HomeMy WebLinkAbout2021-04-28 EMC testimony - (04-23) Demoruelle, Sandra
Oral Testimony to County of Hawaii Environmental Management
Commission
April 28, 2021 Meeting
Aloha Chair Adams and Commission Members,
I will not belabor how the Director’s Report reinforces my view that the Ka’u LCC
Closure engineering consultants have repeatedly failed to fulfill their contracts, but the
observation that Pahala construction costs climbed “because WWTP site has steeper
slopes than predicted” confirms that no engineering consultant VISITED the actual site
or ever thought to look at a USGS flood zone topographic map.
But what I want to shed light on this morning is these consultants’ lack of
knowledge of the Endangered Species Act (ESA) that will place the current Naalehu
project in violation of Section 9 of the ESA leading to potential expensive civil and
criminal penalties.
While DEM has shown a great respect for Cultural laws, what they call Section
106, AIS, SHPD and SHPO, there is a definite lack of understanding of the nature of
Section 9 “take” and why neither the County nor the State DOH are eligible for Section
7 consultation.
Per information in the attached ESA Basics, the “Section 7 by DOH pending final
area of potential effect for all three CWSRF projects” (bottom of page 6 Director’s
Report) is only available to Federal agencies, like EPA on the Pahala project. As
everyone can read for themselves in ESA Basics, the County and State agencies – DEM
and DOH – HAVE to do a Section 10 Habitat Conservation Plan for the Hawaiian hoary
bats, nenes and other assorted endangered species found in the Naalehu PONC
conservation area.
Just like the consultant that produced the Pahala geotechnical report showing
“lava tubes” at the construction site a year later than they had agreed to in their
contract, AECOS has promised that the Naalehu project can have a Section 7 ESA
consult, which is simply in violation of what the law actually requires.
But the good news is that citizens winning ESA suits can be awarded the fines
collected from DEM, so there will be incentive to environmentalists to use the Courts
to teach the County the difference between Section 10 and Section 7 ESA compliance.
Again – thank you for your service to the community! Sandra Demoruelle