Hawaiʻi Island Group Report

Troubled Waters by Steve Holmes

In a huge victory for the environment, the U.S. Supreme Court recently struck down arguments by Maui County and the Trump Administration that would have created a giant loophole for polluters. The court ruled that you can’t use groundwater that conveys to the ocean to circumvent the Clean Water Act. Read more here.

Sadly, the Hawaiʻi Department of Health appears to be still be struggling with the need to assess discharges to groundwater according to both the Safe Drinking Water Act and the Clean Water Act. In the past, this failure to require compliance with the Clean Water Act has given polluters encouragement to pollute by placing injection wells or sumps near the coast, including county wastewater plants on Hawaiʻi Island. Hopefully we can get the Health Department to change their regulatory approach as they are relying on a Hawaiʻi Attorney General’s opinion that conflicts with the Supreme Court view.

The Hu Honua biomass plant is an example of misuse of the Underground Injection Control (UIC) program to avoid the Clean Water Act. The facility has injection wells right next to the Hāmākua Coast sea cliffs. Life of the Land is challenging this before the Public Utilities Commission and has already won one round before the Hawaiʻi Supreme Court on the language in the Hawaiʻi Constitution ensuring a safe and healthful environment. The recent decision by the U.S. Supreme Court gives Life of the Land or any other community group grounds to challenge, as the Hawaiʻi Department of Health is ignoring the Clean Water Act in granting permits.

There are injection wells all over the island that were granted by the Health Department under the UIC program where it is highly likely that pollutants are reaching the ocean:

• the Mauna Lani Resort discharges wastewater to injection wells not far from their beaches while using potable water for irrigation,

• the County Honokaʻa wastewater plant uses injection wells right next to sea cliffs, and

• at Kahaluʻu Bay, a popular surfing and snorkeling spot, the Health Department granted a UIC permit for condo wastewater discharges right across the street from the water, while a sewer line that could have been used instead is about 100 yards away.

Just awful, but this is where we are at. Those charged with protecting our coastal waters are putting public health and the marine environment at risk by allowing these discharges. There is little wonder why there are federally-listed impaired water bodies around the state. This pollution needs to end and this recent court victory sets us on a good path to doing that.

Please try to do verbal or email testimony when the issue comes before County Council. We expect this in June or July, since the County Environmental Management Commission plans to send the council a letter urging them to enforce the Kealakehe wastewater plant to stop violating the Clean Water Act.

Aquarium EIS Rejected by Rob Culbertson

In an unexpected rebuke to the aquarium trade, the State Board of Land and Natural Resources rejected the Final Environmental Impact Statement submitted by the Pet Industry Joint Advisory Council based in Alexandria, Virginia. The EIS had been funded and submitted on behalf of ten aquarium fish collectors previously working with special permits in the West Hawaiʻi Fishery Management Area. But the flood of thoughtful written comments and verbal public testimony may have made the difference before the Board of Land and Natural Resources (BLNR), chaired by Suzanne Case.

Despite the recommendation by the Department of Land and Natural Resources Division of Aquatic Resources staff to accept the document as adequate for policy making purposes, questions from Chair Case and the single Hawaiʻi Island representative Christopher Yuen, soon began to unravel lapses and deficiencies promoted by hired consultant Stantec and attending counsel for the unidentified collectors.

Then the veil of secrecy surrounding the identity of the applicants was abruptly punctured when a call from For the Fishes advocate Rene Umberger quickly ran through 14 names that were recognizable as local collectors. The names included three who face charges for illegal collecting, in a case that was to be taken up in the same meeting as the EIS. That case, however, was deferred due to legal proceedings and any talk about it within this hearing was supposed to be suppressed. But, with Umberger’s call, the claims of a clean and responsible industry were discredited by numerous accounts of poachers acting with impunity. With those rare and difficult-to-execute enforcement actions amounting to nothing more than an empty threat in the face of demand-driven profits, the recent bust made it clear that too many collectors ignore the rule of law.

Several traditional fishers and practitioners made plain that industrial scale extraction is, still to this day, taking place in front of their homes, robbing them of their customary sustenance. It remains a blight that no promise of regulation or enforcement has ever remedied.

Inevitably, opposing legal teams took pot shots but the Board’s questions and cautious demeanor clearly indicated their institutional discomfort for continuing prolonged battles in the courts.

Finally, another testifier Mr. Charlie Fasano, self-identified as a reef biologist and coral reef restoration expert, made a memorable impression comparing the health of our reefs with the current human plight of suffering with COVID-19. He emphasized the poor condition of our reefs after experiencing sequential bleaching events, struggling to recover now even while facing the unnecessary insult and loss of the very best tools for recovery—the reef fish.

BLNR Chair Suzanne Case said "The fact that there are really no limits on the number of fish that can be taken is very, very challenging. I don’t know how you can analyze impacts when you don’t know how many fish will be taken out. We don’t have the data available for statistical analysis of the impact of removing a certain amount of fish from the reef—of species that are very low numbers already." Case noted, "The unanimous vote clearly reflects the Board’s view that the aquarium fishers’ proposal, without meaningful limits on future catch, without enough attention to our highly depleted stocks like pākuʻikuʻi (Achilles Tang) and other low number species, and without adequate analysis of the near-future effects of climate change, ocean warming and coral bleaching on our reefs, did not adequately disclose the potential of environmental impacts of the ten proposed permits."

Mauna Kea Update by Debbie Ward

Several proposals have been offered by the University of Hawaiʻi in recent weeks. Discussion by the Board of Regents of a new management structure to combine the Mauna Kea Support Services (run by Institute for Astronomy at UH Mānoa) and Office of Mauna Kea Management (run by UH Hilo) was deferred until its June meeting. Four proposals to reconsider the entire management of Mauna Kea as part of a General Lease extension are also being evaluated.

Meanwhile, the Department of Land and Natural Resources will conduct an evaluation of the Comprehensive Management Plan, to be conducted by none other than Dawn Chang, who authored the original plan in 2009. The Comprehensive Management Plan was contested by the Sierra Club and others for its inadequacy. The Intermediate Court of Appeals deemed the challenge unripe, and called it “a plan to plan”. Deficiencies in the Comprehensive Management Plan and its sub-plans have led to court challenges.

There is also a lawsuit pending before the Hawaiʻi Intermediate Court of Appeals that raises the question whether the Thirty Meter Telescope International Observatory is required to post a bond or other surety in the amount of the estimated construction cost of the Thirty Meter Telescope (TMT). The bond would protect the State and the university from a possible inability of the Thirty Meter Telescope International Observatory to either complete construction of the TMT or the decommissioning of the TMT.

The lawsuit argues that when the Board of Land and Natural Resources issued its Notice to Proceed authorizing the Thirty Meter Telescope International Observatory to initiate construction of the TMT, that decision triggered a requirement that the Board of Land and Natural Resources compel the Thirty Meter Telescope International Observatory to file the surety. The plaintiffs were petitioners in the contested case challenging the permit for the TMT.

The circuit court dismissed the plaintiffs’ request for a ruling ordering the Board of Land and Natural Resources to compel the Thirty Meter Telescope International Observatory to file the surety. The plaintiffs’ appeal of that dismissal is pending.

The court also found that the plaintiffs could request the Board of Land and Natural Resources to order the posting of the surety. Plaintiffs also have such a petition pending before the board.

Hawaiʻi Island Outings by Diane Ware

Due to the COVID-19 pandemic and subsequent safety concerns, our Group has decided not to schedule any outings for the next quarter. However, please check our website in case Group outings are able to be conducted safely. We wish all a safe and healthy summer.

Three years ago the Hawaiʻi Island Group was contacted by Stew Maps to participate in their project. As a result, our service projects for North Kona and South Kohala districts were mapped and added to their database. This is a long-term project with more districts to come. There are also 2 districts on Oʻahu that have been mapped. At the time, our service work for The Nature Conservancy of Hawaiʻi at Kīholo Bay, for the Departmet of Land and Natural Resources at Puʻuwaʻawaʻa and the Waikōloa Dry Forest in South Kohala was included. We have more recently joined Hui Aloha Kīholo to work at the Kīholo State Park area.

The Stewardship Mapping & Assessment Project collects survey data to create a public online stewardship database and map of community, civic and other organizations that mālama ʻāina and kai. This database can identify gaps and overlaps, and create resources to strengthen capacity to mālama ʻāina. It can also serve as a networking tool for organizations, volunteers and agencies. The project was launched ten years ago in New York City and has since been applied in a range of cities including Chicago, Seattle, Philadelphia, Los Angeles and internationally in France, Colombia, and China.

Last year, the project focused on West Hawaiʻi (North Kona and South Kohala districts) where 129 groups and agencies participated. Preliminary analyses show that the community-based network of stewardship is profound—extending and crosscutting from mauka to makai, including formal, informal, large and small groups. Not all are solely focused on stewardship per se, some are canoe clubs, schools, faith-based organizations, neighbors, and ʻohana, yet they all contribute to the care of the land. The full results will be shared in the coming year.

The Hawaiʻi Island Group is excited to be a part of this project as it moves forward.