For Lack of an Exemption, Maunalua Project is Scaled Back, DAR Loses Administrator

posted in: June 2010 | 0

When Dr. Garrett Saikley threatened earlier this year to seek a court injunction to stop the celebrated “Great Huki” algae removal project at East Honolulu’s Maunalua Bay, his goal was to shield his tranquil Paiko Drive community from any negative impacts of the project’s proposed baseyard, at nearby Paiko Lagoon Wildlife Sanctuary. But in Saikley’s zeal to stop the trucks and droves of workers from invading and tearing up the road past his neighbors and to his oceanfront home, he happened upon a weak spot in the state Division of Aquatic Resources’ permit review process, which ultimately led to the March 19 ouster of its administrator, Dan Polhemus.

The exact reasons behind Polhemus’s departure from the state Department of Land and Natural Resources (he was fired initially, but was later allowed to resign) remain largely undisclosed. The friction between two individuals — in this case, Polhemus and DLNR director Laura Thielen — isn’t always documented. Thielen did suspend Polhemus late last year for his handling of East Maui water issues and Polhemus responded with two internal complaints against her. But documents associated with those events, possibly protected as confidential personnel information, were not released to Environment Hawai`i by press time. With regard to Polhemus’s handling of the Maunalua Bay project, DLNR correspondence obtained by Environment Hawai`i had been heavily redacted to exclude confidential attorney-client communication.

In any case, what becomes clear in the emails and letters among DLNR staffers, Saikley, The Nature Conservancy of Hawai`i and its contractor, Pono Pacific, is that the permitting of the project — calling for some 50 daily workers to remove 2,000 tons of invasive algae over the course of a year — was rushed. Whether or not TNC or Pono Pacific should have prepared an environmental assessment or impact statement for it somehow became Polhemus’s problem.

And it couldn’t have happened at a worse time: The DLNR is being sued for violating the Hawai`i Environmental Policy Act (Chapter 343, Hawai`i Revised Statutes), the DAR’s list exempting certain actions from environmental review is more than 30 years old and was developed for an agency that no longer exists, and the state Environmental Council’s decision last August to go on strike has prevented all state and county agencies, including DAR, from updating those exemption lists.

With regard to the Maunalua Bay project, DAR tried to claim that it qualified for an exemption, but the DLNR failed to back that position. In the end, TNC amended its project so it wouldn’t require a Special Activity Permit from DAR, and therefore, would not trigger Chapter 343. It also moved the project’s staging area to an area that would not affect the residents of Paiko Drive. Pono Pacific’s workers started pulling algae full-time on March 15.

Expedited Review

One might argue that the Special Activity Permit (SAP) initially issued by DAR for the Maunalua Bay project should have gone to the Board of Land and Natural Resources for approval. A few years ago, according to state documents, “a major change occurred where the chairperson instructed the division to begin to seek board approval of SAPs, instead of the previous practice of delegation of all SAPs to the chairperson for approval; the chairperson would still sign all SAPSs but SAPs must be board approved first.”

At its October 24, 2008, meeting, the Land Board authorized its chair, Thielen, to approve SAPs for “relatively minor, non-destructive” activities, including the collection of 10 or fewer specimens of aquatic life for classroom aquaria, the use of no more than five hand-held small-meshed nets or traps to take unregulated species, exemptions regarding scientific research vessels, certain perennial scientific collection permits, and the take of federally listed species for scientific or enhancement purposes.

SAPs for activities not addressed by the board’s action did not necessarily require board approval, but in its submittal to the board, DAR stated, “The department may still wish to bring certain permit applications before the board for review and decision in cases where the requests are complex and that may benefit from the entire board’s review.”

In this case, not only did the project fall outside those actions approved for delegation by the board, it also had the potential to impact live rock and coral, an issue the department and the Land Board has struggled to address over the past couple of years. Attempts by DAR to adopt a policy governing activities that impact coral and live rock have been repeatedly proposed to the board, then deferred or withdrawn pending further legal review. Even so, DAR chose to issue the Maunalua Bay permit administratively.

The permit application, couched as one involving scientific collecting, came to DAR on January 27. Submitted by John Leong of Pono Pacific Land Management, LLC, the application sought permission to remove alien algae from Maunalua Bay from about February 2010 to February 2011 (despite the fact that DAR permitting procedures require applications to be submitted 45 days before field activities are expected to commence).

“The alien algae, primarily Avrainvillea amadelpha (leather mudweed), have been invading the bay since the 1980s and has resulted in a severe loss of coral and marine life in the near shore waters. The removal of the alien algae will allow native algae to flourish once again and improve water circulation, which is intended to allow marine life and coral to thrive,” Leong wrote.

The project targeted three alien algae species: Avrainvillea amadelphaAcanthophora spicifera, and Gracilaria salicornia. All would be pulled from the bay by hand, bagged in potato sacks, and kayaked to shore. Pono Pacific planned to send the algae to a green waste disposal site, City and County disposal sites, farmer compost piles, and/or fertilizer producers, provided that no algae would return to the ocean or other aquatic areas.

In June 2009, the National Oceanic and Atmospheric Administration announced that TNC and the community group Malama Maunalua’s invasive algae removal project would receive $3.4 million in support from the American Recovery and Reinvestment Act. The project, which would target 22 acres of the most affected areas of the bay, was expected to create 73 new jobs, mostly full-time, for 14 months.

According to a January 27 email to DAR permit coordinator Alton Miyasaka from Pono Pacific project manager Luke Estes, the project was scheduled to start March 1.

Miyasaka immediately asked DAR invasive species specialists to comment on the application. In emailed responses, they raised a number of concerns. Regarding the application’s mention of saving coral, one wrote, “bunch of crap, but since they said it, what are their mitigative measures to minimize additional impact to coral…. Live rock will be a bycatch, so how do they deal with this issue?”

On February 9, based on their suggestions, Miyasaka asked Estes to describe the exact algae disposal locations and include a list of all staff to be covered under the permit. He also asked whether the state Department of Health had been consulted regarding turbidity and what the company’s mitigation measures were for possible damage to or take of live corals and live rock during algae removal.

On February 11, after the DAR group met to further discuss the application, Miyasaka explained to Estes that his agency was most concerned with the possible spread of alien algae and that it would be limiting the algae disposal sites to two that Estes had mentioned in a previous email, Hawaiian Earth Products and The Green Machine. He recommended that Pono Pacific submit a Hazard Analysis and Critical Control Points-like plan [HACCP is used in the management of food safety] to describe protocols for preventing the introduction of alien algae to other sites through equipment cleaning or other measures.

Miyasaka also asked what protocols would be used to remove algae from sensitive areas in the bay, such as sea grass beds, and he required a mitigation plan for handling coral or live rock takes.

“How will you minimize such takes, what will you do with the coral or rock pieces that are incidentally taken, how will you dispose of/return these takes? If you have some estimate of the amount of corals or live rocks that will be taken, we would need this to write into the permit,” he wrote. He added, “[T]here is a larger risk from potential negative impacts due to the scale of this project, and we are reviewing our requirements for alien algae projects in general due to the numbers of such projects coming before us.” (Volunteer cleanups of Maunalua Bay, organized by Malama Maunalua, have occurred at a much smaller scale over the years. Volunteers removed roughly 100 tons of mudweed between early 2007 and the end of 2009, the group’s website states.)

“Lastly, we note in your application that you mentioned that the project is intended to allow marine life and coral to thrive. We would be especially interested in seeing how the plan addresses minimizing disturbances to live corals,” Miyasaka wrote.

Estes provided an initial response on February 11. Regarding impacts to rocks and corals, he wrote that the crew would remove coral, rocks, or shells from the algae before bagging it.

“In addition, damage to coral or the reef from walking will be minimal as there are very little live coral areas within this reef system,” he continued. “The large majority of the bottom is rubble, sand or the alien algae. Also, walking paths throughout the area will be identified and cleared to direct the workers to specific lanes to reduce the likelihood of damaging live reef or coral areas.”

Estes submitted a more thorough response, including the requested plans, on February 22, and thanked Miyasaka for expediting the permit’s review.

Exempt or Not?

Pono Pacific’s response raised concerns with DAR alien species expert Tony Montgomery. Among other things, he questioned whether the project was exempt from Chapter 343, with or without a SAP.

“If there are vocal critics, we will be dragged into a 343 argument. How solid is the ground on an exemption? I’ll try to look over it more later. Maybe we should ask them how they are going to save the corals when they are ‘non-existent.’ Nah, just joking,” he wrote in a February 22 email to Miyasaka.

Miyasaka wrote back minutes later: “The project would not be exempt from 343 even with our permit. It’s up to the applicant to be sure they’re compliant with 343, not us, although some might argue….Our position has been that we intend to be 343 compliant. Right now, it’s unclear what those requirements are. In my mind, there’s a clear distinction between 343 requirements on us (DLNR/DAR) as the permit processor vs. the projects the applicants are proposing and the impacts they might have.”

Coincidentally, one of those “vocal critics” had written a letter to Pono Pacific’s Leong and to Thielen that very same day. Saikley, writing on behalf of fellow Paiko Drive residents Susan Childs, Beti Suetsugu, and Quintin Uy as well as himself, expressed their concern over the environmental effect the project might have on the bay itself and on the Paiko Lagoon Wildlife Sanctuary. (In 2006, the DLNR attempted to fine Saikley several thousand dollars for storing equipment, stockpiling dirt, and landscaping in the sanctuary.)

“The first question is whether there has been an environmental impact statement [EIS] prepared in advance of this project that will outline any adverse effects to the environment that may be caused by the removal of the invasive species, as well as the constant daily foot traffic of the 50 member team over a period of twelve months,” he wrote. “The potential for damage does not end there. The current plan calls for there to be a staging area within the boundaries of the sanctuary. Thus, the next question is whether the multiple van and truck trips through the sanctuary, in addition to the noise and presence of the 50 member team, will have a negative effect on the water fowl the sanctuary was created to protect. Further, the staging area is located on the already eroding road of the sanctuary. This raises the third question of whether there has been any investigation as to how to prevent, or at the very least, mitigate any further erosion of the road.”

Saikley’s second concern was the potential erosion and dust damage to the private property through which Pono Pacific has to cross to get to the sanctuary. He also worried about the noise, the smell of rotting algae, and “safety concerns that accompany bringing 50 strangers onto private property.”

He suggested moving the staging area to the Maunalua boat ramp or Kuliouou Beach Park and asked for a copy of the project’s EIS and all associated permits.

While he preferred to resolve matters face-to-face, Saikley wrote, “if the situation requires, we will not hesitate to take legal action.” He added that he wanted a response by noon on Friday, February 26.

Apparently unaware of Saikley’s letter, Miyasaka notified Estes on February 24 that the SAP was ready to be signed. “Please note that the permit does not exempt you from the need to be Chapter 343 compliant,” he wrote. On February 26, DLNR deputy director Ken Kawahara, signing for Thielen, approved the permit, which had an effective date of March 1. But at about 1 p.m. that day, Thielen asked Polhemus via email to take the lead on a short response to Saikley for her signature.

She then asked Polhemus, Sam Lemmo of the Office of Conservation and Coastal Lands, and Paul Conry of the Division of Forestry and Wildlife to let her know whether any permits were needed, if they had been finally approved, and if any EIS was needed.

Finally, she wrote, “I’m asking this information be sent to Dan to consolidate, and Dan, talk to the AG [rest of sentence redacted].”

A letter to Saikley went out that day, thanking him for his concerns and urging him to discuss them directly with TNC and Pono Pacific. Thielen added that the department would respond to his other questions once it had time to gather information.

Crunch Time

For some divisions, responding to the Chapter 343 question was easy. DOFAW had issued Pono Pacific an entry permit for Paiko Lagoon on February 2. According to a March 2 email from Conry to DLNR staff, DOFAW issued the permit on the condition that Pono Pacific not block access to Saikley’s property and that it remove invasive algae from Paiko Lagoon, “and remove weeds and invasives in the wildlife sanctuary area they are staging from, and replant with native species.” DOFAW’s exemption list contains exemptions for activities in sanctuaries that seem to cover the activities described in its permit to Pono Pacific.

For DAR, responding to Thielen’s request turned into a nightmare. Despite his earlier exchange with Montgomery regarding the EA/EIS issue, Miyasaka sought advice from deputy attorney general Colin Lau about the DLNR’s permits for the project. On March 2, Polhemus wrote Miyasaka, “The sooner we can get a synopsis back to the chair, the better. TNC is also a bit nervous here, and keeps calling me to check progress.”

On the evening of March 3, Saikley met with TNC and Pono Pacific representatives to resolve matters, to no avail. On March 6, Saikley sent an email to TNC director Suzanne Case and Pono Pacific’s Leong (copied to Thielen and state Rep. Lyla Berg, among others), basically restating his original concerns. Now aware that no environmental review had been done for the project, Saikley also recommended that TNC and Pono Pacific provide better proof that the project would not cause erosion, procure a bond and insurance for at least $30 million to cover any damages, and move the staging area to a “less vulnerable” location.

Case responded in a letter the same day, promising, among other things, to deposit TNC’s fair share of funds for any road remediation into an escrow account and to keep looking for alternative staging sites or other ways to minimize impacts to Paiko Drive and the sanctuary.

Monday morning, March 8, Thielen pressed Polhemus to prepare a response to Saikley by close of business Tuesday. Polhemus responded that his division had consulted with Colin Lau on the matter. The bulk of that email was redacted. By that afternoon, Saikley had turned up the heat. In an email to Case, Saikley proposed a resolution: Move the staging area to the public right of way between 216 and 218 Paiko Drive and the adjacent beach and grassy area makai of a vacant lot on Paiko Drive, or to some other public area.

“[T]hat would allay most of our concerns which we have addressed previously. The advantage to you is that you could begin your project immediately; you would not be responsible for damage and repair to the privately owned portion of Paiko Drive or to the sanctuary embankment and driveway; you would not need bonding and insurance, as we requested; and you would not need environmental studies, as we requested. The other advantage to you is that we will not proceed as planned to obtain a temporary court injunction to stop your project for an indefinite time until environmental studies are performed, which may place your project’s federal grant in jeopardy. We hope this resolution meets with your satisfaction and does not impact negatively on your plans,” he wrote.

At 5 p.m. March 8, Polhemus sent a draft response to Thielen. It said, simply, that, based on analyses by the attorney general’s office, DOFAW, DAR, and OCCL, “we do not believe that the environmental assessment requirements of Chapter 343, HRS, are triggered for the proposed activities in the sanctuary. In addition, we have determined that department permitting requirements will not prevent the implementation of the proposed activities as planned.”

At 8 p.m. that evening, Thielen pointed out to Polhemus that Saikley’s concerns weren’t limited to activities in the sanctuary, but also addressed the “removal of algae in the bay, which is state waters, submerged land and Conservation District.”

She noted that Conservation District rules don’t require a permit for removing invasive species of a certain size, and that DOFAW also seemed covered.

“I had asked DAR to compile the responses into one letter because DAR has the outstanding lawsuit relating to Chapter 343, and therefore you needed to ensure the wording of the response didn’t run awry of our defense in that suit,” she wrote, referring to a lawsuit filed last year in 1st Circuit Court by KAHEA: the Hawaiian-Environmental Alliance alleging the DLNR has been processing permits for activities in the Northwestern Hawaiian Islands in violation of Chapter 343.

Finally, Thielen instructed Polhemus to incorporate the OCCL’s and DOFAW’s responses into the letter and to “make sure it is not limited to the sanctuary.”

At about 9:30 p.m., DLNR land deputy director Russell Tsuji informed Polhemus that he wanted to “see exactly who approved what at AGs” before the letter went out. Tsuji also recommended that Polhemus sign the letter.

On March 9, efforts to exempt the project from environmental review seemed to have hit a snag. Shortly after Polhemus directed Miyasaka and Marine Fellow Wayne Tanaka to modify the draft letter to Saikley “per chair’s instructions,” Lau, the deputy AG, sent a long email to Polhemus. (The copy obtained by Environment Hawai`i was entirely redacted.) Thielen sent another (largely redacted) email to Lau regarding Polhemus’s consultation with Lau. And that afternoon, Tanaka informed Polhemus that “[t]he Chapter 343 issue is still a hurdle that I’m not sure we can resolve right now…. An EA with a FONSI [finding of no significant impact] would probably suffice, but I’m not sure if we have the time or funds. We may also have conflicts of interest that would require OEQC [state Office of Environmental Quality Control] consultation. I’m not sure what we have represented to Pono Pacific, but we could possibly ask them to assist us in conducting the EA. If a full EIS is required, it appears that Pono Pacific (as the applicant) would be required to prepare the draft and final statements for approval.”

By close of business Tuesday, Thielen’s deadline, it appears the department had failed to resolve the matter.

Polhemus tried that evening to explain to Thielen the reasoning behind his draft response letter to Saikley. Among other things, he wrote in an email, Miyasaka told him he thought that the DAR SAP did not trigger Chapter 343. About a year ago, DAR, concerned about Chapter 343 compliance regarding its NWHI permits, decided to draft a new list of exemptions, a process that has been hampered by the fact that the state Environmental Council, which approves all exemption lists, stopped meeting last summer to protest the Lingle administration’s lack of support. Without a new list, the division has had to rely on a January 1976 list approved for its predecessor agency, the Division of Fish and Game.

“DAR maintains that its exemption class 6.2 covers the invasive algae removal,” he wrote to Thielen, referring to the Division of Fish and Game list. Exemption class 6, item 2 covers administrative, clerical, and bookkeeping activities necessary to carry out the division’s functions.

“This provision is intended to cover those normal, everyday activities carried out by the agency. The division normally issues licenses and permits as part of its management responsibilities. The administrative function of processing licenses would fall under this exemption,” he wrote.

“Department of Health administrative rules also provide for more general exemptions under Section 11-200-8(a)(4), HAR, Minor alteration in the conditions of land, water, or vegetation; and section 11-200-8(a)(5), Basic data collection, research, experimental management, and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource. Under these two provisions, the removal of alien algae (vegetation) and the resource evaluation activities, which would include the evaluation of permits, would also fall under this broad exemption…. We do not believe that the removal of this noxious seaweed would result in a serious or major disturbance.

He wrote that his division had concluded that “the activities involved in this project do not require an EA.” However, he added, an updated exemption list would have provided “additional clarity”.

Thielen’s response is unknown, as Environment Hawai`i’s copy of her 7:11 p.m. email to Polhemus and deputy attorney general Donna Kalama is completely redacted. Thielen did not respond to our questions about Maunalua Bay, exemption lists, and coral/live rock issues by press time.


Thielen’s efforts to find out who told what to whom regarding the preparation of the letter to Saikley dominated the next day’s email communications. Except for one letter, Environment Hawai`i obtained no correspondence dated after March 10. According to Saikley, the DLNR never sent him a letter. Instead, Pono Pacific moved its staging area to a private property that has public access. “They were very nice about it,” he said.

Things at the DLNR weren’t as amicably resolved. On March 24, The Honolulu Advertiser and West Hawai`i Today reported that Thielen had fired Polhemus on March 19. (He quickly found a new job with the U.S. Fish and Wildlife Service.) Polhemus says Thielen’s stated reason for firing him was his handling of the Maunalua Bay project, in particular, his communications, or lack thereof, with Lau, who had some last-minute concerns about the project. Polhemus notes that the time he was given to prepare a second response to Saikley “was very tight.”

Insight into what happened after March 10, as well as the DLNR’s final position on Chapter 343 compliance, can be found in an April 14 letter from Thielen to Case. The letter, Thielen wrote, was a follow-up to consultations between the DLNR and TNC in March regarding permit requirements for the Maunalua Bay project, “specifically, on clarification of project activities and whether the proposed activities for removal of three types of marine algae from nearshore waters of Maunalua Bay required permits, and were in compliance with environmental review requirements under Chapter 343, HRS.”

According to the letter, based on discussions with the DLNR on permit requirements and compliance with Chapter 343, TNC revised its project and requested a revision in the permits issued.

“[I]t is my understanding that you intend to revise project activities to: 1) not include the removal of the regulated seaweed Gracilaria salicornia or any other regulated marine species, as a component of the project; and 2) restrict the removal of unregulated algae speciesAvrainvillea amadelpha and Acanthophora spicifera to unattached algae or algae anchored in mud, sediment, or consolidated substrates where there is no live rock or coral in the substrate. This revision would thus avoid the take or removal of live rock which is prohibited by 13-94-71 HAR, and take of the regulated marine seaweed. Consequently, these revised project activities would not require a permit from Division of Aquatic Resources. Accordingly, DAR is withdrawing the approved Special Activity Permit No. 2010-46 to Pono Pacific, because there will be no removal or take of regulated species, and the remaining planned activities do not require a permit from DAR.

“Also, the DOFAW permit for staging and removal activities at Paiko Lagoon needed to be revised to comply with new sanctuary administrative rules and document compliance with environmental review requirements,” she wrote.

Case says that the decision not to remove Gracilaria salicornia does not greatly impact the overall project. “That one is just in a small area and is a distinct population and we just held off on that,” she says.

When asked whether there was ever any discussion within TNC or with Pono Pacific about whether the project required a Chapter 343 review, Case said that there’s no need for an EA/EIS because the two species being taken are not regulated and are not in an area affecting any live corals. “We’re just taking weeds out of the area,” she says.

Meanwhile at the DLNR, according to DLNR and state Office of Environmental Quality Control staff, the department is still working on a policy regarding the take of live rock and coral, as well as revised exemption lists for several divisions.

Polhemus says that a revised list for DAR has been ready for Environmental Council approval for some time, but was not submitted before the council stopped meeting last August. He adds that he still does not believe the algae removal project would have required an environmental assessment, despite TNC’s later amendments to ensure that it doesn’t. He views their actions as simply cautionary.

“Discretion is the better part of valor,” he says.


— Teresa Dawson




Volume 20, Number 12 June 2010


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