Noted Hawaiian cultural practitioner Uncle Henry Chang Wo, Jr., has taken his fight to protect the famed limu beds of `Ewa from the effects of increased development to 1st Circuit Court.
On June 13, the Native Hawaiian Legal Corporation filed a notice of appeal on his behalf challenging the Board of Land and Natural Resources’ issuance the very same day of a Conservation District Use Permit (CDUP) to Haseko (`Ewa) Inc., the University of Hawai`i, the Department of Hawaiian Home Lands, and the City and County of Honolulu’s Department of Planning and Permitting that would allow them to alter a sand berm at One`ula Beach Park so that more upland runoff could reach the sea.
For years, Haseko alone had advocated for a drainage project as part of its Ocean Pointe/Hoakalei marina development project. The company originally proposed directing flows through a channel over the Honouliuli sewer outfall into its marina, but later nixed the idea after studies showed it would be difficult to maintain and to control adverse impacts. Haseko later dropped the marina idea altogether and, together with the various city and state agencies, proposed directing flows through One`ula Beach Park.
The permittees argue that their Kalo`i Gulch Drainageway project, which calls for lowering the 500-foot-wide berm a few feet, would meet 100-year storm flow requirements for the 7,500-acre watershed and allow them to develop lands currently occupied by or reserved for storm water retention/detention basins.
(Except for the `Ewa Villages development, the city requires all property owners in the watershed to retain surface flows within their property boundaries until an ocean outlet is constructed, according to state records.)
The Land Board first granted the CDUP back in March 2012, despite arguments from Wo and Michael Kumukauoha Lee, also a cultural practitioner, that funneling more runoff onto the limu beds would harm their ability to engage in their traditional and customary Hawaiian practices. The Land Board later granted them both a contested case hearing, although Lee later withdrew.
The case, conducted in 2013 by hearing officer Lawrence Miike, explored the potential effects various levels of runoff would have on the marine environment fronting Kalo`i Gulch.
In its June Decision & Order, the Land Board seemed to heavily favor testimony presented by the expert witnesses for the permittees and to discount testimony presented by Wo’s experts. The board concluded that the “infrequent storm water discharge that will occur from the proposed project is not likely to adversely affect limu and other marine life in the area.”
The D&O also notes that without the drainageway project, “133 acres of Gentry’s `Ewa-Makai-West development cannot be completed. This area includes approximately 700 homes and a middle school.” It adds that if the project is allowed to proceed, the DHHL could potentially build 72 single-family residences or 180 multi-family units on the 12 or so acres it will no longer need for surface water retention. What’s more, it states, the city’s `Ewa Development Plan targets Kalo`i Gulch for extensive development.
In Wo’s opening brief appealing the CDUP, NHLC attorneys David Kimo Frankel and Ashley Obrey argue that the Land Board should not have granted the CDUP because new evidence required the preparation of a supplemental environmental impact statement (SEIS) for the project, that the board improperly failed to accept some of Wo’s documents into evidence, and that the permittees failed to provide any evidence that “eating the limu exposed to the polluted storm water would be safe to eat.”
The new evidence that should necessitate an SEIS includes testimony indicating that endangered Hawaiian monk seals use the area, that pollution sources have increased, and that pollutant levels in the area “far exceed what is allowable in the ocean,” as well as new data on pollutant levels within 100 meters of the shoreline, according to the brief.
Frankel and Obrey also point out procedural flaws: the Land Board had improperly granted the 2012 CDUP before conducting the contested case hearing. And by doing so, they argued, the 2014 CDUP was a “legal nullity because the BLNR’s rules do not allow it to grant the same permit twice.” (These two matters were resolved last month via a settlement agreement in which all parties agreed, among other things, that the 2012 CDUP is void.)
(For more on this, see our May and October 2012 Board Talk columns.)
Frankel Doubts New Process
For BLNR Contested Cases
There was once a time, not so long ago, when the Land Board would end testimony and stop discussion on an agenda item as soon as someone requested a contested case hearing. But over the years, that practice evolved into one in which the Land Board continues deliberate on an item and takes action, despite a request for a contested case hearing, turning the case into something more like an appeal than a fact-finding exercise.
This “new” practice has long irked the NHLC’s Frankel and others. In the Kalo`i Gulch contested case, Frankel argued that by granting the CDUP in 2012 before holding a contested case hearing, the Land Board “prejudged the issues in the case.”
However, Frankel’s recent success in getting the Hawai`i Supreme Court to void the CDUP granted in 2010 for the Advanced Technology Solar Telescope — despite requests for a contested case hearing from Kilakila `O Haleakala — seems to have affected the Land Board’s practices of late. Over the past few months, whenever someone requests a contested case hearing on an agenda item, the Land Board includes a condition in its approval noting that the decision is stayed pending the outcome of contested case proceedings.
But when asked whether this new practice is sufficient, Frankel replied, “No, no, no.”
Environment Hawai`i did not receive a response from the Department of the Attorney General by press time.
Volume 25, Number 4 October 2014
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