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Home My WebLink AboutCOM 0018.001 1998-2000 Feb. 22, 1999 Council Member Dominic Yagong, Chair R~CE'rtu~, ~dtik- I County Public Works and Parks Committee n,~,. sy--'- I 25 Au uni St. ~ t~""'~~ P Date----~~~ ~ndl _,i,++°" Hilo, Hawaii 96725 _ Thomas Langenstein P.O. Box 1165 Phone/Fax: (808) 323-31 I 1 Captain Cook, Hawaii 96704 Re: Testimony to Proposed Hawaii County Code Chapter 10 Revisions, Identified as Bill 6 Aloha Chairperson Yagong and Council Members: Thank you for the opportunity to review and comment on Proposed Bill 6 seeking to amend Chapter 10 of the Hawaii County Code 1983, Relating to Erosion and Sedimentation Control. Council member Tyler made a copy of this bill available to me. As a founding member of the Kona Community Action Group to Address Flooding, an associate director of the Soil and Water Conservation District Board, Local Working Group, and a property owner who is currently struggling with the impacts of drainage flooding on two separate properties in Kona, I appreciate the opportunity to give input. I represent only myself in this testimony. While I welcome and support many provisions in this bill, the following are my comments as to specific proposed portions of Bi116 for which I have concern. I preface my comments with the following information which was given to me by former Councilman Joe Reynolds and written by County Corporation Counsel Wurdeman: In the United States, the law of liability for the diversion of surface waters is based upon either the common enemy doctrine or the civil law rule. Under the common enemy doctrine, an uphill landowner has an absolute privilege to deal with the "common enemy" (water), while under the civil law rule a person who interferes with the natural flow, so as to cause an invasion of another's interests in the use and enjoyment of his land is liable for the damage caused by the increased flow. Butler v. Bruner, 341 A 2d 735 (RI 1975). In Hawaii, the test for the determination of "hard cases" relating to these two doctrines is stated in Rodrigues v. State 52 Haw 156, 164-65 (1970); Cootev v. Sun Investment 6 Haw App 268 (1984) rev. on other grds. 68 Haw 480 (1986). It states: each possessor of land may interfere with the natural flow of surface waters for the development of his land so long as such interference is not unreasonable under the circumstances of the particular case." The circumstances determining "reasonableness" could include: "the nature and importance of improvements made, the reasonable foreseeableness of the injury, the extent of interference with the water, and the amount of injury done to other landowners compazed to the value of the improvements." $Q~jpygg at 165 n.5. In any hypothetical trial therefore, a jury would be asked whether the danger of flooding could have been forseen by a proper drainage study, and whether the County improvement increased the danger of flooding for the residents. Cootv at 6 Haw. App 283. O/ Comm. No. Continued on Page 2 G G ~E~d Nile No. Ref. To: Pt"~PC- Kef. Date ~ 4 Page 2 Council Public Works and Pazks Committee Bill 6 Feb. 22, 1999 Based on this information, drainage improvements made in azeas of known drainage concern, whether by an individual or by the County, should reasonably have a proper drainage study and mitigation plan done in order to mitigate potential problems created to landowners downstream. Giving exceptions to the County or anyone else to direct water into existing culverts, roadways or historic drainageways without permit, drainage studies, or mitigation plans for any reason is irresponsible and is not in the public interest. § 10-1 Definitions: "Conservation Plan": The County permitting process is designed to assure protection to the public. The permitting process causes the property owner to indemnify the County and all agencies against later liability and recourse due to property improvements that might affect other property owners downstream. I feel that the County accepts unreasonable risk for liability when allowing the Soil and Conservation District Board (who is not necessarily required to adhere to recommendations of the staff of the Natural Resources Conservation Service) to approve "Conservation Plans" in areas of high flood risk. Consequently I propose that the definition for "Conservation Plan"contain the proviso at the end: " Provided that no conservation plan that is within the 100 year flood zone on FEM?y FIRM maps shall be approved." § 10-3-5 Presently, property owners who aze applying for Conservation Plans that have been recently graded prior to application aze not required to produce grading permits in order to be approved by the Soil and Conservation District Board. This presents an obvious loophole which allows avoidance of the protection of the public against illegal grading practices. The staff of the Natural Resources Conservation Service is adequately trained to recognize when this has occurred. In order to address this I propose language such as: 10-3-5(Dl Conservation plans for affected properties which a h'bit indication of exravarinn with a period of five years prior to application for approval bx the Soil and oncPrvation Di trict Boazd shall produce excavation permits in order to be considered for approval Prinr Pxravatinn ~gr~.~g done without ~roper.permits according to this chanter shall be groundc for denial of Conservation Plans." § ] 0-3(6) & (7) The new term "unreasonably" should be defined in this proposed section. Without definition, the term clouds the intent of the drainage code, and leaves this provision open to the whim of chief engineer without rationale. What the chief engineer deems "reasonable" may be entirely different from that of a landowner downstream. This is clearly not in the interest of the public at large nor is it consistent with the Federal and State laws stated above. I suggest that either "unreasonably" be removed, or be defined to mean that improvements are consistent with a proper flood study and mitigation plan done to foresee and address potential community risk. §10-3 (11) & (12) should be removed for the same reason. If the County needs to increase directed water onto another property, even in an emergency, knowing that this will have an impact on another property owner's rights, the county is required by State law to give proper notice and consideration for such a taking of property right. Continued on Page 3 Page 3 Council Public Works and Pazks Committee Bill 6 Feb. 22, 1999 § 10-10(6)(2) As per my statements under definition of "conservation Plan", this section should have language added to: "fifteen thousand square feet, ..."that says: "areas designated as within 100 yeaz flood zone on FEMA FLRM mks or land areas slopgd greater than fifteen p T~P~f Changes to language in § 10-25(c) allowing notification to be verbal only could potentially cause problems later on if the land owner were to dispute that proper notification had actually been given. I recommend that written notification be maintained. Language in specific sections of this bill that I whole heartedly support include: § 10-23(6), § 10-24, § 10-27(6), § 10-28, and § 10-29. These provisions, combined with the language I recommend above, will go a long way in giving communities recourse against non compliant grading practices and increased flood risk due to poor planning. I again thank you for your consideration. If you have any further question or comment please contact me. Sincerely~,~~Z/~•~z "V _ Thomas Langenstein cc: Council Member Curtis Tyler III Council Member Nancy Pisicchio Tomoi Nimori-KCAGAF Mr. Steve Skipper-NRCS