Water Commission Questions Remedies For Illegal Construction on Maui Stream

posted in: March 2019 | 0

Last May, Commission on Water Resource Management staff proposed a rather meager fine — $1,000 — for what appeared to be massive unauthorized alterations to Kuiaha Stream along a property in Haiku, Maui. It also proposed assessing $500 in administrative fees.

Agents of the landowner, the Bock Family Revocable Trust, had allegedly graded, grubbed, filled, and channelized some 800 feet of the stream and installed two culverts, all without permits from any state or county agency. The principal trustee is Rainer Werner Bock, widely known for his extensive collection of Oceanic art and Hawaiian antiquities.

The work appears to have begun in January 2013, but it wasn’t until August 2016 that the commission became aware of what had occurred. Downstream neighbor Audrey McCauly had complained that the work done to increase the developable portion of the trust property resulted in mud and debris flowing onto hers.

It was several months before commission staff asked for a response from the trust. After receiving a notice of alleged violation on August 23, 2017, the trust applied for an after-the-fact stream channel alteration permit from the commission shortly thereafter.

In a May 2018 report to the commission, staff stated that the work done on trust land had adversely affected the stream’s ecology and made it impossible for aquatic species to migrate upstream. Staff recommended that the trust prepare a remediation plan to stabilize the banks, recreate riffles and pools for stream organisms, and recreate flood storage capacity, among other things. More than one of the trust’s neighbors testified tothe staff that the property used to serve as anatural holding area for flood waters.

While state law allows for a maximum fine of $5,000 a day for a violation, the law at the time the violations occurred allowed for a maximum fine of $1,000. And commission staff chose to treat the work that had been done as a single violation that occurred on a single day.

When presented with staff’s recommendations, commissioners immediately questioned why the fine was so small.

“It seems like the channelization is a big violation,” said commission chair Suzanne Case. Commissioner Mike Buck added that the work obviously took more than one day to complete. (McCauly later testified that the work spanned six months.)

Staffer Rebecca Alakai told the commission, “This is the way the applicant wrote the permit application. They put it all in as one. … We don’t know when the daily fines would kick in.” Fellow staffer Dean Uyeno added that the fine was set based on advice from a deputy attorney general.

Commissioner Neil Hannahs expressed concern, as well. “If the purpose of a fine is meant to be a deterrent, at this level, it doesn’t deter anything. It’s just the cost of doing business,” he said.

Alakai agreed, but said that the remediation plan will be expensive to implement. She had recommended that the trust obtain an approved remediation plan within six months and complete implementation within two years. “If he doesn’t, then the daily fine will kick in,” she said.

Commissioners expressed concern that if it approved a stream channel alteration permit and the work ends up damaging the properties of people downstream, the commission could be liable. What’s more, the county is requiring the trust to obtain a flood development permit, which may need to be approved first.

The commission chose to only find that a violation had occurred and require a remediation plan be submitted within six months, but deferred voting on the proposed fine and permit application.

The trust filed an appeal with the Hawai‘i Supreme Court because “they did not like that the commission denied the permit and was set to impose a fine,” according to Alakai. The court stayed action on the case until March, to give the commission time to revisit the issue once a remediation plan was drafted.

Deferred, Again

On February 19, staff brought the matter back to the commission. It again recommended the same $1,500 fine, and also sought approval of an after-the-fact stream channel alteration permit that included remediation as a condition.

Under the remediation plan submitted by the trust, it would widen the stream, reduce side slopes, recreate ripples and pools, and raise the stream beds at the culverts, among other things.

Commissioner Buck repeated his dissatisfaction with the low fine. “This was a pretty blatant violation,” he said. He also worried about the trust completing the remediation in a timely manner and asked whether the commission could require a bond for the work.

Commissioner Hannahs added his concern that the plan may not adequately address flooding, especially since the county had not approved a flood development permit.

While staff had also recommended that the trust apply for a flood development permit and submit a copy to the commission once it’s approved, Hannahs suggested that if the commission approved the SCAP, the trust might get the impression that its remediation plan is adequate.

Dealing with flooding should be the firs tstep, Buck said.

Alakai replied that the Water Commission’s kuleana in this case is merely to ensure that mauka-to-makai flow is re-established, and the remediation plan as proposed would achieve that.

“And you’re satisfied with that,” Hannahs asked.

Alakai said that she was.

Attorney Paul Mancini, representing the trust and trustee Rainer Werner Bock, tried to assure the commission that it won’t and can’t proceed with any remediation until it has all of the necessary permits. “None of us want to do something that doesn’t work,” he said.

When asked by commissioner Kamana Beamer what Bock was thinking when he made all of the stream alterations, Mancini suggested that property owners in the area, in general, “tend to go to self help” to solve their problems and “try to use a bit of intuition.”

“Did Mr. Bock make a mistake? Yes, he did,” Mancini said, adding that he thinks violations for people trying to protect their homes are going to become more common, both along streams and along the coastline.

“You see trees, automobile parts blocked in the stream. … Sometimes your cleanup isn’t exactly what should have been done and you end up in a hole,” he said.

During public testimony, McCauly complained that the remediation plan lacked detail and was mainly conceptual. “Anything that the commission approves needs to be coordinated with the county,” she said.

In the meantime, she said she still struggles with what she says are new flood conditions resulting from Bock’s work.

“A couple times a week now, I can’t get in and out of my property,” she said, explaining that she sometimes has to put her boots on to wade to her house through the floodwaters and leaves her car on the other side.

Bock’s engineer Stacy Otomo countered that it was quite unfair to pin the flooding problems in the watershed on a single property.

“Not if you have 20 years experience,” McCauly interjected.

After an executive session, Buck made a motion to defer staff’s recommendations, but directed the commission’s director to write a letter to Bock stating the commission’s desire to have input from other agencies on the remediation plan.

Marvin Kaleo Manuel New CWRM Director

On February 19, the Water Commission unanimously approved Marvin Kaleo Manuel as its deputy director, a job held most recently by Jeffrey Pearson.

For the past decade, Manuel was a planner for the Department of Hawaiian Home Lands (DHHL), working with private landowners, as well as federal, state, and county officials to secure water sources for beneficiaries and develop water policy plans for the agency.

As Water Commission director, Manuel said he planned to continue to advocate for more staff and resources to handle the commission’s workload and to be proactive in protecting public trust uses of water. He also said he recognized that there needs to be a shift on in how water resources are treated, especially considering the potential impacts of climate change.

Wayne Tanaka of the Office of Hawaiian Affairs, University of Hawai‘i law professor Kapua Sproat, Hui O Na Wai Eha president Hokuao Pellegrino, and former Water Commission deputy Yvonne Izu all testified before the commission in support of Manuel’s appointment.

“He’s proven himself to be well-respected in the Hawaiian community and the community at-large,” Pellegrino said.

Izu, an attorney now who represents diverters of stream water, such as Alexander & Baldwin and the Kaua‘i Island Utility Cooperative, said that in her work over the years with Manuel in his capacity at DHHL, “we’ve gotten along really excellently. One thing I really appreciate about Kaleo, he’s always looking for solutions, always keeping the public trust in mind. Always coming from a traditional Hawaiian perspective, but always looking for solutions.”

Sproat, director for Ka Huli Ao Center for Excellence in Native Hawaiian Law, said she’s partnered closely with Manuel on a statewide water law and advocacy training program, which she said he initiated.

“Kaleo really brings the vision and streetcred to this commission. … He’s worked with communities on every single island. He’s really earned the reputation of being fair,” she said, adding that she’s witnessed him handle conflicts among DHHL beneficiaries “with poise, dignity and grace.” 

— Teresa Dawson

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