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HomeMy WebLinkAbout2024-03-04 PL-SMA-2023-000046 Nohea Ka'awa Members of SMA2023-046 Working Group Opposition Testimony From: Nohea Ka'awa To: W PCtesti mono Cc: Jodie Rosam;auvenriguesCabamail.com;James Awai Akau;iaerick.leeCalvahoo.com;chelsaelvnnkobzi(abamail.com; iadelvnki@amail.com; bbvkehau@icloud.com; From: Diane Ware; Deborah Ward; Lannv.Sinkin@gmail.com; kiohnstonkitazawa85Cubamail.com; kaufoodforestCabamail.com;alohaaina47aenerationsCabamail.com; Luscioushawaiian@gmail.com; Donnamarie Pabre;grimesioio50@vahoo.com; Leiahi :b; Yt epsr.;Shalan Crvsdale;Aina Akamu; Kehau Lee Hona-Mauaa; papabaiCalamail.com; Pu"u Davis; Elsa Dedman; moexzader@amail.com;Aloha Hawaii;ahiuranch@gmail.com;sea ula37@amail.com; kehautom@gmail.com Subject: Testimony; Members of the PL-SMA-2023000046 Working Group Date: Monday,March 4, 2024 8:17:07 PM Attachments: Members of the PL-SMA-2023-000046 Workina Group.docx To: The Windward Planning Commission of the County of Hawaii Re: BLACK SAND BEACH LLC (PL-SMA-2023-000046) Mahalo nui, Members of the PL-SMA-2023000046 Working Group March 4, 2024 Hawaii County Council Chambers Planning Commission 25 Aupuni Street Hilo, HI 96720 To: The Windward Planning Commission of the County of Hawaii Re: BLACK SAND BEACH LLC (PL-SMA-2023-000046) Aloha Chair Lin, Vice Chair Danielle, and Windward Planning Commissioners, This testimony is being presented in strong opposition to the request made by Black Sands Beach, LLC to acquire a special management area use permit application to develop within the Ahupua`a of Nmole, Wailau and Punalu`u. A working group meeting formulated to look over the SMA took place on Tuesday, February 27, 2024. At the meeting, members of our community were able to generate a list of important issues we felt was important for those of you who are serving on the Windward Planning commission to highly consider, and we share those points with you below. We strongly feel that to approve this SMA Application prior to addressing other important factors, plans, documentation, and regulations puts the natural and cultural resources and people of Ka`u in irreversible jeopardy. We urge you to approach this SMAA with caution and hope that this testimony will give you a deeper understanding of the impacts that this project will have on `aina. Further SMA approval should be deferred until issues of life and limb are rectified, such as water, fire hydrants, waste treatment, access and traditional cultural practices, shoreline changes and certification, crowd control and safety. If and when further SMA projects are approved,specific and enforceable mitigation measures must be provided in detail. 1. Prior to any application or project,the area in the SMA should require an updated EIS/DEIS and EA,as well as updated coastal setbacks and a certified shoreline survey.Project consultant Daryn Arai (a former County Planning Department employee) is asking that the 1988 FEIS be accepted (this FEIS is over 35 years outdated). However, the SMA permit application contains a supplemental AIS to the 1988 FEIS, which, along with the fact that an EIS was being prepared for the 2006 proposed development, would indicate that at minimum a supplemental EIS be required as well. He is also requesting a waiver of a shoreline certification, which ignores the impacts that climate change has had on the coastline since the time of the last certifation. a. The proximity of proposed development to the shoreline is not appropriate and a certified shoreline survey must be conducted. A shoreline certification was waived by PD Zendo Kern in previous SMAA. The current shoreline certification is 50 years old, and since that certification, sea level changes, earthquake, and shoreline subsidence, and climate change would indicate that the 50 year old certification may be inaccurate. According to §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. The justification in the SMAA for waiving the survey is because "no new improvements or uses anywhere near the shoreline or in conservation zones. However, the 8,000 sq ft, 2.5 story fish market,retail space, and restaurant is located within a 1/4 mile from the coastline,in an area with no existing infrastructure. Additionally, the Ka`u CDP recommends that any coastal commercial activities be coastal dependent activities, which retail and a restaurant are not. b. The coastal set-backs need to be re-evaluated and a certified shoreline survey must be conducted. Ka`u is experiencing higher and more frequent king tides and storm surges than ever before. 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. We urge the commissioners to understand the need for a re- evaluation of the current high-tide or high water mark along this coastal section. In 2023, king tides coupled with storm surge brought the ocean to meet the anchialine pool at Kawaihuokauila. Additionally, we urge that a certified shoreline survey be completed to address not only the expiration of the previous survey (see below) but also relative to the 8,000 sq ft building described above. https:Hdlnr.hawaii.gov/ld/files/2013/07/Ch 13-222-Amend-Compil-Stand-Rev l.pdf c. An updated EA and EIS should be completed, in addition to updating setbacks and conducting a certified shoreline survey. The last EIS was completed in 1988, 36 years ago. Only supplemental cultural fauna and floral surveys have been updated.A DEIS was completed in 2006 and both EIS are outdated. 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 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 Nmole Cove. Additionally, 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), HAR a.) Demolition 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. b.) Waste Water Treatment Plant(WWTP) expansion for more units: 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 below) Affects or is likely to suffer damage by being 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; 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 is generally 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. https://files.hawaii.gov/dbedt/ep2/OEQC Guidance/2014-GUIDE-HEPA-Citizens- Guide.pdf 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 of 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. 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 Niinole 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 I 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 pressure throughout the existing community, and has been leaking for some time as indicated by previous engineering studies. 2. Conservation land needs to be explicitly defined and solidified prior to hearing this SMA Application. There is confusion as to which areas will be considered preserved as conservation lands and by what means. Of the 434 acres included in this project, less than 30 are to be set aside for conservation in one way or another. The SMAA states that: "The intent of the conservation area is to set aside these coastal lands in public trust for coastal recreational and subsistence opportunities, protection of historic resources and cultural practices, protection of sensitive natural resources and coastal processes." However,the SMA lacks a clear definition of how these lands will be conserved and by whom. It is a realistic probability that if the current landowner were to sell this land, coastal protections may not be included. We believe that prior to hearing this SMAA, the County should work with the landowner to finalize negotiations regarding protecting the entire coastline and coastal habitats,not just 29 acres which do not include the beach. Privatizing Punalu`u beach is by no means beneficial to the Ka`u community or the coastal resources at Punalu`u. 3. There is no burial treatment plan in place nor cultural and archeaological site protections.We demand that the State Historic Preservation Division(SHPD)reviews the recommendations and that a preservation plan, burial treatment plan and a plan for access for lineal descendats to burials and cultural sites be completed. The consultant hired by the developer noted multiple areas of desecration and destruction of previously recorded sites, including heiau. The 2006 DEIS states that " 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. The 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.Policy 70 to protect, restore, and enhance the sites, buildings, and objects of significant historical and cultural importance to Hawaii. (GP 6.2(a)) Protections and policies have not been met in this SMA Application. Protection of 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 Hawai`i 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)) It should be noted that as of January, 2024, many of the existing walls, buildings, and structures are now 50+years old, deeming them as "historic properties." Protections need to be in place for these areas in consultation with SHPD and archaeologists. We emphasize that prior to the review or even submittal of any SMAApplication at this area, SHPD must address the recommendations provided by the AIS and the supplemental AIS so that proper preservation plans and burial treatment plans be solidly in place prior to any land alteration. The site plan for the wellness center sits on previously disturbed land, however the AIS and supplemental AIS acknowledge the large number of archaeological disturbances from previous owners. It is likely that`iwi kupuna will be exposed during grubbing and grading, and proper plans must be in order and regulated by the State. 4. This SMAA includes many plans which do not comply with the Ka`n Community Development Plan. The Ka`u Community Developmenmt Plan(Ka`u CDP)is a document created over many years with much thoughtful planning and articulation by many members of our community. 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 Ka`u CDP (HAWAII COUNTY ORDINANCE 2017-66). According to the Ka`u CDP, "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 Ka`u CDP(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) 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. Policy 29: 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. This SMAA lacks affordable housing in the proposed development. 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)) 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.We understand that the applicant did reach out to many community members and organizations for input.We also understand that the applicant has downsized plans relative to previous developers. However, often times community input was disregarded or misconstrued, and plans continued to change. Project manager Daryn Arai eluded to the ideas in the SMAA being only "schematics" and not true depictions of what buildings will look like. We believe that we cannot support something that is constantly changing and not being accurately portrayed. 5. This SMA will impact 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 lead to polluted runoff, increased invasive species establishment, disruption of breeding and nesting patterns of endangered, endemic, and migratory birds and waterfowl, 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. Listed threatened (T) and endangered (E) species documented within the SMA are: Loulu or Hawaiian fan palm (E), `Ope`ape`a or Hawaiian hoary bat (E), I`o or Hawaiian hawk (E), Honu or green sea turtle(T),Honu`ea or Hawaiian hawksbill turtle(E), and `llioholoikauaua or Hawaiian monk seal (E). Additional T&E species habitats within the SMA include those for Nalo meli maoli or yellow-faced bee (E), Pulelehua or Blackburn's sphinx moth (E), `Opae`ula or anchialine pool shrimp(E), Ae`o or black-necked stilt(E), `Alae ke`oke`o or Hawaiian coot, and `Ohai or Sesbania tomentosa(E). 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 local 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 exponential impact on the natural habitat of the coastal ecosystem inhabitants. Additionally, increased tourism will have a ripple effect on the rest of the coastline of Ka`u. The sensitive coastline of the Ahupua`as of Kiolaka`a, Kawela, and Kama`oa are already being inundated by illegal commercial activity (i.e., unpermitted ATV tours). Bringing more tourists and visitors to Punalu`u will undoubtedly increase the frequency and establishment of illegal activities conducted along the coastline. This is a significant factor that must be addressed beyond the proposed repairs and developments described in the SMA proposal. 6. The SMAA lacks an emergency mitigation plan. The SMA Application has no mitigation plan with regards to fire, flooding, tsunami, earthquakes, volcanic eruption, and hurricane coupled climate change and predicted future extreme weather events. This development will drive more visitation, and more development, resulting in overpopulation of our coastline, roadways and evacuation routes. The inundation of hundreds if not thousands of additional people each day creates an unsafe environment for residents and visitors alike. Furthermore, and the proposed plan suggested by Eva Liu to install gates on the Nmole loop road access connecting to the highway undoubtedly would block evacuation routes, leaving Punalu`u-goers trapped during an emergency. This SMAA application does not address emergency services. Our Ka`u Fire Department, Police Department and our Hospital is not equipped to service an additional tourist and visitor community, as theyalready cover the largest district across the island. The fire disaster in Maui has taught our Ka`u community that a thorough disaster mitigtion plan will save lives during an unexpected event. As decision makers, you as a comission have an extensive responsibility, and with the proper steps taken, a disaster waiting to happen can be prevented. 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 94(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)). Fire: Eight of eighteen fire hydrants are currently inoperable; many have rusted at the base and several have fallen over. With the annual fires encountered within Punalu`u and the confines of this SMA, we request that hydrants be repaired before other projects are initiated. From 2006 DEIS, 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. The County Fire Department, Colony 1 Condo, and Punalu`u Mauka (Kalana Estates) residents have pushed to address these issues but in 4 years of black sands beach LLC ownership, these fire hydrants are still out of order. For first hand information on infrastructure issues please contact Jeff Silva who is a board member condo owner colony one, grade 4 licensed water distribution system operator, grade 1 system operator and resident of Punalu`u and works for the Hawaii County Fire Department in Pahala (808)345-8024. Flooding: Three of seven bridges were repaired in 2021 between Honu`apo and Pahala Hospital. The Punalu`u 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 of the 500-year floodplain. With the impacts that Rapid`Ohi`a Death is having within our Ka`u Forest Reserve (directly mauka of the property) and the dying off of our Kupuna trees, we can expect to see heavier flooding conditions and severe runoff with major debris at levels we have not encountered before. Four bridges have not been updated with repairs, three of which are located between Punalu`u and the newly-built emergency shelter in Pahala, we have reason to insist that repairs to the remaining bridges be completed prior to addressing the potential for any new development. 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, the risk of future tsunami inundation is significant in the coastal zone and must be addressed. Lava flows: The project area is within lava hazard zone 3, 3 with one posing the greatest hazard and 9 posing the least, indicating a moderate to severe hazard. . An active cinder cone sits within the proposed development area. This cinder cone is the arm of the southwest flank of Mauna Loa, which means that a future eruption could potentially begin from within this cinder cone. There is a reason why the adjacent lands to the northeast and southwest are undeveloped. We believe that any development in this area is subject to inundation by future flows, and without addressing evacuation routes and wildfire mitigation measures, no new developement should even be considered. 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. Hurricanes: The Punalu`u coastline is susceptible to Pacific hurricanes generated off the coast of Mexico. Based on historical tracts and computer simulations,Hawai`i County is at the greatest risk of impact from hurricanes. (Hwang,Page 43). Hurricane hazards include damage from high winds in excess of 74 mph and flooding due to heavy rainfall and storm surgedue 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 mesosscale 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. 7. Broken and or clouded land titles exist within the SMA boundaries. A consultant has confirmed that there are Kuleana lands that sit within the proposed development TMKs that have broken and/or clouded land titles. An access plan and consultation with regard to these title holders have yet to be addressed. We strongly feel that approving this SMA Application prior to addressing the factors outlined in this testimony will be a devastating hit to the natural and cultural resources and people of Ka`u. We urge you to closely consider these points and stand with the people of Ka`u and oppose or at least defer this SMA Application until all other components outlined above are addressed and corrected. We thank you for your time and investment in this very important matter. He `a`ali`i kid makani mai au; `a`ohe makani nana e kdla`i. Mahalo nui, `Aina Akamu Jamea Akau Michael Alexander Marshall Baji Shalan Crysdale Lily Christianson Jim Cocallas Pu`u Davis Trice Davis Elsa Dedman Guy Enriques Jolyn Grimes Alex Grace James Grimes Christine Inserra Jadelyn Kekoa Jara Kamalyn Kekoa Jara Leiahi`ena Ka`awa Nohealani Ka`awa Ka'u Johnston Kitazawa Alexis Kerver Chelsae Kobzi Earl Kaleohano Louis Kehaulani Lee-Hong Mauga Jaerick Medeiros Donna Pabre Keoni Peyton John Replogle Jodi Rosam Lanny Sinkin Ikaika Ka`iliawa Smith Jr. Tupa`i Diane Ware Debora Ward Donna Willard And Members of the PL-SMA-2023-000046 Working Group