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HomeMy WebLinkAboutCOM 0598.027 2006-2008 Murashige, Laura From: Nancy E. Burns [nebpellc@hawaii.rr.com] Sent: Tuesday, November 06, 2007 5:59 PM To: counciltestimony@co.hawaii.hi.us; phoffmann@co.hawaii.hi.us; kapilago@co.hawaii.hi.us; bford@co.hawaii.hi.us; dikeda@co.hawaii.hi.us; enaeole@co.hawaii.hi.us; jyoshimoto@co.hawaii.hi.us; shiga@co.hawaii.hi.us; dyagong@co.hawaii.hi.us; jjaco@co.hawaii.hi. us Cc: Bruce McClure; Galen Kuba Subject: Testimony Regarding Bill 151 Attachments: November 7 2007 Testimony Bill 151.pdf; HISTORICAL EVOLUTION OF SURFACE WATER DRAINAGE LAW (3).pdf; Kona Community Meeting Transcript.pdf November 7 2007 HISTORICAL Kona Community Testimony Bill... )LOTION OF SURFA Meeting Transcr... Aloha, The attached testimony on Bill 151 is from my self and my colleague David Ross. Thank you in advance for your consideration of the material presented in the testimony. Please do not hesitate to call if you have any questions. Nancy Nancy E. Burns P.E., LLC 73-1987 Hao Street Kailua Kona, HI 96790 Tel. (808) 325-3182 Eax (808) 325-1065 Comm. No. ~9 27 Ref. To: ~ 1 ~tef. Date NOV ? 1 November 6, 2007 Honorable Pete Hoffinann, Chairman Hawaii County Council 333 Kilauea Avenue Hilo, Hawaii 96720 Subject: BilI51/151 Dear Chaimran Hoffman and Members of the Hawaii County Council, The following is our testimony regarding Bill 151 and our disappoirttment at negative statements made about the professional community by Council Member Ford over the past several months. We have attached a transcript of the October 9, 200? Kona Community Meeting in which Council Member Ford made statements that are technically inaccurate and appear to be prejudicial and insrilting to all of us in the technical community who have been working diligently toward creating sound legislation. Her public statement that architects and engineers don't want to do anything that costs more money is not only false but implies our motives are less than honorable. This is only one of the false and defamatory statements she Iras made regarding those who oppose her legislation. From her statements it appears that she may have significant prejudice against citizens employed in the engineering, architectural and development industries. We believe it is inappropriate and counter-productive to display these prejudices in public forums. It is reasonable to expect that public officials focus on factual information when presenting their proposals. It is not appropriate to disparage those who have opposing views. An example of the technical inaccuracies of Council Member Ford's presentation is the statement "We do not have a storm drainage system in this county. Our roads arc the storm drainage system." The fact is that this county does have drainage systems consisting of catch basins, drywalls end seepage pits which dispose of the increase in nmoff due to development. As civil engineers who have been practicing hydrology for many years in I-Iawaii as well as other parts of the couatry, we believe that this system is far superior to the systems on the mainland that Council Member Ford refereed to. It is common for developments on this island to design for disposal of between 3.5 and 6 inches of rainfall per hour not the 1 inch that Council Member Ford referred to in various public meetings. Tlris conservative approach is a result of the drainage methodology employed on this island. Some systems are designed to dispose of quantities of runoff in excess of the NRCS 100-year 24-hour storm. The Hawaii Society of Professional Engineers (HSPE) has volunteered to provide Council Member Ford background and information on hydrology aad drainage but to date she has declined to take us up on the offer. Although to the average person she may appear to be well versed on drainage matters, much of her understanding is technically inaccurate as demonstrated by a number of her statements and public presentations. At past Council meetings Council Member Ford made statements in which she attributed her proposed amendment to elevate all buildings across the island one foot to recommendations found in a FEMA publication. We can find no recommendation to elevate buildings is done X , in the referenced FEMA document. In our opinion, Council Member Ford has misinterpreted this and other FEMA publications and as a result may have misled her fellow Council Members and the public. We in the professional community work with FEMA a~ drainage design on a regular basis. During our nrview of her public statements we have found many of them to be inaccurate and misleading. We recommend verification of the accuracy of statements supporting the amendments to Bill 151. For your reference we have attached the Reasonable Use Rule (see attached Historical Evolution of Surface Water Drainage Law). We understand that Hawaii courts use this doctrine to settle drainage disputes. All property owners are allowed to pass water from their upstream neighbors to their downstream neighbors. It is impossible and nnnan,ral to stop the flow of water. Property owners must design their grading and improvements so that they do not cause undue harm to either their upstream or downstream neighbors or themselves. The County Storm Drainage Standards mandate that increases in runoff caused by impervious surfaces be disposed of on-site. To date the existing County Storm Drainage Standards appear to do an excellent job of mitigating flooding problems. Our drainage standards ere conservative due to our unique drainage system design and methodology. Proposing changes to these storm drainage standards without any information or background as to whether our corneal standards work and with no regard to costs and benefits to taxpayers and consumers is at best irresponsible. Contrary to what has been presented to the public, the increase in drainage infrastructure costs will not uhimately be home by developers. All additional costs will be passed onto homeowners, consumers and taxpayers. The technical community is opposed to the flawed process of lawmaking which does not allow adequate review and inclusion of technical expertise and evaluation. Before the Council implements laws that increase costs for communities across the island, whether or not there is a flooding problem, we ask you to research whether the existing standards and codes when applied appropriately provide adequate protection and mitigation. This will not be a difficult task, as there are many subdivisions throughout the island designed to the current standards. We need to do our homework and research fast and then pass laws based on sound infomaation. The azchitecturai and engineering communities have worked closely with representatives of the County adminishation and Council and FEMA to amend Bi1151 to add protection to those in flood prone areas without denying property owners reasonable use of their land or unnecessarily burdening taxpayers. Our 8-hour working session with County engineers resulted in a recommendation to include a 50' buffer zone along documented drainage ways. This helped address a problem Bill 151 posed to the handicapped community due to the proposed 1-foot mandatory elevation of buildings above grade throughout the island. We ask that you support our efforts. Please pass Bill 51 and defer the amendments proposed in Bill 151 until the proper evaluation showing scientific and economic merit has been completed. We aze sure that Council Members want to strive to achieve open and honest government and avoid misrepresenting facts in public forums. In order to achieve this goal, we need to avoid making public statements about members of the Big Lsland community which may appear to be prejudicial. To date, the ugly atmosphere in which we have operated is evidence that we Gave fallen short of this goal. We strongly believe that a respectfirl working relationship between professionals, public officials, County Council Members and other members of otu community is critical to serving our island in the best way possible. Our last and perhaps most important issue relates to our use of valuable public and private rrsourczs. The convoluted governnneat processing of Bill 51/151 has wasted valuable public sod private resources. We urge the Council to develop procedures in avoid this from happening in the future. Technical supporting data and dogrmeatstion should be required for specific amendments. Also, in the future, this will help avoid the vast waste of public and private time, money arxi resources that has resulted fi+om the uodoc~ented, nosupported floor amendments thai kept appearing at the last minute during the development of Bill 51/151. IY wouid also roquire Council Ma®bers W 16mk through Their proposals end idass before presarting them publically. This is required of the design and development commtmity and we see m reason why our Coumy Council should be held a louver standard. Council Members should be required to provide written doamon far all amendments 1p technical codes inclndirtg an analysis of the social, economic, cultural a~ environl impede of th~r proposed as appropriate. This docammentalion should be made public well in advance of the council meeting so proper public cwt can be given. Sponsors of proposed legislation slroald be held accou~ble for their legislation and should provide srrQpmting doamo~tion that explains the impacts of such legislation. This will save substantial time and resouros spent trying to correct flawed legislation. In summary, we recommend the following standard practices for good legislative processes: 1. Provide adequate time for public review and response m proposed legislation. 2. Provide thorough research and supporting data based on wnsultation with qualified experts. 3. Provide an assessmerrt of positive and ~gative impacts resulting from the proposed legislation. 4. Prior to submitting proposed legislation, inform and engage the community that may be impacted. Work cooperatively with interested parties to provide rn~sponses to their concerns. 5. Limit floor amendments to miter edits. Following these practices will achieve better legislation and more open, equitable, and responsible govemmaat. We want to acimowledge the conTribrrtioa of others in profes~onai community who helped develop the principlr~ presented in this testimo~. Thank you for your consideration sincerely, ~~U~_ 1 , Nancy E. Bums, P.E. David M. Ross, P.E. ce Brucc McClure, Director, Department of ]?attic Works Galen Kuba, Division Head, Department of 1?uhlic Works, Engineering Division Attachments: Transcript Of The October 9, 2007 Koss Community Meeting ifrstorical Evohttioa of Surface Water Drainage Law Bill 151 Flood Management -Brenda Ford Presentation -Transcription Kona Community Meeting - 700PM -October 9, 2007 -State Pavilion -Old Airport Page 1 of 3 I'm here to talk about the Post Flood Control laws. Let me start by saying that the original bill, the very first bill, that was produced, was produced by Public Works. And that was to become compliant with the National Flood Insurance Program in order to keep all types of disaster insurance from FEMA in effect, we have to come up to these minimum standards on flood plain management. And so, Mr. McClure's department sent the first bill over to the Council. And when I looked at the bill, I did not think the bill went far enough because I'm very well aware of all of the flooding problems that we have in the County. And I made REALLY, REALLY drastic changes to that bill. I wanted a hundred year storm event to be the standard. I wanted water retention on everybody's property to prevent the flooding. And I couldn't get that past the Council so I drastically compromised and brought the standazd down to a 25- year standard, took out a lot of things that we can put into other ordinances, for instance grubbing and grading, storm water management, when we get one of those, and went for what I consider [o be the very minimum. And in that minimum was a 1 ft elevation increase all over the island. In the flood plains that are regulated by FEMA. I've wanted to raise the elevation 1 fr above what they call the base flood elevation, which is the known height of water as it comes rushing down that stream. On the shoreline, I wanted that I ft elevation there for an extra safety factor. Then on the rest of the island, about 98% is considered zone X, of 2 flavors. Shaded and un- shaded. The definition is, one of them is minimal flood. Minimal means anything from 1 to12 inches. That's what they consider an X zone. It doesn't mean you're not going to flood. It means you're susceptible to a 1 to 12 inch flood factor. The second X zone is a moderate flooding. One (1) to three (3) feet of water. To me 1-3 fr of water is a lot of water coming through your property, and because of that, I wanted to raise the elevation to 1 foot. I'm having difficulty getting that bill through the Council I had 4 strong votes. People in the West Side who were very conscious about what flooding does and how dangerous it is. And the other side of the island could claim that they don't have flooding issues. They claim there's no flooding in Hamakua. There no flooding in Hilo. There's no flooding in Puna. There's no flooding. And we all know that's not the case because we have flooding all over this island. Just matters where the storm is going to hit. The other misconception that we've got going on in the County is that there's only one reason for flooding, and that's inappropriate or illegal grubbing and grading. That is not the only reason we have flooding. We have flooding because it rains a lot in this tropical area. We get tropical storms. Fortunately we haven't had a hurricane in at least in recorded history, but we do get tropical storms, we got what, 36" Bill 151 Flood Management -Brenda Ford Presentation -Transcription Kona Community Meeting - 700PM -October 9, 2007 -State Pavilion -Old Airport Page 2 of 3 in 24 hours over in the Puna, Hilo area, in 2000 I think it was. So, I don't know why they think it doesn't flood in Hilo, but there are people who believe that, or want to believe that. My greatest opposition on this bill is a group of engineers and architects who believe that we shouldn't do anything that's going to cost any more money, especially to any developers who are building these large subdivisions or commercial developments. I personally don't agree with that. You've heard Mr. Edgar talk about the flooding that's going on in his farm. I personally went out to see that flood. Mr. Pilago was with me, and that flooding exposed the entire root mats of the coffee trees. I don't know how much they lost that year in production but it's probably serious. We're getting flooding on our farm areas were going to have flooding. We've had flooding off of Lako St. There's some of the laterals off of Lako St., where they have 3 ft of water going through the house, because the uphill property had a wall, and it ponded, and it overflowed, into their house and down the street to the next one. We do not have a storm drainage system any place in this county. Our roads are the storm drainage system. And what looks like storm drains for those of us who come from other parts of the country, those are dry wells. The ls` inch of rain that falls will be collected in those dry wells, up to a ]0- year storm event. And after that, it goes down the street and into someone else's property. Repeatedly, [ have asked this group of engineers and architects, when you build an impervious surface, where there's a roof, sidewalk, road, driveway, whatever, that disallows water to percolate into the soil, what are you going to do with the water that now can't percolate in? And to date I have not had an answer. Because they don't want to answer that question of what to do with that water. They want to pretend like it's just going to vanish. But its not vanishing, it's going onto the neighbor's property or into our roads for us to have to deal with. This same group of architects and engineers went to the mayor presented him with their concerns. And I should have brought the paper with me, but in writing their solution to the flooding, whatever cause its coming from, was to have the tax payers, I'd like to quote this to you "Regional flood control projects will be an effective use of tax dollars (that's your money) and will solve flooding problems on a larger scale." While that's true, I personally resent sticking the taxpayer with the flood control projects, we should not be paying for something that is developer generated. That's my position. So I have been pushing the bill, we started with Bill 51, and after a multitude of changes, it got so cumbersome, that I've put in a new bill, 151. It's just a fluke that the numbers came out like that. And Bill 151 Flood Management -Brenda Ford Presentation -Transcription Kona Community Meeting - 700PM -October 9, 2007 -State Pavilion -Old Airport Page 3 of 3 I've confinued to have, even despite the fact that I've compromised dramatically on this bill, I'm still getting massive amounts of opposition from the development community. All I can say is that we need to support higher standards. The NFIP, National Flood lnsurance Program, has minimum standards to keep is in their hazard insurance program by FEMA. And they have recommendations, and I have probably 12 inches of material that I have from FEMA that recommends, certainly in the A-V zones, which is the FEMA flood ways and flood planes and on the coast, that we should raise the elevation at least 1 ft above their required minimums. My position is in the X zones, which are the rest of the island. We need to raise those elevations on new developments, new subdivisions, the extra foot. Unfortunately, I believe that I have talked to the Mayor, this is Tuesday, I talked to him on Monday, and he's not going to be very supportive of raising the elevations in the X zones, in certain areas of the island. And I will be working with Mr. McClure and his staff to see if we can come up with some kind of formula or some way to assist those areas that the Mayor believes never flood. But I'm telling you that we have a big problem in this County. And every new house, every new business, every new impervious surface that's put down are going to cause additional flooding. And we are not going to get less, it's going to be more. And there's not enough money in any of our pockets to pay for massive flood control projects that are going to be required to take care of development generated run off. We need to start doing this on a house-by-house basis. There are places on the mainland that say you have to contain a 100% of the rainfall on your property, a 100%. We aren't requiring that. So I'm open to questions and I see some of those same engineers and architects in the audience. And I'll be glad to answer any questions, but that's the position I have taken. I believe that we need to do a whole lot more. FEMA supports bill 151 because they know it's going to cause less damage. And they're supporting it even in the X zones, despite what everyone else is saying. And the NFIP has said that both bills meet the minimum standazds. So the minimum standards are going to be met no matter what. But my bill has higher standards for more protection. This is a public safety issue, and we need to do this public safety. We need our critical services, fire, police, hospitals. These are all new things. We don't have to go back and lift anything up. But all the new facilities that are critical facilities and that help with any type of public safety, need to be meeting a much higher standard, even in the one I'm requiring or asking to have in this bill to be passed. Historical Evolution of Surface Water Drainaee Law Surface drainage is a complex subject and rights and responsibilities of land owners with respect to surface drainage have been viewed from different perspectives over the years. We believe it is important for the Council to understand the principles and theories involved in drainage law in order to properly evaluate the amendments that have been proposed to Chapter 27. We are not an attorneys and recommend that the Council verify the information presented below for accuracy and content. It is our understanding that there aze three basic doctrines which have been historically applied to drainage disputes in the United States: The Common Enemy Doctrine, Civil Law Rule, and the Rule of Reasonable Use. The Common Enemy Doctrine The original common enemy doctrine provided that a landowner had an indisputable right to fight off surface waters as necessary without being required to take into account the consequences to other land owners, who also had the right and responsibility to protect themselves as best they could. Surface water was thus regarded as a common enemy which each property owner could fight off or control by any means including, detention, channelization, diversion, or other methods. There was no cause of action even if some injury occurred to an adjoining parcel. It is my understanding that most government agencies have modified this by implementing either the Civil Law Rule or the Reasonable Use Rule doctrines. Civil Law Rule The civil law rule mandates that a lower land owner must accept the surface water which naturally drains onto his land but the upper land owner does not have the right to change the natural system of drainage to increase the burden on the lower parcel. The civil rule law created problems with allowing development because virtually all development has a tendency to change the flow either in quantity or velocity. Thus according to the civil law rule, if the quantity or velocity of water flow were changed, the natural flow on the downstream property would be changed and would be in violation of the civil law rule. Reasonable Use Rule The reasonable use rule was developed as an attempt by the courts to balance the hazdship created in attempting to control surface waters and the relationship between the competing rights/liabilities of adjoining land owners. The rule provides flexibility in avoiding the harsh results of applying both the common enemy doctrine and the civil law rule to vazious land use situations. Under the reasonable use rule, a property owner can legally make reasonable use of land, even though the flow of surface waters is altered and causes some harm to others. Liability occurs when the property owners' harmful interference with the flow of surface water is "unreasonable". Reasonableness is determined by three basis questions: (1) was there reasonable necessity for the property owner to alter the drainage to make use of his land? (2) was the alteration done in a reasonable manner? (3) does the utility of the landowner's conduct reasonably outweigh the gravity of harm to others? It is our understanding that the State of Hawaii has adopted Reasonable Use Rule doctrine in which landowners will not be liable so long as the resulting interference with the plaintiffls land is not unreasonable. If Chapter 27 is going to include storm water runoff regulations, we request that it be written so that it is made very clear that the reasonable use rule is the governing principle that will be used when reviewing and approving land development and drainage design.