In the Conservation District

posted in: July 1994 | 0

Land Board Approves Kaua’i Project That May Harm Rare Snail Species

At its meeting of June 9, 1994, the Board of Land and Natural Resources gave its approval to a Conservation District Use Application for construction of a municipal water delivery system along the Makaleha Stream in Kapa’a, Kaua’i.

The project involves taking approximately a million gallons of water a day from Makaleha Springs and running the water through iron pipes some 4,000 feet until it reaches a county reservoir. The cost of the project will be about $1 million to the state and roughly $100,000 to Kaua’i, according to state and county sources.

At the time of the Land Board meeting; the Department of Land and Natural Resources’ Division of Water and Land Development, which was proposing the project, had recently been informed by the U.S. Fish and Wildlife Service that the project would probably wipe out one of just two known populations of a rare freshwater snail. DOWALD did not bring this information to the board’s attention.

The CDUA was remarkable in several other respects. While most CDUAs are processed by the DLNR’s Office of Conservation and Environmental Affairs, this one was processed by the applicant, DOWALD. In addition, the project under consideration dates back to the early 1980s. Because of deficiencies in the original environmental impact statement, the project was delayed.

As Kaua’i Board of Water Chairman Mike Kido pointed out in written testimony, federal standards governing drinking water have grown far more stringent in the years since the project was conceived. Should the Department of Health or the Environmental Protection Agency decide that the proposed water system derives from a surface-water source, it will be probably be impossible for the County of Kaua’i to bring this water up to federal standards without spending many millions of dollars on a treatment plant.

‘Under the Influence’

Kido quoted a July 9, 1992, letter from Department of Health Director John Lewin to the Office of Environmental Quality Control, in which Lewin described the water source as very susceptible to being “under the influence of surface water runoff.” A treatment plant able to handle one million gallons a day of surface water would cost the county $3.5 million, Kido said – which the county probably could not afford.

Manabu Tagomori, DOWALD chief engineer, told the board he was aware of the expensive treatment requirements that would be required if this source were treated as a surface-water source. For that reason, the project was designed to be entirely enclosed.

An Unspoiled Stream

Tapping the springs will affect the level of water in Makaleha Stream. This, in turn, will affect stream life. The state Division of Aquatic Resources, in commenting on the project, reported that Makaleha Stream, a tributary of Kapa’a Stream, was biologically too valuable to sacrifice to any economic gain that the project might provide, “especially when other, less disruptive alternatives are available.”

“The implicit assumption in [DOWALD’s] project ……. is that as long as there are no species listed by the federal or state government as rare, threatened, or endangered, there should be few constraints on development,” DAR wrote. “Especially in Hawai’i,” it continued, “a more enlightened view is needed: the emphasis should be shifted from individual species to habitat or ecosystem protection, with a presence of diverse native species, threatened or not, serving as a major indicator of the biological value of a given area.”

The fieldwork for the environmental impact statement was done in the mid-1980s. Since then, the Division of Aquatic Resources reported, “our knowledge about stream biota and sampling procedures has advanced substantially.” A stream survey conducted barely a month after Hurricane ‘Iniki, “when the aquatic animal populations would have been expected to have suffered mortality” found instead that all the native inland fish species were present, along with the native ‘opae, or shrimp. Only one exotic species of fish was found in the survey.

In addition, DAR noted that “Bishop Museum scientists have described the aquatic and surrounding native insect biota as among the most diverse in Hawai’i. Using criteria of the Hawai’i Stream Assessment, DAR said, the unspoiled Makaleha Stream would receive an “outstanding” rating for its biological resource value. DAR continued: “It is not the degraded, biologically insignificant area suggested by the draft EIS… It represents a small remnant of quality habitat in a larger stream system that elsewhere represents an environmental disaster area.”

Similar comments were provided by the Board of Directors of 1,000 Friends of Kaua’i in response to publication of the Revised Final Environmental Impact Statement for the project. In a letter of February 20, 1994, to Tagomori, Board President Fred Jager pointed out that there was no possible way to mitigate the devastating impacts that this project would have on Makaleha Stream, which would be substantially dewatered, and on the biota of the spring itself DOWALD’s position – that no endangered species are affected – “is misleading and totally irrelevant as the spring itself has never been formally surveyed for new species.”

Rare Species

On June 6, just three days before the Land Board hearing on DOWALD’s application, the U.S. Fish and Wildlife Service reported to DOWALD new findings on a species of snail found in Makaleha Stream.

The letter, signed by Brooks Harper on behalf of Robert P. Smith, Pacific Islands Ecoregion Manager for the Fish and Wildlife Service, states: “Our office has recently received updated status information on a species of endemic Hawaiian freshwater snail, Erinna newcombi. This species is restricted to the island of Kaua’i and inhabits free flowing sections or seeps of mid-elevation streams… [W]e are aware of only two extant populations, one in the upper reaches of the Hanalei River, and the other in Makaleha Stream. This species is not presently listed as threatened or endangered nor is it a candidate for listing. This does not necessarily reflect its need for protection, but rather our poor understanding of the status of Hawai’i’s invertebrates.

“The Upper Makaleha Springs Water Resource Development proposed by your office would severely modify the spring and reduce instream flow… Because Erinna newcombi actually occurs in the spring itself and requires a fast flow in the main channel, the modifications proposed in the Makaleha Springs development would undoubtedly impact this species. Given our current understanding that Makaleha is one of only two extant populations of this species, our office is considering initiating conservation efforts for this species.

“The information on this snail became available to our office too late to be incorporated into our comments on the Revised EIS, but it is our opinion that the project will adversely affect this species. We strongly suggest that a thorough survey for other populations of Erinna newcombi be conducted prior to granting final approval for this project.”

Conservation?

One of the alternatives given cursory mention in the staff submittal that of implementing a program of water conservation in the area to be served by the Makaleha Spring diversion. This, however, was dismissed as too costly, with a price tag of $200,0000.00 [sic] being cited in the report.

The Board of Directors of 1000 Friends of Kaua’i also addressed this point in an earlier letter dated June 27, 1992, commenting that conservation had been given short shrift by DOWALD. Per-capita consumption of water in the Kapa’a area, to be served by this project, was 13 percent higher than in Waimea; 10 percent higher than in Lihue. “The cost savings [associated with not developing the project] could be used to create a ‘Kaua’i Water Conservation Program,”‘ Jager wrote.

The project will next go to the Commission on Water Resource Management, which will consider whether to grant the needed well permit and stream channel alteration permit.

And what of DOWALD processing its own Conservation District use application? According to staff at the Department of Land and Natural Resources, line divisions were instructed last year to start handling their own CDUAs.

Board Defers Action On Kaua’i Contested Case

More than two years ago Wai Ola, a citizens’ group on Kaua’i, asked the Board of Land and Natural Resources for a contested case hearing on the permits issued to Clancy Greff, whose tour boat operation loads and unloads passengers at Makua Beach in Ha’ena. Still, at its meeting of June 9, 1994, the Land Board indicated it was not prepared to decide the issue. Instead, it renewed the permit of Greff and two other tour boat operators to land passengers at Na Pali Coast State Park, with a promise to decide the contested case issue before the end of July. If that decision was to go against Greff, the board would then rescind the permit given to Greff on June 9. As Environment Hawai’i reported last month in the [url=/members_archives/archives_more.php?id=1283_0_30_0_C]”Hearings Officer Says CDUA Is Required For Zodiac Boats’ Use of Kaua’i Beach”[/url], the hearings officer completed her report on the case earlier this year, with the recommendation that the board find that a Conservation District Use Permit was indeed required for Greff’s use of Makua Beach.

On May 26, 1994, the Land Board convened in executive session to receive a briefing from its deputy attorney general on the contested case. Inasmuch as the deputy attorney general represented the Department of Land and Natural Resources as a party in the contested case, Harold Bronstein, the attorney for Wai Ola, voiced vigorous objections to the closed briefing, describing it as prohibited ex parte communication. The briefing occurred nonetheless.

By the time the June 9 board meeting rolled around, the matter appeared ready for a decision. But in two separate submittals to the Land Board, the Division of State Parks recommended, first, a deferral of any decision on the hearing officer’s recommendation and, second, a renewal of the three special use permits for boaters landing tours along Na Pali Coast State Park.

This year, however, unlike previous years, the Division of State Parks claimed that the permits it was asking the board to approve had nothing to do with the use of Makua Beach or any other area for passenger loading. As stated in the submittal by the Division of State Parks to the Land Board, these permits concern only “landings along the Na Pali Coast State Park.”

Where’s the Permit?

Bronstein pointed this out to the Land Board. “There’s been an attempt to split the permit…. not an attempt; you have, I assume, issued administratively a commercial permit for Makua Beach for these two boats three times a day.”

There was no challenge to Bronstein’s assertion. However, when Environment Hawai’i met to determine whether in fact Greff has a state permit to use state land at Makua, the most recent permit we could find was a one-year extension of his State Parks Special Use Permit in June 1993. That permit, approved June 10, 1993, was for one year only – a period that has now expired.

According to a spokesperson with the Kaua’i office of the state Division of Boating and Ocean Recreation, no permit has been issued to Greff. That office issues permits only to boaters who hold valid county Special Management Area permits, the spokesperson said. Since no SMA permits have been issued to anyone operating at Makua Beach, the DOBOR spokesperson said, “We haven’t issued any permits” for the use of that area.

Rewriting History

The controversy over Greff’s operations goes back longer than most Land Board members’ tenure. When Greff addressed them on June 9, then, he was able to put a spin on events that is not supported by the record.

For example, Greff told the Land Board on June 9 that he had voluntarily cut the number of boats operating out of Makua Beach, in deference to the wishes of the community. “When the community asked us or voiced opinions that they felt there were too many boats out there,” Greff said, “we immediately came up with a plan to basically relocate our operation to Hanalei in an effort to go along with the community.”

In fact, starting in the late 1980s, the Division of State Parks warned Greff that if he did not cut the number of boats operating out of Makua back to two from the ten he was then operating, State Parks would require him to submit a Conservation District Use Application for the use of Makua Beach. In May 1989, the Land Board extended Greff’s permit for 10 boats but warned that this would be the last year that that number would be approved.

In 1990, when the annual renewal of Greff’s permit came up for Land Board action on June 22, State Parks Administrator Ralston Nagata urged the board to cut back Greff’s boats to two because Greff had not applied for a CDUA covering his expanded activities. The Land Board allowed Greff to continue operating the full contingent of boats for another year, to June of 1991. The board warned him, however, that it would not be inclined to approve his operation of more than five boats the next year.

In October 1990, Greff submitted a CDUA for a five-boat operation. Decision-making on that application was not scheduled until September of that year. Pending the determination on that application, the board again in 1991 authorized Greff to continue operating his ten boats at Makua for the season ending September 30, 1991. After that, Greff was told, he would be allowed no more than two boats.

Only then, and under those circumstances, did Greff reduce the level of his operations at Makua. (Greff’s revised CDUA, by the way, was not approved.)

Volume 5, Number 1 July 1994

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