Closing arguments have been heard in the contested case hearing on a proposal to blast a marina on more than 900 acres of land in the ‘Ewa Plan. Robert Nakata, the hearing of–ficer appointed by the Commission on Water Resource Management – and a former com–missioner himself – is expected to make his recommendation to the commission in the coming month. The commission will make its final decision at some point thereafter.
The marina is the centerpiece of a major development project of Haseko (‘Ewa) Inc. Elements of the project include 5,000 houses, a 950-room hotel, a commercial center, and what Haseko describes as a “full-service ma–rina,” with slips for 1,400 boats, dry storage for 500 more, and seven launch ramps.
Approval by the Water Commission is the last major hurdle between Haseko and devel–opment of the marina. A permit is needed from the Water Commission because, the commission determined, the marina will re–sult in the diminishment of the aquifer’s ability to supply water to present and future users. (As seen below, however, Haseko’s attorney does not agree with this view.)
Troubled History
On December 1994, Haseko received permis–sion from the state Board of Land and Natural Resources to use state submerged lands in dredging an entry channel to the marina. That permission, granted in the last hours – literally – of the Waihe’e administration, may best be remembered for the controversy generated by remarks made by then Land Board member Libert Landgraf.
As Environment Hawai`i was the first to report, Landgraf mistakenly identified an attorney for intervener Office of Hawaiian Affairs as one for Haseko. In a casual encoun–ter between the attorney, Sheryl Nicholson, and Landgraf, Landgraf told Nicholson that her client – or at least the party he believed was her client – had nothing to worry about from the BLNR and that she should rather start preparing for the Water Commission hearing. The remarks were made while the Land Board was still supposed to be engaged in deliberations on the Haseko permit. As a result of his remarks, Landgraf recused him–self from further deliberations and eventually resigned in January 1995, under pressure from newly installed Governor Benjamin Cayetano.
An appeal of the BLNR’s decision has been filed in First Circuit Court.
Caprock Issues
Haseko had not initially planned to obtain a water use permit from the Commission on Water Resource Management. However, in January 1994, the Sierra Club Legal Defense Fund petitioned the commission, asking it to find that state law required such a permit and to order Haseko to apply for one.
The declaratory ruling was issued Septem–ber 15, 1994. Thirteen days later, just as the Land Board was hearing arguments in the contested case over the use of state submerged lands, the Water Commission authorized its own contested case hearing on Haseko’s wa–ter use permit application.
The Water Commission granted standing to challenge Haseko’s permit application to the Save ‘Ewa Beach ‘Ohana, Ka Lahui Hawai’i, Life of the Land, Safe Our Surf, and the Sierra Club. Representing them in the contested case proceedings was attorney Paul Achitoff of the Sierra Club Legal Defense Fund.
Evidence and testimony in the contested case were presented last fall. Closing argu–ments were heard in late February.
On what must have seemed to those present a replay of the Waiahole contested case last year, attorneys Alan Oshima, for Haseko (‘Ewa), Inc., and Paul Achitoff for the public interest groups in opposition, squared off against each other once again.
In contrast to Achitoff’s arguments that the legal case against the ‘Ewa Marina was practically self-evident, Oshima claimed that the issues were of far greater complexity. “It is clear,” Oshima writes, “that because the aqui–fer involved is unusual, because there are many interim permits for pumpage and be–cause it is not a basaltic water source, the application of the evidence to the require–ments of the Water Code may be a little more involved.”
The caprock aquifer presents “an unusual regulatory situation,” Oshima writes. De–spite the Water Commission’s declaratory ruling that Haseko would need to seek a water use permit for the marina, Oshima once again argues that what is being sought is not a consumptive use of water. “First and foremost,” he writes, “the application is to dredge a marina, not a well.”
In addition, the caprock aquifer is “basi–cally a creation of recharge from irrigation,” he goes on to say. “Once O’ahu Sugar Co. stopped irrigating sugar cane with imported fresher basaltic water, the character of the aquifer substantially changed. It has become saltier.”
In any case, he claims, given the near-exclusive use of caprock water for irrigation, it is more important to regulate the quantity of water withdrawn than it is to regulate its chloride content. Thus, he writes, “Pumping methods and [well] locations within the [aqui–fer] sector may be more important in this effort than the actual head levels.”
A fourth point he makes is that the Water Commission has put existing users of caprock water on notice that “only interim permits with one-year or shorter durations would be issued.” “Thus,” Oshima continues, “whether and to what extent there are ‘existing legal uses of water”‘ that will be affected by the marina “is not the same as would be present in other allocated aquifers.”
Unlike the basal aquifer – which “is protected by the entire ‘Ewa caprock sequence,” the caprock aquifer is more like a “leaky bucket” or a “leaky pipe” Oshima writes. “So,” he continues, “the storage ca–pacity of the aquifer, especially at its makai boundary where the marina is proposed to be dredged, may not be an appropriate measure of the continued value of the aquifer.”
Legal Conditions
The Commission on Water Resource Man–agement determined in its declaratory ruling that the permit application would be judged in accordance with Section 174C-49, Hawai’i Revised Statutes. (Chapter 174C is the Water Code. Section 174C-49 sets forth seven con–ditions, all of which must be met before the Water Commission may grant a water-use permit.)
The first of these conditions is that the sought-after use can be accommodated with the available water source. In addressing this condition, Oshima simply claims that the marina “will not use water.” This statement is made despite the Water Commission’s deter–mination in its declaratory ruling that the marina would be “functionally similar to a pumping well which cannot be shut off.” (Elsewhere, Oshima elaborates on this, stat–ing the marina won’t use water, but will “merely redirect the flow of some of the water along the shoreline.”)
As to the second condition – that the anticipated use be “reasonable-beneficial” Oshima states that the marina meets this condition inasmuch as, again, it “will be economic and efficient because it will not use water.” In addition, he says, the marina “will be consistent with the public interest because it will generate commercial and industrial activity (including new jobs); will enhance public recreation and navigation…; will not destroy fishing and limu gathering areas; [and] will not pollute the nearshore environment.”
Contrary to opponents’ claims that the marina will damage existing uses, Oshima argues that its effect will be “minimal” beyond Haseko’s own property. In any event, he goes on to say, there are only a “few non-interim” well permits in the area. In the unlikely event that a well is damaged, Oshima writes, it will most probably be the interim permit of the Hawai’i Prince Golf Course. Should that occur, then the Water Code provides that the merits of each competing application – Haseko’s and the golf course, in this hypothetical case – be analyzed, Oshima notes. “The marina would prevail,” he writes, while Hawai’i Prince can be instructed to find alternative sources, such as reclaimed efflu–ent.
Oshima acknowledges that the marina will damage Haseko’s own well EP-27, which is allowed to pump 2.66 million gallons a day for agricultural use and 1.5 mgd for golf course use. But, he notes, “Haseko has said it will seek other sources.”
In asserting that the marina is in the public interest, Oshima recites the jobs and ameni–ties that the development’s backers claim it will provide. In addition, he states it will not harm the nearshore environment, will not damage habitat for fish or limu, and will not interfere with traditional and customary Ha–waiian rights. “In fact,” he writes, “the im–proved ocean access resulting from the ‘Ewa Marina development should make fishing and gathering practices in the area accessible to more people, while increasing the opportunities for Hawaiian cultural activities such as canoe paddling in protected waters.”
To counter opponents’ concerns that the marina would degrade nearshore resources, including limu, Oshima cited the testimony of Steven Dollar, a marine resources consult–ant hired by Haseko to testify in the case. The opponents expert witness, Edward Laws, argued that the redistribution of brackish water entering the ocean along the ‘Ewa coast would harm limu, while Dollar “opined that it wouldn’t,” Oshima writes. “Now, recall that both experts agreed that the high wave and wind action in the nearshore area rapidly mixed and diluted anything introduced at the shoreline,” Oshima says.
“Even in light of this conclusion,” Oshima continues, “Dr. Laws opined that the redistri–bution of the 5.7 mgd of ‘fresh water’ along the several miles of shoreline, really a ‘drop in the bucket,’ would somehow hurt limu pro–duction there. This just doesn’t make sense. In support of his position, Dr. Dollar submit–ted information from other areas which showed the absence of significant limu in areas of relatively high fresh water seepage… We submit that Dr. Dollar has supported his testimony in this regard and that the evidence will support a finding that the redistribution “of caprock water seeping into the nearshore area should not significantly impact limu production there.”
Other conditions specify that the project not harm water sources needed by the De–partment of Hawaiian Home Lands and that it be in accord with state and county land use plans. Compliance with these two conditions was not really at issue in the contested case.
A Liberal Interpretation
Oshima gives great weight to Section 174C-2, the Water Code’s “declaration of policy.” “Section 174C-2(c) requires that the Water Code be interpreted liberally to obtain maxi–mum beneficial use of the waters for purposes including commercial and industrial uses,” Oshima writes, continuing: “That same sub–section also requires that adequate provision be made for the preservation and enhance–ment of waters for among other things municipal uses, public recreation, and navigation.” The marina project, by providing berths, boat ramps, public rest rooms, marina operations, public pedestrian walkways, and the like, easily meets the policy goals of the Water Code, Oshima claims.
This “liberal” interpretation “is just the opposite of the strict and inflexible interpretation” advanced by the marina’s opponents, Oshima argues. “We submit that while the public interest groups and Oshima have claimed that this case is ‘simple’ and ‘easy’ based upon a strict interpretation of the Water Code, the law which plainly requires a liberal interpretation does not support that position.”
Paul Achitoff, managing attorney for the Sierra Club Legal Defense Fund, which is representing the groups opposing the marina, feels that if the commission simply follows the law, there can be no approval for the ‘Ewa Marina. “This is a simple case of a developer asking to take water – permanently – from an aquifer that is already overallocated and cannot accommodate its request,” Achitoff states in his written closing argument.
Haseko has sought to distract the commis–sion “away from the conclusions compelled by applicable law by offering visions of ‘com–munity benefits’ and trying to cajole the commission into weighing them against the undeniable harm to the resource,” Achitoff continues. “Such a balancing test is contrary to law. Haseko cannot buy the right to de–stroy Hawai’i’s public trust resources. For that matter, the evidence shows that even those aspects of the project that Haseko ap–pears to consider its strong points – the purported ‘community benefits’ – are at best unsupported wishful thinking.”
Seven Conditions
Achitoff holds the project up to the require–ments of the Water Code – specifically, the conditions necessary for granting of permits – and finds it falls far short of the mark.
Unlike Oshima, who claims that there is no draw-down of the aquifer at all, Achitoff embraces the view of the commission, find–ing that the marina will indeed draw water from the caprock aquifer, just like “a pump–ing well which cannot be shut off” The marina will cause a permanent drop in well heads throughout the caprock aquifer and, by moving the shoreline about 3,000 feet inland, will cause salinity levels to rise.
Haseko has admitted that the marina will result in the loss of one of its own wells, Achitoff notes, but claims that effects on the wells of others in the area will be limited or insignificant. “These arguments miss the point,” Achitoff says. “The law does not say that, to obtain a water use permit, an appli–cant must prove that the proposed use ‘will not interfere with existing legal uses other than Haseko’s,’ or that the use ‘will not interfere with existing legal uses to an extent that Haseko’s paid consultant is willing to say is significant.'” The allocation Haseko has to draw water from its own well “merely gives it the right to use a certain amount of water, not destroy it,” Achitoff notes.
Achitoff also states that the modeling used by Haseko’s experts to determine the effect of the marina on the caprock aquifer is out–dated. “The modeling was done three years ago,” he writes, “while O’ahu Sugar was still irrigating its fields over the caprock with over 15 mgd [million gallons a day] of water from the basalt aquifer.” With O’ahu Sugar now out of business, the lack of irrigation water feeding the aquifer “has resulted in profound changes in the caprock, which has not yet stabilized,” Achitoff writes.
Potentially Potable
In response to Haseko’s arguments that the caprock aquifer is less worthy of protection because it is more saline than the basalt aquifer or is “manmade,” Achitoff argues that neither claim is accurate. The aquifer’s chlo–ride content is “an order of magnitude lower than [the level] the Environmental Protec–tion Agency considers nonpotable.” EPA regu–lations require any aquifer containing fewer than 10,000 parts per trillion total dissolved solids to be protected as a drinking-water source. The caprock aquifer has fewer than 1,000 ppt. If population growth on O’ahu continues, Achitoff writes, desalination of more brackish water sources, such as the caprock aquifer, to supply potable water is inevitable.
Limu Loss
The marina would have impacts on Native Hawaiian gathering rights as well, Achitoff argues. Groundwater from the caprock aqui–fer flows into the ocean, carrying with it nutrients that feed limu, or seaweed, found along the ‘Ewa coast. Indeed, Achitoff writes, the area is one “of the most popular and productive limu gathering areas on O’ahu.” Edward Laws, an expert witness for marina opponents, testified that the Haseko develop–ment would divert the nutrients into the marina and be unavailable for the limu. Dis–agreeing with Laws was Steven Dollar, who claimed the limu would be unaffected by the marina.
“Because these opinions conflict,” Achitoff writes, “and because there is no way to know for sure who is correct until the damage is done, the commission should consider these witnesses’ credibility. Dr. Laws performs re–search on phytoplankton (algae, or limu) ecology, teaches phytoplankton ecology at the University of Hawai’i, and has personally cultivated edible limu… He has been a profes–sor at the university for 22 years and has authored more than 80 articles for peer-reviewed scientific journals, including peer-reviewed articles on the precise matter at issue here: the relationship between nutrients and limu.
“No evidence was submitted that Steven Dollar has any expertise or experience in growing, gathering, or eating limu, that he has taught any class about limu, has published any peer-reviewed work on limu, or knows what conditions are necessary for edible spe–cies of limu to thrive…. Dr. Dollar is a profes–sional all-purpose witness who makes his living testifying on behalf of developers, and his work displays his bias…. He has written at least 66 reports on behalf of developers assessing the likely threat of their proposed projects on the marine environment. Dr. Dollar has never yet expressed the opin–ion that any of the proposed projects he has been hired to study would harm the environ–ment, and has never yet recommended against any such project going forward.”
Dismal Prospects
Even if one accepts claims that the marina will bring economic and social benefits, Achitoff argues, this is predicated on the economic success of the project. And that success, he goes on to say, is far from certain. “The evidence casts considerable doubt on Haseko’s claims that the project will succeed as planned,” Achitoff writes. “In fact, to say that the outlook is uncertain is charitable; the projections provided by Haseko’s own feasi–bility consultant, Lawrence Williams of Wil–liams-Kuebelbeck & Associates, are dismal… [T]he analysis Mr. Williams performed of the project’s feasibility is replete with unsup–ported and unrealistic assumptions, all of which skewed the results towards suggesting a greater demand for slips than more accurate data (and correct arithmetic) would have shown.”
Among other things, Achitoff notes that Williams assumed that “any O’ahu family with an income of $75,000 can afford to purchase and maintain a boat at least 27 feet long and a slip costing at least $3,000 annu–ally.”
“Is this a realistic assumption,” Achitoff asks. “Certainly Mr. Williams has no idea – and it seems incredible that anyone would take for granted that affordability would not be a significant issue at this income level on O’ahu.”
Williams “assumed that 40 percent of the residential growth in ‘Ewa until 2010 would be in households with at least $75,000 annual income – although he had no data on which to base this assumption,” Achitoff says. “This income level currently represents the most affluent 17 percent of the population on O’ahu… That Ewa – not currently known for its affluence – will be packed with such households over the next 15 years seems rather doubtful.”
‘Happy Talk’
Not only did Haseko fail to show how its project would survive financially, it also “failed to support with any credible evidence its happy talk about how the project would benefit the public,” Achitoff writes. “While Haseko may imagine that what may (possi–bly) be good for Haseko would be good for O’ahu, the evidence does not support the conclusion that the project would be good for either.”
Haseko claimed that the project would reduce teen delinquency, create opportuni–ties for recreation, and curb teen pregnancy, among other things. “Did the hearing officer hear such evidence?” Achitoff asks. “No…. There is no evidence that the proposed ‘Ewa Marina project would have any effect on socioeconomic problems in the area.”
Achitoff also disputes Haseko’s claims of the many jobs to be created by the marina. “Haseko hired consultant Bruce Plasch to testify about the myriad business opportuni–ties… But while Dr. Plasch spoke with great enthusiasm about the project and all of its associated businesses, he failed to provide any evidence that any of these businesses would be profitable – or even that anyone intends to open them.”
Plasch’s “well-compensated boosterism is not credible evidence,” Achitoff goes on to say. “Jet-skiing in the open ocean off ‘Ewa Beach? Really. Either Dr. Plasch has never been to ‘Ewa Beach or has never seen a jet ski in operation, or both. Glass-bottom boat rides? To look at what?”
Another Haseko witness, pastor David Parker, testified that the project would en–courage development of community-based businesses in ‘Ewa. Achitoff quotes from the testimony of Parker: “I think there will be a number of fast food places, which are good for young people.” “The potential to attract a few more fast-food franchises hardly seems a compelling reason to allow the construction of the project,” Achitoff comments.
Steve Dollar, a consultant and half-time re–searcher at the University of Hawai’i’s School of Ocean, Earth Sciences and Technology, is often hired by developers to study the envi–ronmental impacts their proposals may have on water quality. According to Dollar’s own curriculum vitae, he has prepared 66 of these “environmental reports,” as he de–scribes them.
When Dollar testified at the Waiahole contested case hearing last April before the state Commission on Water Resource Manage–ment, he was asked by Paul Achitoff attorney for the Waiahole-Waikane Community Association, to suggest how many of those reports had recommended against the developers’ proposals. “Can you name one of those reports that you prepared on behalf of devel–opers in which you determined that the development was likely to have a significant negative impact on the marine environment?” Achitoff asked.
“Yes,” Dollar replied.
“Which one?” Achitoff asked.
“The one regarding the extension of the Hilo sewage outfall into Hilo Bay,” was Dollar’s response. In that case, he said, “we found in the course of that [study] a very healthy coral community growing in deep water in the bay, which was the projected site of the outfall extension. As a result of that, that outfall extension was never built and it still hasn’t been built.”
Chapter Two
Fast forward to October 11, 1996. Dollar again was retestifying in a contested case hearing before the Water Commission, this time in relation to the proposed blasting of ‘Ewa Marina. Once more, Achitoff was cross-examining him, this time on behalf of clients Safe Our Surf, Save ‘Ewa Beach Ohana, Life of the Land, Sierra Club, and Ka Lahui Hawai’i.
Achitoff reminded Dollar of his earlier testimony in the Waiahole case.
“Were you not trying to suggest, when you cited the Hilo Bay … sewage outfall extension project that you worked on, that as a result of your report identifying a negative environmental impact, that project didn’t go forward? Isn’t that what you were suggesting…?” Achitoff asked.
Dollar: “At the time I wrote it, that’s what I was informed, yes. I’m not aware of what’s happened since then.”
Achitoff proceed to read back to Dollar what he had written in the Hilo Bay study. “Isn’t it true,” Achitoff asked, “that while you most definitely did identify a very healthy coral community at the site, in your report you also said, however, ‘while the communities of Hilo Bay may be considered rather interesting, from a theoretical ecologi–cal standpoint, due to the unique combination of environmental factors, the area does not appear to represent any type of rare or endangered marine community or a system that might be expected to be particularly susceptible to temporary environmental alteration’…
“And then, ‘with respect to the extension of the Hilo sewage outfall, it appears inevi–table that reef areas with high percentages of living coral will be traversed. However, it appears that such a situation will not repre–sent any manner of significant detrimental activity.’
“And you concluded by saying, ‘there does not appear to be potential for any type of negative environmental resource-related con–sequences related to the proposed outfall extension’…
“Now, do you think that is a good example of a report in which you stopped the project by pointing out a negative environmental consequence, Dr. Dollar?”
Dollar eventually answered, “Well, my report did stop the project,” a contention that Achitoff again disputed.
“Are you aware,” he asked Dollar, “that the reason that the project did not go for–ward had absolutely nothing to do with your report?… that the reason that the project didn’t go forward was because the denied Hawai’i County’s application or Section 301(h) waiver of the requirement to go to secondary treatment, because of the enhanced treatment and the slower growth in the community, the county re-evaluated the need for the outfall extension. It had nothing to do with coral and had nothing to do with your report.
Dollar: “I have no idea…”
Achitoff: “In fact, Dr. Dollar, have you ever written a report in which you were hired by a developer – have you ever written a report in which you concluded that the development would have such nega–tive environmental consequences that you recommended against the project going forward?”
Dollar: “I’ve never written one with that kind of blanket statement, no. But, as I said, every report that I write considers the alterna–tives, and I’ve made many recommendations changing projects so they won’t have any, or minimize, the environmental impact.”
Achitoff: “Isn’t it true, Dr. Dollar, that your entire career as a consultant depends upon the fact that you can be relied upon by developers to write reports that say there will be no adverse consequence of their project?”
Dollar: “Not in my opinion.”
Achitoff: “I have no further questions.”
Volume 7, Number 10 April 1997