In the Conservation District

Water Commission Is Poised to Vote On Proposal to Tap Makaleha Springs

The state Commission on Water Resource Management has scheduled a meeting on August 2, at which time it is to vote on a proposal to divert water from the Makaleha Springs, on Kaua`i’s eastern side, for use in the county’s municipal drinking water system.

(This diversion, which would direly impact one of the only known populations of the Newcomb’s snail, or Erinna newcombi, has been the subject of several articles in previous issues. See, for example, the April 1995 Conservation District columns, and the March 1995 cover story of Environment Hawai`i.)

In recent months, public scrutiny of the project has increased. A community group has been organized — Water for Kapa`a Task Force — to attempt to get to the heart of claims made by project advocates about future water demand in the area. The Army Corps of Engineers has stated it is reviewing its previous decision to let the project proceed. The state Department of Health has notified the lead agency, the Division of Water and Land Development of the state Department of Land and Natural Resources, of the insufficiency of DOWALD’s application for a certification that the project will have no adverse impact on coastal waters. And the federal Fish and Wildlife Service has entered into an agreement with DOWALD providing for “last-ditch” measures intended to prevent the total destruction of the snail population should the project get the go-ahead, all the while affirming its staunch opposition to the project.

A House Divided

Perhaps the harshest exchanges over the project’s merits, however, have come about in correspondence between DOWALD and its sister agencies within the Department of Land and Natural Resources.

On May 2, 1995, DLNR chief Michael Wilson asked Manabu Tagomori, chief engineer and administrator of DOWALD, to provide specific answers to several detailed questions about the project’s cost, including the cost of treatment should the Department of Health regard the springs as a surface-water source. “Since the inception of the project, there have been many changes to the scope of work and costs of the Makaleha Springs Development Project,” Wilson wrote. “Concerns about the feasibility of filtering the spring water to comply with the Surface Water Treatment Rule, the agreement to transplant Newcomb’s snail, and the agreement to use helicopters to transport construction materials to the spring site indicate the need to obtain current cost estimates for the project.” Wilson went on to ask Tagomori a series of detailed questions about all phases of the project and possible scenarios, and inquired if there were “sufficient project funds available to cover all costs? If not, are there committed additional funding sources available.” Wilson closed by asking Tagomori to respond by May 31.

‘Inappropriate’ Questions

On June 13, Tagomori replied to his boss. “We are surprised by the type of questions contained in your memo of May 2, 1995, and feel that it is unprecedented that costs and ‘possible’ future costs are included in the basis of consideration of an application for a well-drilling permit,” he wrote. “However, although we feel that many of the cost questions appear to be inappropriate, we have developed current cost data for the project and will discuss it herein.”

Before launching into that discussion, though, Tagomori enumerated the various expressions of support from different agencies for the project. There was “total and unanimous” support from Kaua`i County officials, he said, as well as support from the state Department of Education and the Department of Public Safety, both of which were planning modest expansions of facilities in the Kapa`a area. In addition, he noted that three members of the state House of Representatives had said they would help seek additional funding, should it be needed.

Tagomori noted that the contract for the project, issued in July 1992, called for spending $847,235. With inflation and added costs of “environmental mitigation,” the cost of the project rises to $1,352,000.

The state had appropriated $757,635 for the project, with an additional $42,365 set aside as a “contingency,” Tagomori wrote. Kaua`i County had appropriated $89,600 to the contract, while the county Department of Water had reserved $530,400 to help with the project. “Totals reserved for project” were listed at $1,420,000. In addition, Tagomori noted, the county Board of Water had pledged support for finding funds needed for surface-water treatment costs, should that be necessary.

A treatment plant would cost $740,000, making total capital costs associated with Makaleha Springs development come to $2,092,000. Should the source deliver 675 gallons per minute (972,000 gallons per day), the cost per gallon-day of developed water comes to $2.15, Tagomori wrote. Operating costs would add $24,480 per year. “The above costs,” he summarized, “indicate that even with treatment, the cost for this project is still the most cost-effective by far,” as compared with costs for other selected water-development projects on Kaua`i and O`ahu, which ranged from $3.80 per gallon-day (for a well at Hanapepe), to $6.50 per gallon-day (for the Honolulu Board of Water Supply’s well at Ma`akua, near La`ie).

The Snails

In an earlier memo, this one dated April 25, Tagomori had pressed Wilson, who also serves as chairman of the Commission on Water Resource Management, to place the Makaleha Springs project on the commission’s agenda as soon as possible. In support of his request he mentioned that DOWALD and the County of Kaua`i Department of Water Supply “were very encouraged when we came to an agreement on the Newcomb’s snail with the U.S. Fish and Wildlife Service.”

But the Fish and Wildlife Service at no time has signaled its approval of the project, as Tagomori suggested. Rather, as Robert Smith, manager of the service’s Pacific Islands Ecoregion, explained in a letter to the Army Corps of Engineers on June 28, 1995, the purpose of the agreement “was to allow the Service to salvage the population of Newcomb’s snails that resides at Makaleha Springs if, and only if, the project obtained all of the necessary permits required to proceed with development… Although translocation of Newcomb’s snail has never been attempted, and there is considerable uncertainty with regard to its success, the Service felt this would be a reasonable ‘last ditch’ conservation option should the project proceed on schedule.”

In no case should the agreement be interpreted as an approval, Smith went on to say. “The project is inconsistent with the Service’s ecosystem approach to resource conservation management, the State of Hawai`i’s stream protection program, and the recommendation of the state’s Division of Aquatic Resources. We have never considered the conditions of this salvage agreement as mitigation for the Makaleha Springs project, nor does the agreement alter the Service’s stated opposition to the project.” Smith concluded by urging the Corps of Engineers to re-evaluate its earlier issuance of a permit.

Clean Water Concerns

In May 1994, DOWALD submitted an application to the state Department of Health for certification that the project would not adversely impact the quality of coastal water. This certification, known as Section 401 Water Quality Certification, is required by the federal Clean Water Act and is issued by the Department of Health Clean Water Branch. Although construction of the project would certainly muddy stream waters — and, consequently, coastal waters as well — DOWALD repeatedly answered “N/A” (not applicable) to questions intended to elicit a description of the project’s impact. “N/A” was also the answer provided to questions about the waters receiving the discharge.

On February 27, 1995, Tom Arizumi, chief of the Department of Health’s Environmental Management Division, wrote Tagomori, informing him of numerous deficiencies in the DOWALD application. Referring to DOWALD’s non-responsiveness to many of the questions, Arizumi notes: “These items are applicable to the proposed project. As such, these items should be addressed,” and he goes on to describe in detail the type of information the Department of Health requires.

By late June, the Department of Health was circulating DOWALD’s original application to various state and federal agencies. Among the agencies whose views were solicited was the DLNR’s Division of Aquatic Resources. In a letter dated June 27, 1995, that division’s program director, William Devick, gave a highly critical assessment of the project.

“We note that the application was filed more than one year ago, and that the response to most of the questions was ‘not applicable’. It is inevitable that water quality degradation will occur during the construction period, both from runoff and from dewatering of Makaleha Stream both during and after construction,” Devick wrote. “The intent of 401 Water Quality Certification is to take such effects into account to assure compliance with water quality standards and protect biota which might be affected.”

Devick pointed out that Makaleha Stream “is unspoiled by diversion or other development… It would also qualify for Heritage Stream designation, under rigorous criteria developed by the Stream Protection and Management Task Force in 1994. (Heritage Streams, under the proposed plan, would be off limits to any development; unfortunately, the program has yet to be implemented.)”

A bill designed in part to address the problem that arose in the HELCO application for a Conservation District permit to expand its power plant at Ke`ahole has been vetoed. HELCO’s application was approved by default when it refused to ask for a time extension to accommodate a contested-case hearing. (See the June 1994 Environment Hawai`i for a fuller discussion of this complex matter.) House Bill 2013 would have allowed the Land Board to initiate such time extensions on its own motion in the event the applicant refused to do so, and would have required the contested-case hearings to be completed within 360 days, instead of the virtually unlimited time frame possible in the current legal framework.

Cayetano’s veto message states that the bill would impose “a dramatic shortening of the time to complete the contested-case hearing process… Historically, the contested-case process has taken approximately twelve to twenty-four months to complete… There is a serious concern that the board will not be able to complete the contested-case hearing process within the allotted time. If the process is not completed, conservation district use permits will be granted automatically by operation of law even when such permits are not in the public interest.”

(When the Land Board has desired a speedier outcome, however, it has ensured it. The contested case hearing for the `Ewa Marina, for example, was accomplished in approximately six months, enabling a decision to be reached before the Waihe`e administration lost control of the board.)

House Bill 2013 drew some publicity earlier in the year owing to another provision: it would have included “state marine waters” in the definition of the term “conservation district,” but would have exempted waters within commercial harbors owned or controlled by the Department of Transportation. The governor’s veto message does not indicate whether he had any objections to that provision.

In 1989, the permit of Randy and Madolyn Longfield to build a house on a hillside above Lanikai, O`ahu, lapsed. The permit had been issued in 1983 and had been extended twice, most recently in 1986, when a deadline for completion of work was set at August 12, 1989.

Since then, the Lanikai Association had thought the permit was dead. In 1992, the association inquired of then-Board Chairman William Paty about the permit’s status. Paty responded that in light of the fact that the deadline had lapsed without action, it was the department’s position that the permit “may be in default and the permit is thus ‘voidable’ by the Land Board.”

That’s how matters rested until January of 1995, when David Bills of Gray, Hong, Bills & Associates, Inc. (an engineering firm) wrote Michael Wilson, the new Land Board chairman, asking for “an extension for the completion of the work approved under” the Longfield’s permit. Bills explained that the long delay in seeking the time extension was the result of defaults, litigation, and a three-year moratorium imposed by the City and County of Honolulu on construction on the slopes above Lanikai. (That moratorium expired in 1991.)

The Land Board considered the extension request at its meeting of July 14, 1995. Testifying in favor of it were Longfield, Bills, and Longfield’s attorney, Eric Maehara. Opposing it were the Lanikai Association and individual residents of the area. Following a conspicuous exchange of eye signals and nods between Maui board member William Kennison, of Maui, and Maehara, Kennison asked that the board go into executive session.

About 20 minutes later, the board emerged from its closed session. With all four board members voting, the final decision was four to two in favor of denial. Kennison and O`ahu board member Michael Nekoba cast the dissenting votes.

The Conservation District use permit issued by the Land Board to Michael Rearden (also known as Roark McGonigle and Michael Reardon) in 1987 for a single-family residence on the North Kohala coast appears to have finally been extinguished.

As reported in the July 1995 Conservation District column, the Land Board chose not to act on a petition, filed by a citizens’ group, for a declaratory ruling to find the permit null and void, since the permit, which had already been extended four times, was about to expire on its own terms on June 25.

On June 28, Board Chairman Michael Wilson informed Rearden’s wife, Janice Williams-Rearden (now technically the permittee) that the permit “is hereby null and void.” In early July, however, Williams-Rearden requested yet another time extension.

On July 14, Wilson responded. After a recap of events in June and recent correspondence, he said: “Inasmuch as the CDUP is null and void, a time extension cannot be granted at this time. As such, your request for a time extension is hereby rejected.”

On July 14, the Land Board approved minutes of its meetings of January 13 and March 10, 1995.

Volume 6, Number 2 August 1995