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HomeMy WebLinkAboutCOM 0176.100 2006-2008 i COBLENTZ, PATCH, DUFFY one krty Buiklrg Sui[e 700 4,639,.4600 &BASS LLPAn°"`''E'~ ~~~~.~K«~~ tax: 415.989.,663 AT I.AW 9d,11-41,? web: www.cohlm¢law.ran G2gory D. Hendrickson Email: gdh~coblerdzlaw.com May 31, 2007 Honorable Pete Hoffman, Chairperson Hawaii County Council 25 Waupun St. Hilo, Hawaii 96720 Re: TESTIMONY IN OPPOSITION TO BILL 51 DRAFT 3, AN ORDINANCE AMENDING CHAPTER 27, FLOOD CONTROL, HAWAII COUNTY CODE 1983 (2005 EDITION), AS AMENDED, RELATING TO STORMWATER MANAGEMENT Dear :Chairperson Hoffman and Members of the Hawaii County Council As a full-time resident of Kealakekua and as an attorney that has practiced conservation law for the past 10 years, I am writing to express my opposition to amendments recently proffered to Bill 51 by Councilperson Ford. While I have concerns with several provisions in the Bill I am particularly concerned with and have chosen to address with this testimony, language that has been included in Section 12 of the Bill providing for a new subparagraph (g) for Chapter 27, article 4, section 27-20. The new subparagraph states: (gl In Hawaii County. agricultural subdivisions may exist in areas uahill from urban areas and may have severe flooding consequences; therefore. new agricultural subdivisions shall comoly with all reauirements of ArtiGe 4, Section 27-17-26. in that redirected flood channels shall meet base fk>od elevation levels. and aooropriate design and structures shall tte arovided to retain all rainfall up to a 100-year storm event on the agricultural land on which the rainfall feN. My objection to this provision is that (1) it lacks qualitative consideration for the basis of the subdivision triggering the sign cant retention requirement of the provision; (2) it lacks even simple proportionality to balance its significant requirements against the proposed activity; and (3} it has unacceptable ecological implications. Qualitative Issues: Proposed subparagraph (g) requires "retention of all rainfall up to a 100-year stone event on the agricultural land on which the rainfall felP' should any subdivision of agricultural land occur. This provision ignores the fact that there are a variety of reasons for effecting a subdivision of land, some of which would not implicate increased Comm. No. { ~ 0 ~ Ref. To:'hs - ~ Ref. Dvte JUN 1 2007 COBLENTZ, PATCH, DUFFY &BASS LLPe^ruw'r'~ Honorable Pete Hoffman, Chairperson May 31, 2007 Page 2 stormwater concerns. For example, subdivisions can be used to provide separate parcels for agricultural leases, to effect use easements, or to provide right-of-ways over existing roads. In the case of Kealakekua Heritage Ranch, which I represent, we will be n~uired by the federal Forest legacy Program to subdivide out the 9,500-acre portion of the property that wilt be restricted by a conservation easement. This easement would not create development of the eased acreage, but instead would prohibit the development of those acres in perpetuity. However, according to engineer estimates, subparagraph (g) would require, because of the simple act of subdividing, the creation of the equivalent of a 300-acre pit dug between 5 and 10 feet deep. This pit, upon retention of the 100 year flood event, would hold 5 billion pounds of water suspended over the town of Captain Cook. The cost of constructing this pit would exceed $60 million dollars. As I hope is evident, this result would be absurd and likely highly dangerous to public safety. Clearly, under this scenario, the ranch would have little incentive to move forward with its conservation easement. Proportionality: Additionally, there is no rough proportionality in subparagraph (g), meaning that the effect of the provision is the same whether there is one parcel being subdivided or 500 parcels. For several years, I have been working with landowners on Hawaii Island, encouraging them to voluntarily reduce density, to minimize the extent of development, and to conserve as much of the open space on their properties as possible. Under subparagraph (g) there is little incentive to follow such a course. In fact, subparagraph (g) creates a significant disincentive toward limited development since the costs of compliance can only be home by having more units on a property with which to spread the expense. I fear that provisions such as this one will push those who are inclined toward following alight-on-the-land approach, toward much more extractive behavior - to the permanent detriment of everyone. Ecology: Finally, Subparagraph (g) suggests that due to special makai circumstances not defined elsewhere, all agricultural subdivisions should engineer containment of "all rainfall up to a 100-year storm event on the agrcutural land on which the rainfall fell." With this article, development of mauka properties- even at far less than zoning allows- would by regulation be required to choke off all water that falls on the entire mauka portion of an ahupuaa and prevent any of it from ever reaching the natural drainage courses below it, as well as the ocean and those coastal ecosystems for which periodic freshwater input is necessary to the functioning of these systems. This means that if all of the current a-20 zoning on the Kona side were subdivided to add even a single extra parcel each, then tens of thousands of acres of land that currently provide watershed to COBLENTZ, PATCH, DUFFY &BASS LLP"~ Honorable Pete Hoffman, Chairperson May 31, 2007 Page 3 downstream areas would be choked off from free passage. All ephemeral streams would then be eliminated from the entire Kona region. The 100's of millions of gallons of additional infiltration and "aquifer recharge" on these subdivided lands would also be highly unnatural, to the point where there may well be reasonable concerns voiced by these same makai residents that nobody actually knows or can predict where the tens of thousands of acres of retained rainfall is in fact going to end up. In a landscape of lava substrates, the down-slope effects of the containment of such a massive amount of water would be unpredictable. The rain indeed has to go somewhere and although to say "to the acquifer" may sound like a positive thing, it does not guarantee that it will not find its way in sign cant quantities to other properties through the soil, lava tubes, etc. This is to say nothing of the scope stability issues created such mega-scale retention areas, which will introduce massively hydrated (and/or extraordinarily heavy) land on soils above these urban areas. Indeed, subparagraph (g) may create "severe flooding consequences" despite its intention (or at least claim) to be providing that protection. Next Steps: I believe that a considerable amount of investigation needs to be conducted on the wide-reaching effects of the proposed provisions in Bill 51. An ad hoc group should be formed to conduct such investigation and make meaningful recommendations for improvement of the proposed legislation. 1 would be happy to participate with others in such an effort. Very truly yours, V G~~sm~i~'~G~-- Grego~D. Hendrickson GDH i ~ ~