New & Noteworthy: Kekaha Violations, Waikoloa Reversion

posted in: August 2019, New & Noteworthy | 0

Kekaha Violations: A federal judge has found that the state Agribusiness Development Corporation has been violating the Clean Water Act for years, as the century-old drainage system it owns discharges millions of gallons a day into the Pacific Ocean along the west coast of Kaua‘i. The discharged water includes pesticides, sediment, and heavy metals that run off the 7,000 acres of former sugar plantation land that the agency licenses to large farms, piggeries, and other agricultural operations. It also likely includes seepage from a nearby landfill and domestic cesspools.

The law firm Earthjustice sued the ADC in 2018, on behalf of Na Kia‘i Kai, the Surfrider Foundation, and Pesticide Action Network. Last month, Judge Derrick K. Watson determined that the agency has been violating federal law every day since it allowed its national pollutant discharge elimination system (NPDES) permit to expire in 2015.

The state claimed that no NPDES permit was required, arguing that the discharges fell under a 2008 exemption called the Water Transfer Rule (WTR). But Judge Watson agreed with the plaintiffs that the exemption doesn’t apply if the water contains pollutants, as the Kekaha drainage system water clearly does.

Watson was unmoved by what he called the “parade of horribles” put forward by the state should the court find in the plaintiffs’ favor. “ADC claims that ‘should the water transfer cease, the Mana Plain would be inundated with water, causing extensive adverse effects to the Pacific Missile Range Facility, Kekaha town residences and commercial businesses, and agricultural and other uses on the plain.’ … Of course, Plaintiffs do not ask the court to enjoin ADC’s discharge of water from the system; they ask only that the court require ADC to obtain an NPDES permit to do so.”

The ADC is now required to obtain and comply with a new NPDES permit.

The plaintiffs had also asked the judge to find that the ADC had violated the public trust in its discharges of polluted water to the ocean. Judge Watson did not uphold that claim.

Waikoloa Reversion: More than 11 years after the state Land Use Commission placed 731 acres near Waikoloa Village, on the Big Island, into the Rural land use district, the LUC officially reverted the land back to the Agricultural District, its prior status.

The LUC had given the landowner, Waikoloa Mauka, LLC, 10 years from the date it approved the redistricting petition – June 10, 2008 – to develop 398 lots, with associated roads, infrastructure, and utilities. With the deadline approaching last spring, and with no visible progress made toward the proposed subdivision, the LUC ordered the owner to show cause as to why the land should not be reverted to its earlier status.

After a series of hearings last fall, the LUC voted in November to approve the reversion and ordered its staff to prepare a draft findings of fact, conclusions of law, and decision and order – the formal legal document that gives effect to the LUC vote.

Drafting the order took months, but it finally came before the LUC at its meeting on July 10 in Kona. Since 2014, ownership of the land has been held by Waikoloa Highlands, Inc., but the ultimate ownership still remains vested in the same person, Vitaly Grigoryants, who owned it since the original redistricting petition was filed in 2006.

L-R Commissioner Dawn Chang, commissioner Edmund Aczon; deputy attorney general Randall Nishiyama; commission chair Jonathan Scheuer; Dan Orodenker, LUC executive director; commissioner Nancy Cabral. Present but out of the photo: commissioner Gary Okuda, commissioner Lee Ohigashi.

In July, the attorney for Waikoloa Highlands, Steve Lim, raised objections to the commission’s proposed reversion, with most – if not all – being objections he has raised as the LUC considered the question over the last year. Commissioners were unswayed. At the conclusion of the July 10 meeting, the vote was six to one in favor of the reversion. Only commissioner Lee Ohigashi, of Maui, voted against the reversion order, while two commissioners were not present.

An Amendment: In our June 2019 article on the Western Pacific Fishery Management Council’s June 2018 meetings on Maui, we reported that the council paid for 48 rooms, yet the list of people who were provided accommodations totaled only 45. According to council communications officer Sylvia Spalding, “Three council members were inadvertently omitted from the list of persons who lodged at the Marriott during the June meetings and was provided in response to your FOIA request. The Council in fact paid for 48 rooms for 48 persons.”

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