HomeMy WebLinkAbout2024-03-05 PL-SMA-2023-000046 Deborah Ward Opposition Testimony From: Debbie Ward
To: W PCtesti mony
Subject: Windward Planning Commission testimony for March 7,2024 meeting
Date: Tuesday, March 5,2024 8:51:54 AM
Attachments: Punaluu SMA Ward comments 2024.docx
I would also like the opportunity to testify in person.
Deborah Ward
WPCtestimony(D-hawaiicounty.gov
March 3, 2024
Aloha, Commission members,
My name is Deborah Ward. I live in Mountain View, and I love to spend time enjoying rural
areas to the south, including Punalu'u. I have attended several meetings over the years
regarding multiple failed attempts to build a resort development in this historic and treasured
enclave. C Brewer tried, Sea Mountain tried, and here we are again. The old restaurant placed
too close to the shoreline, while very pleasant, was destroyed by a tsunami, and now it lies in
ruins, a hazard to curious explorers, the anchialine pond, and to the wildlife. It is unsightly,
collapsing, and is poisoning the land with lead and arsenic.
Promises, promises!
The most recent meetings I attended were in 2021 and 2022, with the new landowner, Eva Liu.
At each meeting the community expressed the desire to have the derelict buildings and
infrastructure repaired or removed. They were told that the repairs would take place (Phase 1)
before any new plans were initiated. In 2021 "Mr, Quon )project developer) said one priority
that came out of the meetings was to improve what's already there before building anything
new. As expressed by many in the community, first start to fix what has been severely neglected
over many decades as we start to talk about the future;' he said. Quon said Black Sand Beach,
LLC hopes to secure immediately the necessary county approvals to allow for the repair and
maintenance of those existing infrastructures and facilities"
https:Hbigislandnow.com/2021/12/26/a-vision-for-punaIu'u-black-sand-beach-developer-vows-
community-led-project-for-neglected-area/
SMA Minor permit (PL-SMM-2022-000015) issued March 9, 2022, promised repairs to sewer
lines, fire hydrants, potable water lines, roadway repair, clearing of vegetation, and repair of
irrigation system.
Virtually none of the exempt activities in that expiring SMA were actually completed, hence a
new SMA application, this time with development requests. Mr Quon reported that there was
some restoration of parking away from the beach, the cleaning up of hazards at abandoned
buildings, the blocking of parking along the road to the beach, repair of a walking bridge for
pedestrians and overall increased landscape management. The promised repair of sewer
lines, fire hydrants, potable water lines, and repair of irrigation system has apparently never
happened, despite the promises that these would be repaired before any new developments
would be proposed. Further, the abandoned restaurant by the pond has continued to
deteriorate, creating an attractive nuisance adjacent to the popular beach. If there were
building permits issued for the development aspects of the 2022 SMA, we find no evidence of
them. We have toured the area in question with Mr Arai, and we did observe vegetation
spraying and clearing of the debris in the Aspen Institute building.
D Ward Comments 1
Further SMA approval should be deferred until issues of life and limb are rectified, such as
water, fire hydrants, waste treatment. Assure access for traditional cultural practices, address
shoreline changes and certification, crowd management and safety. If and when further SMA
projects are approved, specific and enforceable conditions, timelines, required permits and
mitigation measures must be provided in detail.
Multiple SMA applications for a large multiphase project are inconsistent with planning policy
and law. Some SMA projects remain incomplete after 2-20 years, and degree of completion of
previously approved SMA(s) is not documented in the current application.
1: Proximity of proposed development to the shoreline.
Shoreline certification (Waived by PD Zendo Kern in previous SMA)
In this case the shoreline certification is fifty years old, and since that certification, sea level
changes, earthquake, and shoreline subsidence, and climate change would indicate that the fifty
year-old certification may be inaccurate. To site structures near the shoreline and near
documented flood hazards without an understanding of the risks from storm surge and known
changes to the extent of the black sand beach would be irresponsible.
https : //dlnr.hawaii .gov/ld/files/2013/07/Chl3-222—Amend—Compil—
Stand—Revl .pdf
§13-222-11 Validity of certified shoreline . (a)
Certification of the shoreline shall be valid for a
period no longer than twelve months from the date of
certification,
Pursuant to Planning Commission (PC) Rule 9-10(b)(5) &(11), and in order for the Planning
Director to accurately evaluate whether the proposed action will have a substantial adverse
effect, pursuant to PC Rule 9-4(e)(4), the Director shall require that SMA Use Permit
Assessment and Use Permit applications include all of the information necessary to assess the
proposed activity's impacts in the Special Management Area, including but not limited to:
An assessment of impacts on hazard risk, including flooding, tsunami, and coastal erosion
and/or sea level rise over the life of the development(PC Rule 9-10(h)(9));
The 2006 DEIS notes: Flood: The property includes coastal areas in Zones AE and VE which
represent areas with potential for coastal flooding. Mauka areas designated in Zone X were
determined to be outside the 500-year floodplain.
Hurricane: The Punalu'u coast is potentially susceptible to hazards from Pacific hurricanes
generated off the Coast of Mexico. Based on historical tracks and computer simulations
Hawaii County is at the greatest risk of impact from hurricanes (Hwang,page 43). Hurricane
hazards include drainage from high winds in excess of 74 mph and flooding due to heavy
D Ward Comments 2
rainfall and storm surge. Storm surge is the rise in sea level due to low barometric pressure
and the pile up of water due to persistent wind in the forward motion of the storm.These
conditions can be exacerbated by high tide and mesoscale eddies in the Central Pacific.The
coastal bathymetry off Punalu'u shows no fringing reefs that could mitigate some of the
impacts of powerful hurricanes.
Tsunami: The Federal Emergency Management Agency Flood Insurance Rate Map indicates
areas of potential tsunami inundation on the coastal areas of the property. Due to its
historic exposure to tsunami hazards,risk of future tsunami inundation is significant in the
coastal zone.
Lava Flows: The project area is within Zone 3,indicating a moderate to severe hazard.The
project site is located in lava flow hazard zone"T'with"1"posing the greatest hazard and
"T'posing the least.
Earthquakes: The entire island of Hawai'i is susceptible to earthquakes originating in fault
zones under and adjacent to the island.Under the uniform building code seismic provisions,
the Zone 4 area could experience severe seismic activity between .30 and .40 of the earth's
gravitational acceleration (g-forces) causing major damage to poorly designed or built
structures.
2: Proposed development near shoreline not appropriate
The fish market, restaurant and restrooms planned across from the old restaurant and the new
"Welcome Center" are approximately 200' from the shoreline. This ignores the policies outlined
in the Kau Community Development Plan (HAWAII COUNTY ORDINANCE 2017-66).
According to the Kau Community Development Plan, "A large number of CDP objectives and
strategies intersect at Punalu`u, which has a rich ecological, historical, and cultural legacy and is
dear to the hearts of most residents to this day." Retail, dining and entertainment centers should
be located in existing towns, not adjacent to an already crowded shoreline.
The Kau Community Development Plan (Ordinance 2017-66) specifies the following
policies:
Policy 23 Protect the shoreline from the encroachment of man-made improvements and
structures. (GP 8.3(d))
Policy 24 Maintain the shoreline for recreational,cultural, education, and/or scientific uses in
a manner that is protective of resources and is of the maximum benefit to the general public.
(GP 8.3(c))
Policy 25 Protect and conserve forest and coastal areas with native wildlife, natural
ecosystems,and wilderness. (GP 8.4)
D Ward Comments 3
Policy 26 Encourage those developments that are not coastal dependent to locate in inland
areas. (HRS 205A-2(c)(3(D))
Policy 27 To reinforce existing protections,the official Ka'u CDP Land Use Policy Map
designates coastal areas in Ka'u as open space to be preserved, protected, and connected to
the rich network of natural and cultural resources in the region. Development and
construction in the coastal "Conservation"and "Open"areas shall be minimized and,when
necessary, limited to recreation, research, and education facilities unless otherwise permitted
by law.
Policy 28 On lots that are at least partially within the Special Management Area (SMA) in the
Ka'u CDP Planning Area, establish shoreline setbacks at the earliest stages of the land use
planning and development process at a minimum of 1,320 feet(1/4-mile); however,the
applicant may request that the setback be reduced by providing information to the
Department, including information required for SMA review,which would allow for an
assessment of the proposed activity's impacts and in consideration of the physical limitations
of the property. For lots created prior to the date of adoption of the CDP with an average lot
depth of two hundred feet or less,the shoreline setback line shall be 40 feet.
Policy29 No development, including subdivision, shall be approved in the SMA unless the
development will not have any substantial adverse environmental or ecological effect. (HRS
205A-22(3)&205A-26(2)(A))
Policy 30 Amend Planning Department Rule 11 to specify that the Planning Department
establish shoreline setbacks in the Ka'u CDP Planning Area in accordance with Policy 28.
Policy 55 Do not allow incompatible construction in areas of natural beauty. (GP 7.3(i))
Community Objective 12: Establish or expand retail, service, dining, and entertainment
centers in rural villages and towns capable of supporting Ka'u-appropriate growth.
The Welcome Center, Museum, fish market, open market and restaurant proposed in the
current SMA proposal are not in accordance with the policies listed above, and would
certainly increase the traffic near and adjacent to the crowed beach with limited parking and
access. Threats to the coastal ecosystem from the large crowds already attracted to the small
and sensitive beach are impacting the endangered wildlife whose only habitat is limited.
3: EA/ EIS Triggers
The last EIS was completed in 1988, 36 years ago. Only supplemental cultural, fauna and floral
surveys have been updated.
A DEIS was offered in 2006, but never finalized or accepted by OEQC. The proposed Sea
Mountain project elements that triggered the 2006 EIS review,include the following:
"1) a proposed upgrade or replacement of the existing wastewater treatment facility that
would increase its capacity to serve over fifty additional residential units, 2) proposed
D Ward Comments 4
project utilities and easements across and within State and/or County roadways and real
property interests,and 3) potential use of land in the Conservation District and Shoreline
Setback Area around Ninole Cove."
The law states:
"All exemptions under the classes in this section are inapplicable when the cumulative impact of
planned successive actions in the same place, over time, is significant, or when an action that is
normally insignificant in its impact on the environment may be significant in a particularly
sensitive environment." Section 11-200-8 (b), HAIR
The significant repair or replacement of the wastewater treatment facility should be a trigger
for an new EIS, since the only approved one is 36 years outdated.
2)Demotion and restoration of former restaurant building in disrepair would require EIS.
The building is over 50 years old and is contaminated by lead, arsenic and is unfenced and highly
hazardous. The historic and hazardous conditions will require multiple agency permits. Special
handling in accordance with State Department of Health Solid and Hazardous Waste Branch Office
of Solid Waste Management regulations will be required. We understand that the expense and
multiple permits required to demolish or repair the building is a burden the owner must accept,
and she did tell community members that she planned to do so.This SMA down not provide
sufficient information to assure the community that this ongoing hazard will be rectified.
b) Waste Water Treatment Plant (WWTP) expansion for more units would require an EIS:
Triggers EIS if Wastewater treatment unit,except for an individual wastewater system or unit
serving fewer than fifty single-family dwellings or the equivalent;
c) Significant changes: All of the following are referenced in the citation
https://fi les.hawai i.gov/dbedt/erp/OEQC_Guidance/2014-GU I DE-HEPA-Citizens-Guide.pdf
Affects or is likely to suffer damage by being located in an environmentally sensitive area
such as a flood plain,tsunami zone,beach,erosion-prone area,geologically hazardous land,
estuary,fresh water or coastal waters;
As it is critical to incorporate an imminent rise in sea level and other climate change effects
into plans for future development,these impacts should also be considered when drafting
an EIS.
d) Phased Actions-Project Segmentation
A group of actions proposed by an agency or an applicant shall be treated as a single action
when:
1. The component actions are phases or increments of a larger total undertaking;
D Ward Comments 5
2. An individual project is a necessary precedent for a larger project;
3. An individual project represents a commitment to a larger project;
4. The actions in question are essentially identical and a single statement will adequately
address the impacts of each individual action and those of the group of actions as a
whole (Section 11-200-7, HAR).
A proposed action must be described in its entirety and cannot be broken up into component
parts, which if each is taken separately, may have minimal impact on the environment.
Segmenting a project generally is forbidden. If a project includes a later phase that cannot be
fully described in the current EA because it will be implemented in the distant future (as
opposed to the "reasonably foreseeable future"), the EA should disclose as much detail as
possible about the future phase. Should the future phase of such a project eventually be
proposed, a new environmental review document will be required at that time.
4) Cultural and archaeological site protections
The consultant hired by the developer noted multiple areas of desecration and destruction of previously
recorded sites, including heiau. Currently there is no burial treatment plan, no preservation plan, and
no plan for access for lineal descendants to burials or cultural sites.The 2006 DEIS states "Construction
activities undertaken within an area known to have numerous archaeological sites and cultural
resources may inadvertently cause damage to some resources. "
The 2023 consultant recommends archaeological and cultural monitoring, adequate buffers,
preservation in place, rules to protect and allow access, and consultation with descendants. Until these
plans are in place,the SMA should be deferred or provisional.
Hawaii Supreme Court has recognized that all agencies have constitutional duties to protect Native
Hawaiian rights and public trust resources. Hawaii Constitution Article XII Section VII.
Ka'u Community Development Plan Policy 70: Protect, restore,and enhance the sites,
buildings,and objects of significant historical and cultural importance to Hawaii.(GP 6.2(a))
Protect all rights, customarily and traditionally exercised for subsistence, cultural and religious
purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such
rights.(Hawaii State Constitution,Article 12, section 7; HRS§§ 1-1&7-1; Ka Pa'akai o ka
'Aina v. Land Use Comm'n, 94 Hawaii 31 (2000);Pele Defense Fund v.Paty, 73 Haw. 578
(1992))
Policy 79 Ensure appropriate public access to the shoreline, public trails, hunting areas, scenic
places and vistas, and significant historic sites, buildings, and objects of public interest.
Additionally,ensure access for cultural practitioners. (GP 6.2(b), 7.3(a), and 8.3(r))
5) Infrastructure fails to meet safety standards
D Ward Comments 6
The SMA permit application notes that 17-18 fire hydrants exist, of which 7-8 are non-
functional. Without repair, the broken hydrants pose a risk that would be exacerbated by
wildfire. Hydrants should be repaired before other projects are initiated.
From 2006 DEIS:Wildfires:The project area is located in an area susceptible to brush fires.
Brush fires could easily spread onto the project site without adequate fire buffers on the project
perimeter.
Waste Water Treatment Plant (WWTP)
Despite the statement in the SMA proposal that the WWTP can handle 100,000 GPD, we are not
able to confirm that any recent upgrades have made this statement true.
The DEIS 2006 states that : "The sewer plant is outdated and continued lack of
maintenance may lead to contamination.The treatment plant,is in very poor repair and the
treatment system technology is over 35 years old.The treatment plant apparently was
designed for a flow of 50,000 gpd but has seldom operated beyond a 10,000 gpd flow rate."
Where is the solid waste buried and disposed onsite,as described in the SMA proposal?
According to the 2006 DEIS,"The sewer lift station located near the beach is currently inoperative.
Little is known about the condition of the existing collection system and therefore will require
inspection by video camera and repairs made or pipes replaced as required.
WE have heard that sewage is leaking from pipes at the park pavilion managed by Hawaii County: Is
this because the sewage pump has been non-functional for same period of time?
The 2006 DEIS states that"Currently R-2 treatment no longer meets the DOH requirements for
reuse or disposal and R-1 treatment level is required.The project's civil engineers have assumed
that the treatment plant will be replaced when the new development begins."
What are the plans to upgrade or replace the current substandard WWTP?
Water sources:
The DEIS 2006 states: There are currently two deep wells,located approximately 200 feet
apart,and a pump station sited makai of the State Highway near the site entrance.These
Ninole wells are used as a potable water supply for the existing residential development as
well as water supply for the irrigation of the golf course.These wells have combined
pumping capacity of 3.0 million gallons per day(mgd).These wells appear to be in very
poor repair and may need to be further inspected by video equipment and water quality
testing prior to integration into the potable water system for the proposed community
(Figure 4-15).The wells have a working chlorination system;however,the well piping and
equipment is in very poor repair and will require replacement if the wells are used with the
proposed project. A concrete reservoir of approximately 1 million gallon capacity is located
mauka of the Kalana I residences above the Hawaii Belt Highway.This reservoir,with a
High Water Level (HWL) of approximately 305 feet elevation,provides the basis for water
D Ward Comments 7
pressure throughout the existing community,and has been leaking for some time as
indicated by previous engineering studies.
6) Lack of affordable housing in the proposed development, leads to an influx of non-Ka'u
residents with no provision for current residents of moderate income.
The development of visitor accommodations and any resort development should complement
the character of the area; protect the environment and natural beauty; respect existing
lifestyles, cultural practices,and cultural resources; provide shoreline public access; and
provide affordable housing to meet demand created by the development. (GP 2.4.9.2(a &c),
9.3(g), 14.7.2(c), 14.7.3(i), 14.7.5.9.2(a))
7) Community consultation poor, lacking correct information
Policy 90 Implement protocols for receiving community input at meetings in Ka'u during
capital project siting and design. Consult with and solicit input from community members with
generational knowledge to minimize the impact of proposed changes to the use of land on
cultural practices,cultural sites, and culturally significant areas,including burials. Hawaii
County Ordinance 2107-66
8)Stormwater practices to mitigate impacts to shoreline and near shore coastal ecosystems
The SMA should require
Suspended sediment and other pollutants entering the surface waters during
construction are expected to be minimal with implementation of the project's site-
specific Storm Water Pollution Prevention Plan (SWPPP).This would include the
development of a SWPPP and implementation of construction site Best Management
Practices (BMP).The following is a list of requirements to be incorporated during
construction of the proposed project to minimize adverse effects on water quality:
• The Contractor shall conform to the requirements of the NPDES General Permit for
Construction Activities,and any subsequent permit,local plans and policies in effect
at the time of project construction.
• A Storm Water Pollution Prevent Plan (SWPPP) will be prepared by the Contractor
prior to the commencement of any soil-disturbing activities.The SWPPP will
address state and federal Stormwater control requirements and regulations.The
SWPPP will address construction-related activities,equipment,and materials that
have the potential to impact water quality.The SWPPP will include BMPs to control
pollutants,sediment from erosion,storm water runoff,and other construction
related impacts. In addition,the SWPPP will include elements as required by HAR
11-54 and 11-55 to ensure that the implemented BMPs are effective in preventing
exceedance of any water quality standards.
• A Notice of Intent(NOI) will be filed with the State of Hawai'i Department of Health
at least 30 days prior to any soil-disturbing activities.
D Ward Comments 8
• Construction of the proposed improvements will be conducted in various phases to
limit the amount of exposed soil disturbed at any given point.
Earthwork will conform to the State of Hawai'i construction site BMPs standards and
requirements to control and minimize the impacts of construction and construction-related
activities,materials,and pollutants on the watershed.These include,but are not limited to,
temporary sediment control,temporary soil stabilization,scheduling,waste management,
materials delivery,storage and handling,and other non-stormwater BMPs.
• Construction activities will give special attention to storm water pollution control during
the winter season.Water Pollution Control BMPs will be used to ensure all project runoff is
contained onsite and to prevent impact to receiving waters.Measures will be incorporated
to contain vehicle loads and avoid any tracking of materials,which may fall or blow onto
adjacent roadways.
• A variety of sediment and erosion control BMP's will be utilized on the Sea Mountain project
site.These BMP's consist of detention basins,rock berms,rock berms with an integral
impermeable barrier,silt fences,gravel bags,check dams,sediment traps and other BMPs as
applicable.Source control BMP measures will also be implemented throughout the site.
• Non-storm water discharges shall be prohibited from discharging to any State waters.
• Project related grading,grubbing,and stockpiling permits and operations shall conform to
the erosion and sedimentation control standards and guidelines established by the Hawaiyi
County Department of Public Works in conformity with Chapter 180C,Hawaii Revised
Statutes (1975, Ord. No. 168,sec. 3.4.).
9) Hazards for coastal ecosystems.
The developer claims that there will be no impact to the shoreline caused by activities proposed in
the SMA. However,mauka activities will likely lead to polluted runoff,increased invasive species
establishment,disruption of breeding and nesting patterns,and increased predation by introduced
pests and pets.Even more impact can be anticipated by increased visitor clustering at the very
small black sand beach already inundated with tourists.Endangered species in the vicinity are
regularly recorded and are impacted already by the pressure from visitors.
The coastal area at Punalu'u is presently a major recreational asset to residents and visitors to the
area,and development of project will bring an influx of additional visitors to the existing beach
area.Additional persons on the beach have the potential to impact the natural resources as well as
potentially affect recreationists who regularly utilize the coastal area.
We see limited acknowledgement of the impact the proposed project would have on the increased
number of visitors to the coastline,and the increased impact on the natural habitat of the coastal
ecosystem inhabitants.This is a significant factor that must be addressed beyond the proposed
repairs and developments described in the SMA proposal.
10) Endangered and endemic species impacts:
Runoff is a major threat to Megalagrion xanthomelas
Honu'ea nesting sites will be impacted with more people using the beach
Anchialine pools not under enough protection - 20' is NOT adequate
Monk seals frequented Punalu'u this winter
Hylaeus habitat affected by development mauka of coastline.
D Ward Comments 9
Given these environmental and policy issues that are not appropriately address by this
Shoreline Management Application, and given the outpouring of community opposition to further
development before these issues are adequately addressed, I strongly urge the Commission to
defer and re-evaluate this application, and make recommendations that address the immediate
issues that risk life and limb.
Thank you for reading to the end of this testimony!
Deborah Ward
P.O. Box 918 Kurtistown HI 96760
D Ward Comments 10