10 April 1996