HomeMy WebLinkAbout2024-03-05 PL-SMA-2023-000046 Center for Biological Diversity & Sierra Club of Hawaii Opposition Testimony (Submitted by Maxx Phillips, Esq.) From: Maxx Phillips
To: W PCtesti mono
Cc: Chuck Flaherty
Subject: Center for Biological Diversity and Sierra Club of Hawar i in strong opposition to Black Sand Beach LLC's
Application For a Special Management Area Permit(PL-SMA-2023-000046)
Date: Tuesday, March 5,2024 4:30:49 PM
Attachments: CBD SCH Testimony Punaluu Development 3 04 2024.pdf
Aloha,
Please accept these attached comments submitted by the Center for Biological Diversity and
Sierra Club of Hawaii in strong opposition to Black Sand Beach LLC's Application For a
Special Management Area Permit(PL-SMA-2023-000046),which would allow for the
development of 225 residential and short stay units,village center,retail uses,rehabilitation and use
of golf courses on an approximately 147 acres portion of a larger 434-acre project site within the
Special Management Area(Punalu`u Resort Development). The subject properties are located within
the extent of the former Sea Mountain at Punalu`u resort area, east(makai)of Hawaii Belt Road in
the vicinity of Ninole Loop Road,Ninole,Wailau,Punalu`u, Ka`u,Hawaii, TMKs: (3)9-5-019:
011, 015, 024, 026, 030, 031, 033, 035; 9-6-001: 001-003, 006, 011-013; 9-6-002: 008, 037, 038,
041, and 053.
Mahalo,
Maxx
Maxx Phillips, Esq.
Hawai'i and Pacific Islands Director, Staff Attorney
Center for Biological Diversity
1188 Bishop Street, Suite 2001
Honolulu, Hawai'i 96813
(808) 284-0007
www.biologicaIdiversity.org
0
CENTER for BIOLOGICAL DIVERSITY Because life is good.
SIERRA CLUB
HAWAI I ISLAND GROUP
March 4, 2024
COUNTY OF HAWAI`I
WINDWARD PLANNING COMMISSION
Dennis Lin, Chair
Louis Daniele III,Vice Chair
Lauren Balog
Wayne De Luz
Matthias Kusch
Chantel Perrin
Thursday,March 7,2024 at 9:00am
Aupuni Center
101 Pauahi Street, Suite 3
Hilo, Hawaii 96720
Re: TESTIMONY IN OPPOSITION TO BLACK SAND BEACH LLC'S
APPLICATION FOR A SPECIAL MANAGEMENT AREA PERMIT,PL-SMA-
2023-000046.
Aloha Chair Lin and Members of the Windward Planning Commission,
Please accept these comments submitted by the Center for Biological Diversity and Sierra Club
of Hawaii in strong opposition to Black Sand Beach LLC's Application For a Special
Management Area Permit(PL-SMA-2023-000046),which would allow for the development of
225 residential and short stay units,village center,retail uses,rehabilitation and use of golf courses
on an approximately 147 acres portion of a larger 434-acre project site within the Special
Management Area (Punalu`u Resort Development). The subject properties are located within the
extent of the former Sea Mountain at Punalu`u resort area, east(makai) of Hawaii Belt Road in the
vicinity of Ninole Loop Road,Ninole, Wailau, Punalu`u, Ka`u, Hawaii, TMKs: (3) 9-5-019: 011,
015, 024, 026, 030, 031, 033, 035; 9-6-001: 001-003, 006, 011-013; 9-6-002: 008, 037, 038, 041,and
053.
The Sierra Club of Hawaii and the Center for Biological Diversity urge the Windward Planning
Commission to deny the Special Management Area(SMA)permit for the proposed Punalu`u
Resort Development.
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Legal Grounds for Denial:
1. Cultural and Historical Preservation:
o Failure to follow past Archaeological Inventory Survey (AIS)recommendations
has resulted in the destruction of over 100 cultural sites. The lack of a burial
treatment plan, preservation plan, cultural monitoring plan, and access plan for
lineal descendants has been a primary contributing factor.
o Hawai`i Administrative Rules (HAR) Chapter 11-200-27 states, in part, "[a]
supplemental statement shall be warranted when the scope of an action has been
substantially increased, when the intensity of environmental impacts will be
increased,when the mitigating measures originally planned are not to be
implemented, or where new circumstances or evidence have brought to light
different or likely increased environmental impacts not previously dealt with."
o The SMA permit application contains an Addendum Archaeological Inventory
Survey (AIS), which states, in part, "[b]y the time of the Tulchin et al. (2006)
survey, more than 100 cultural sites had been destroyed in the coastal portion of
Punalu`u, Wailau, and Ninole ahupua`a and none of the mitigation
recommendations presented in any of the earlier archaeological studies had been
followed through on." Because mitigation recommendations of past AIS have not
been followed,historic and cultural sites, including burials and heiau,have been
destroyed since efforts to develop Punalu`u began 50 years ago.
o All SHPD approvals for the project area should have been completed years ago by
prior developers. Because these were not, irreparable harm to a large number of
historic, cultural, and burial sites which have been destroyed or damaged.
Applicant makes no attempt to specifically identify and discuss the impact of the
destruction of these sites on traditional and customary practices and the cultural
landscape of Punalu`u.
o All SHPD approvals for the project area should have been completed years ago by
prior developers. Because these were not, irreparable harm has been inflicted
upon a large number of historic, cultural, and burial sites. Applicant makes no
attempt to specifically identify and discuss the impact of the destruction of these
sites on traditional and customary practices and the cultural landscape of
Punalu`u.
o The restaurant was built on top of burials. On January 21, 1988 Sam Kaluna and
Chris Bengay identified burials under existing structures at Sea Mountain (page
XII-153 of the 1988 FEIS). This development threatens further desecration of
these burials.
o Further, in what was once a heavily populated area, there are likely unknown
burial sites that will be inadvertently discovered and damaged should the project
be allowed to proceed. Additional consultation with lineal and cultural
descendants and sweeps of the project area should be completed as well. The
county has an affirmative duty to protect these cultural and historic
resources. Approval of the SMA permit at this time would violate that obligation.
The Planning Department's recommendations do not adequately mitigate negative
impacts.
o The Addendum AIS states, "A coordinated effort was started by the Punalu`u
Preservation Committee to make the Punalu`u, Wailau, Ninole coastal area a
Historic District at both the state and federal level. In 2007, Members of Ka`u
Preservation Inc. (formerly Punalu`u Preservation Committee) composed a
nomination form requesting that the coastal area of Punalu`u, Wailau, and Ninole
be added to the National Register of Historic Places (NHRP) (Ka`u Preservation
2007). To date, the area has not been listed in the NHRP."
o The Addendum AIS states that numerous sites on the property met the criteria to
be placed on the Hawaii and National Register of Historic Places.
o For the above state reasons and more, a Supplemental Environmental Impact
Statement(SEIS) is required due to the destruction of cultural sites because
recommended mitigation measures from past AIS have not been implemented.
2. Outdated Wastewater Treatment Plant:
o Past engineering reports have determined the current 50-year-old wastewater
collection system, treatment plant, and disposal system are outdated and is
functioning at a fraction of its original design capacity.
0 The current plant does not treat wastewater to current Department of Health
standards requiring removal of harmful viruses and bacteria.
0 In 2006, the Draft Environmental Impact Statement(DEIS) for development of
this land stated, "The onsite wastewater treatment plant is deteriorated and does
not have sufficient capacity to serve the new load." (DEIS 2006 at page 1-15).
"The Wastewater system is also old and obsolete. The technology is outdated.
New development will require a significant upgrade or a replacement of the entire
system and a requirement to meet newer, more stringent wastewater standards."
(DEIS 2006 at page 3-2). Increasing the density in the area will tax the obsolete
wastewater treatment plant and jeopardize nearshore waters.
0 The SMA permit application says that the Wastewater Treatment Plant is built to
100,000 gallons per day (gpd) capacity,however the 2006 DEIS says that the
facility is built to 50,000 gpd capacity and is in poor repair. (2006 DEIS at page
377).
0 2006 DEIS also says the infiltration system is outdated and requires extensive
repairs.
0 A new wastewater treatment plant is required, which triggers the requirement for
an SEIS before this SMA permit can be approved.
3. Clean Water Act Violation:
o The existing wastewater treatment plant uses infiltration basins, which is the
functional equivalent of a direct discharge of pollutants from a point source into
navigable waters. A permit under the Clean Water Act is required.
o In County of Maui v. Hawai`i Wildlife Fund, the U.S. Supreme Court found that
the Clean Water Act requires a permit when there is a functional equivalent of a
direct discharge of pollutants from a point source into navigable waters. Because
the wastewater treatment plant uses infiltration basins that are the functional
equivalent of a direct discharge from a point source into groundwater that flows
into navigable waters/nearshore marine environment, a Clean Water Act permit is
required. Since the applicant has not applied for this permit and there is, as yet,no
regulatory regime to allow for making an application for the permit in the state of
Hawai`i.
o The lack of a permit application and regulatory regime for such discharges
warrants SMA permit withdrawal or denial.
4. Ecological Diversity and Endangered Species:
o Inadequate addressing of negative impacts on threatened and endangered species,
including hawksbill sea turtles, green sea turtles, Hawaiian monk seals,native
bees, and damselflies.
o For example, Jason Turner, UH Marine Biologist has stated, "Punalu`u coastline
meets the strict criteria needed for the turtles to lay eggs; 1 in 10,000 make it back
to their nest again. Minimal environmental practices and development will affect
and change the life of the sea turtles and all of the species. The need to look at the
areas of Ka`u coastline should be put on a priority list for protection."
o The permit application is lacking in quality information; there are no estimates of
how much the proposed facility will increase the number of visitors using the
proposed development in a day or increase the overall traffic and visitors to the
shoreline area that includes nesting areas for endangered sea turtles. There are no
estimated occupancy rates for the"wellness center" or the "Aspen Institute."
Without this vital information it is impossible to know the true impacts to the
native,threatened, and endangered species of Punalu`u.
o Irrigation of lawn areas surrounding the anchialine ponds will result in elevated
nutrient levels from fertilization, as well as the introduction of pesticides and
herbicides. Development should not be allowed around this endangered habitat.
o The SMA permit and Planning Department recommendations lack sufficient
analysis, information, and measures to protect these vital ecological resources.
5. Shoreline Certification and Climate Change:
o Waiving the requirement for shoreline certification is unjustified, especially given
climate change impacts and the potential for sea-level rise.
o Reconstruction near the anchialine pool poses irreparable harm and demands a
revised certification in light of current conditions.
o The SMA permit application does not adequately consider and mitigate the
inevitable effects of climate change on the project and shoreline. The SMA is
required to consider sea level rise and inundation caused by climate change. In
addition, a tsunami is November 1975 severely damaged the restaurant adjacent to
the anchialine pool. A shoreline certification that complies with law addressing
climate change must be conducted.
6. Cumulative Impacts and Community Development Plan Violations:
o Failure to comply with the Ka`u Community Development Plan and inadequate
consideration of cumulative impacts from population growth and increased
tourism.
o A SEIS is imperative to assess additional impacts on traffic and infrastructure.
In light of the legal deficiencies outlined, and many more detailed extensively by the community,
we respectfully request that this Commission deny the SMA permit application. While the
concerns raised are not exhaustive, we assert that compliance with legal standards is paramount
to protect Hawai`i's unique cultural, historical, and environmental heritage.
Mahalo for this opportunity to provide testimony.
/s/Maxx Phillips
Maxx Phillips, Esq.
Hawaii and Pacific Islands Director, Staff Attorney
Center for Biological Diversity
MPhillipsgbiologicaldiversi . .or
/s/Charles Flaherty
Charles Flaherty, Chair
Sierra Club, Hawaii Island Group
one@aloha.net