(*The last two paragraphs have been amended to correct errors in the printed version.)
If water is for fighting over, it’s not surprising that Kawai Nui, “the big water,” has been at the center of so many battles over the decades involving all levels of government, community groups, and private landowners.
The current dispute over the marsh can be traced to New Year’s Eve 1987, when heavy rains caused floodwaters to top the levee built along the marsh’s makai border in the 1960s by the Army Corps of Engineers to protect Kailua’s Coconut Grove subdivision from flooding. Roughly 2,000 homes were damaged by the flood, according to newspaper reports, and in the aftermath, residents sued the city, which owned the marsh and had an agreement with the Corps to maintain its flood control system, including the levee. The city reportedly ended up paying nearly $14 million in damages by 1994.
In 1990, state senator Richard Wong introduced Sentate Bill 3127 seeking to require the city to transfer the marsh to the state.
“Both the city and the state want the marsh transfer. In the past, however, the transfer was part of negotiations for the transfer of several other parks, road and highways, which were not successful. The current rains remind us again – we just can’t wait,” another state legislator, Kailua representative Ed Bybee, was quoted as saying at the time.
In 1989 and 1990, then-Governor John Waihe`e and then-Mayor Frank Fasi exchanged several letters in which they argued, always with “kindest” or “warm personal” regards, over who was going to take over flood control once the marsh was transferred to the state. Fasi argued that the state Department of Land and Natural Resources had agreed to take over management of the wildlife and flood control features of the marsh, wanting the marsh to be under a single jurisdiction. Waihe`e responded that the state didn’t have the resources to manage the flood control system and should limit its role to managing the wildlife, cultural, and recreational resources of the marsh.
Despite their disagreements, Wong’s bill was passed in July 1990, becoming Act 314, which required the city’s title to and interest in the marsh, except for a community park area, to be vested in the state in fee simple. The act required the city and the Army Corps to complete all pending flood control projects to the satisfaction of the DLNR before transferring the marsh to the state and required the state to enter into any necessary operation or maintenance agreements with the Army Corps. Pending completion of the transfer, the act also required the state and city to enter into some kind of agreement to allow the DLNR to manage the economic, ecological, and cultural resources of the marsh.
Nearly 17 years later, representatives from both the city and the state are still fighting over how to implement that legislation. And in January, state House representatives introduced yet another bill, HB 1899, calling on the city to transfer Kawai Nui marsh to the state.
“This dispute has delayed restoration and rehabilitation of the marsh to the point where the health of the marsh needed to support its native wildlife population is in crisis. It is in the public interest that the State immediately take primary responsibility for the economic, ecological, and cultural resources of Kawai Nui Marsh. Federal funding is available to the State to carry out this responsibility and the funding opportunities could be lost if the dispute between the State and city and county of Honolulu is not resolved,” the bill states.
According to documents at the DLNR, it didn’t have to be this way. Just a few short years ago, staff with the city and the state had come pretty close to an agreement. But with the changing of the guard in the gubernatorial election of 2002, all sides involved seem to have lost ground.
Hang Ups
In the years following the passage of Act 314, the city and the Army Corps spent nearly $7 million upgrading the marsh’s flood control system, opening a channel inside the marsh and raising the levee by four-and-a-half-feet.
In 1994, the Board of Land and Natural Resources authorized the DLNR to enter into a three-year lease with the city to allow the department to carry out various aspects of its Kawai Nui Marsh Resources Management Plan.
The lease transferred control of 745.586 acres to the DLNR until the Army Corps completed flood control project improvements. Upon completion, the lease area would be conveyed in fee by the county to the state, a June 24, 1994, Land Division report states. The lease was set to expire at the end of 1997.
According to Land Division documents from 1996 to 2002, the DLNR spent a lot of time preparing itself for the transfer of flood control responsibilities.
An April 1, 1996 memo from Sterling Yong of the department’s Flood/Dam Safety Program to Land Division administrator Dean Uchida states that after the new levee is completed and inspected, “a timetable needs to be established for the ownership transfer process which includes a flood control operation and maintenance agreement between the state DLNR and the COE. Funds would need to be obtained for the annual operation and maintenance of the marsh.” [The italicized words had been highlighted in yellow].
Yong added that the DLNR’s Division of Forestry and Wildlife would take the lead on marsh management, its Historic Preservation Division would deal with cultural sites, and the Land Division would handle flood control.
In response to Uchida’s hope that the state would not be responsible for operation and maintenance costs for the flood control project, Yong wrote that under Senate Bill 3127 (which became Act 314) “there is no way we can avoid this responsibility.”
As the Land Division brainstormed about its future staff, equipment, and funding needs, the city completed its flood control improvements on June 9, 1997 and on November 26, sent conveyance documents to the DLNR, which was expected to sign them by the time the lease expired.
To the state, however, accepting the marsh was not a simple matter of putting pen to paper.
“Despite our efforts, your staff indicated that they do not want the fee ownership of Kawainui Stream (Kaelepulu Stream) and Oneawa Canal because of liability and maintenance concerns,” city director Jonathan Shimada wrote in a January 6, 1998, letter to then DLNR director Michael Wilson. Kawai Nui Stream runs makai of the levee and was considered part of the marsh to be transferred to the state. Oneawa Canal, on the other hand, is considered by the city and Army Corps to be part of the overall flood control system, but is not part of the marsh.
“As a compromise,” Shimada continued, “we proposed to accept Kawainui Stream…provided the State accepts ownership of Oneawa Canal… Even though Oneawa Canal is not listed as a facility to be transferred, it is an integral part of the original Kawainui Marsh Flood Control Project constructed in the 1960s. The Corps of Engineers also prefers to have [and is, in fact, requiring that] one agency retain ownership of the project.”
In April of that year, the Legislature resolved part of the problem when it amended Act 314 with Act 47, which deleted Kaelepulu Stream from the area to be transferred. Later that year, the DLNR drafted an environmental assessment for management activities in the marsh as a precursor to filing applications with the city for a Special Management Area use permit, and with the Land Board for a Conservation District Use Permit.
Those management activities, drawn from a 1983 plan by the Department of Planning and Economic Development, and a $500,000 1994 master plan by Wilson Okamoto & Associates, include the construction of a flood control maintenance facility; a 70-acre, $5 million waterbird habitat restoration project to be implemented by the DOFAW and the Army Corps of Engineers; and an education center, among other things.
Although the city and DLNR had agreed that the DLNR would accept management and maintenance responsibilities for the marsh on October 1, a November 1998 internal DLNR memo from Uchida to co-workers involved in the transfer indicates he did not want to accept the marsh until the City Council approved the SMA permit application.
“It does not make sense for the state to accept ownership if the city is not going to let us manage the marsh. [The city’s] John Shimada’s position was that the legislative directive was for the marsh to be conveyed to the state, and that is what must be done. My position is why should we accept the ownership and liability if the city hasn’t decided if they agree with how we propose to manage the marsh? If we accept ownership and the city does not approve our SMA permit how do we implement our programs for flood control and wetland restoration?” he asked.
Some of Uchida’s concerns were eventually resolved: In March 2000, the DLNR completed the environmental assessment of the Kawai Nui Management Plan. In September, the DLNR applied for an SMA permit for management activities, which was granted in December 2001. Then in January 2002, the Land Board approved a CDUP for the flood control and habitat restoration project.
Resolution?
By late 2002, after 13 years of often frustrating negotiations, the DLNR was on the verge of accepting Kawai Nui marsh from the city, flood control areas and all.
Land Division staff had drafted a report to the Board of Land and Natural Resources recommending the board accept 703.758 acres that make up the bulk of Kawai Nui marsh, with roughly 10 acres set aside to the city for a model airplane field and the rest going to DLNR’s Division of Forestry and Wildlife to be managed as a wildlife sanctuary.
The Land Division’s engineering branch had set up a crew to carry out day-to-day flood control maintenance duties and to take on the city’s responsibilities set forth in a 1993 cooperative agreement with the Army Corps of Engineers. The division had also drafted standard operating procedures for flood events and had an estimated annual budget for flood control.
In a November 8, 2002, letter to Susan Miller of the Kawai Nui Heritage Foundation, who had inquired about the status of the long-delayed transfer, outgoing DLNR director Gilbert Coloma-Agaran wrote that the matter would be brought to the Land Board before the end of the year.
But by the end of the year, the transfer, mandated by 1990’s Act 314 and 1998’s Act 47, had still not come before the Land Board. In 2003, incoming governor Linda Lingle replaced Agaran with former Hawai`i County deputy director Peter Young. Conveyance documents from the city sat (and still sit) in Land Division files, signed by the city, but not the state. In addition to conveyance documents, Land Division records also include an apparently final but unsigned submittal from Land Division agent Charlene Unoki to the Land Board dated July 11, 2003.
Exactly why it was never brought before the board for a decision is unclear. According to Land Division documents, a number of issues, big and small, awaited resolution at the end of 2002, including indemnity questions, Army Corps requirements, an unauthorized tent on and rat holes in the levee.
Whatever the reasons, by late 2003, director Young clearly had a different view of whether the 1990 and 1998 acts even required the city to transfer its fee simple interest in the marsh to the state, especially with respect to flood control responsibilities.
In a December 30, 2003 letter to then Honolulu Mayor Jeremy Harris, Young stated that talks regarding the transfer and the associated flood control responsibilities were ongoing. Not wanting his department’s reservations to hold up the habitat restoration project, Young asked Harris to agree to a license agreement for the city’s lands to be included in the project (the state owns two-thirds of the project area; the city owns the remaining third). Such an agreement would allow the DLNR to enter into a Project Cooperation Agreement with the Army Corps of Engineers, which is providing the bulk of the funds, and would preserve funding for the project, Young wrote, noting that the city and the DLNR already have a similar license agreement for managing the Pouhala Marsh wetland.
The city, possibly upset with the state over its change of heart regarding flood control, has resisted granting such a license. Even so, the DLNR and the Army Corps signed an agreement on November 18, 2004, to complete planning, engineering and design of the project.
In 2005, state legislators introduced three resolutions aimed at getting the federal, city and state governments to resolve the ownership conflicts plaguing Kawai Nui marsh. The DLNR opposed all three, arguing that Acts 314 and 47 required only the conveyance of the marsh to the state, and not the transfer of ownership and flood control responsibilities – a position it maintains today.
In the midst of all the wrangling, the Conservation District Use Permit for the flood control and waterbird habitat project, which required any construction to be implemented within three years of approval, has expired. Worried that the conflict between the city and the state was jeopardizing restoration of waterbird habitat, Linda Paul, executive director for aquatics for the Hawai`i Audubon Society, expressed her concern in an October 17 letter to Mayor Mufi Hannemann.
In his October 21 response, Hannemann blamed the state for endangering the project.
“The city had prepared the transfer documents for Kawainui Marsh and Oneawa Canal, which are now in the hands of the DLNR and it is free to execute the documents as outlined in Act 47… and save the waterbird habitat project. This will also satisfy the COE preference to have one local agency responsible for the flood control project,” he wrote.
Given a 2002 memorandum of agreement between the city and the DLNR that was part of the deal and the department’s establishment of a Kawai Nui marsh crew, Hannemann wrote that the DLNR clearly “knew of its responsibility for the flood control project and was taking action to honor that obligation. It is the state that is holding up the transfer… As much as we are concerned with the progress of this habitat project, we believe that the fate of the habitat project is in DLNR’s hands.”
Hannemann’s letter suggested that conflicts between DOFAW and the DLNR’s engineers had contributed to the delay. Although the DLNR was preparing in 2002 to split the management responsibilities for the natural resources and flood control between DOFAW and the Land Division, it is unclear in Unoki’s 2003 submittal by what authority the Land Division would undertake its duties.
Indemnity requirements by the Army Corps may have also contributed to the delay. In 2002, as the Land Division was preparing its recommendations to the Land Board, chief engineer Andrew Monden sent a proposed amendment to the Local Cooperation Agreement (LCA) between the city and the Army Corps for the construction of the Kawai Nui Marsh Flood Control Project. Under the amendment, the state would assume the city’s rights, responsibilities, and obligations to maintain the project in perpetuity and indemnify the federal government from any damages or claims resulting from any event after the amendment’s effective date. The original agreement, signed in 1993, allowed the city to receive $5 million in federal funds to make improvements to Kawai Nui’s flood control system.
In an August 23 memo to Monden, then deputy attorney general Yvonne Izu wrote, “As you know, the state does not enter into indemnity agreements…[unless] such indemnity is required in order to receive federal aid.”
In July 2006, Land Division administrator and former deputy attorney general Russell Tsuji also noted that there was a question whether the LCA could in fact be amended to absolve the city of the responsibility it accepted in 1993.
In late 2005, the Governor’s and Lieutenant Governor’s offices proposed having the city implement the waterbird habitat project or change the federal authority under which the project fell, but it was to no avail. Neither option made sense, according to the DLNR.
So in 2006, House Bill 3056 was introduced to again require the transfer of Kawai Nui marsh from the city to the state, this time clarifying that the levee system is not to be included in the transfer. In the end, it failed. Even so, the Land Board later approved a recommendation by its Land Division to acquire 693 acres of Kawai Nui marsh, give them to DOFAW to manage as a wildlife sanctuary and issue easements to the city and the Army Corps of Engineers to deal with flood control. Although the Land Board approved the recommendation last July, the DLNR has not acquired the marsh from the city, which is still trying to pass off its flood control responsibilities.
This past January, state House representatives introduced House Bill 1899, which like HB 3056 clarifies that the levee system is not part of the marsh and requires the Oneawa canal to be transferred as well (the canal is actually owned by the state, but is currently controlled by the city via an executive order). Whether or how this bill will change during the session remains to be seen. As of mid-February, the committee on Water, Land, Ocean Resources and Hawaiian Affairs had requested that the Finance Committee review the bill to ensure that the city retains responsibility over flood control.
— Teresa Dawson
Volume 17, Number 9 March 2007
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