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HomeMy WebLinkAboutPD Recommendation Report (PL-SPP-2025-000093) 1 RDEM_WWTPSPP.ja..8.29.25 COUNTY OF HAWAI‘I PLANNING DEPARTMENT RECOMMENDATION COUNTY OF HAWAIʻI DEPARTMENT OF ENVIRONMENTAL MANAGEMENT SPECIAL PERMIT APPLICATION (PL-SPP-2025-000093) Upon review of the request against the guidelines for granting a Special Permit, the Planning Director recommends that the request to construct and operate a new County-owned wastewater treatment plant facility on an approximately 14.9-acre portion of a larger 42.5-acre parcel of land be approved by the Windward Planning Commission. Since this recommendation is made without benefit of public testimony, the Director reserves the right to modify and/or alter this recommendation based upon additional information presented at the public hearing. The recommendation for approval is based on the following findings: The applicant is requesting a Special Permit to construct and operate a County-owned wastewater treatment plant (WWTP) facility, designed as a package plant to treat sewage currently being disposed of in 2 existing large capacity cesspools (LCCs), with operations including preliminary treatment, odor control, secondary treatment and disposal of the treated effluent. See pages 5-12 of the Application for a detailed description of the treatment process and collection system. The proposed facility will include the following (see Exhibit A of the Application for Project Figures and Site Plans): • A security fence around the perimeter of the 14.9-acre permit area • Package plant headworks • Dewatering equipment • Grit drying bed • Potable water tank • Utility operations building which includes an emergency generator room and an electrical room with a monitor control center • Maintenance and storage room • Restrooms • Above ground fuel storage tank 2 • Irrigation control tank, designed with capacity for future expansion within the permit area The 14.9-acre permit area does not include an existing 1,500-foot-long by 25-foot- wide utility easement on the subject property and does not include work within the County Road rights-of-way for the collection system given that public utilities are a permissible use within the State Land Use Agricultural District per HRS 205-4.5(7). According to the DEM, the County will complete a process of condemnation and an order of possession of the 14.9-acre permit area, which will be subdivided from the larger property. A portion of the Pāhala community is serviced by a sewer system that was privately built, owned, and operated by the C. Brewer Company (C. Brewer). The C. Brewer built sewer system discharges into two (2) large capacity cesspools (LCCs). Around 2006, C. Brewer requested that the County of Hawaiʻi (County) Department of Environmental Management (DEM) construct and maintain a new and improved community sewer system. A County Council Resolution approved the C. Brewer request. In anticipation of C. Brewer's dissolution, C. Brewer proposed, and the County agreed, to enter into a formal agreement to construct and maintain a new and improved community sewer system and to also assume ownership of the existing system including the LCC's by April 30, 2010. As part of this agreement, for the majority of Pāhala and Nāʻālehu properties connected to the LCCs, C. Brewer committed to complete the line (called a lateral) between the residences and the property line at the edge of the public right-of-way adjacent to the new collection system. It was agreed, if the County did not complete its portion of the work by April 30, 2010, the County would assume pending and unfinished obligations to connect the new laterals installed by C. Brewer to the residences and new collection system when complete. Thus, because that date has passed and the County has not completed installation of the new collection system, this project includes connecting these C. Brewer laterals, which may now need to be replaced, or installing private laterals for currently connected properties if authorized by the property owner and approved by the County Council. In 1999, the U.S. Environmental Protection Agency (EPA) issued regulations under the Safe Drinking Water Act’s (SDWA) Underground Injection Control (UIC) Program which prohibit construction of new LCCs and require the closure of all existing LCCs. In 3 2010, the County of Hawaiʻi assumed ownership of an existing private sewer system and LCCs that serve a portion of Pāhala. Following an amended Administrative Order of Consent (AOC) between the County and the EPA, the County is required to close the LCCs and replace the existing system with a new wastewater and disposal system. A total of 9 alternative sites were identified and assessed, with the 14.9-acre permit area selected as the preferred alternative for construction of the new WWTP. The applicant notes that staffing projections are not yet completed, however it’s expected that the WWTP will be staffed by up to 2 supervisors with additional staff present for repair and maintenance of equipment and will operate daily from 7:00 AM to 3:30 PM. The grounds for approving a Special Permit are based on Rule 6-7 in the Planning Commission Rules. It states that the Planning Commission shall not approve a Special Permit unless it is found that the proposed use (a) is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be and (b) the proposed use would promote the effectiveness and objectives of Chapter 205, Hawai‘i Revised Statutes, as amended. The proposed use is an unusual and reasonable use of land situated within the Agricultural District that would not be contrary to the effectiveness and objectives of Chapter 205, Hawai‘i Revised Statutes, as amended, as amended. In recognizing that lands within agricultural districts might not be best suited for agricultural activities and yet classified as such, and in recognition that certain types of uses might not be strictly agricultural in nature, yet reasonable in such districts, the legislature has provided for the Special Permit process to allow certain unusual and reasonable uses within the Agricultural district. The subject property is 42.5-acres in size, of which the applicant proposes to use a 14.9-acre portion for the proposed use and is situated within the County’s Agricultural (A- 20a) zoning district. The request is unusual in that the proposed use is not strictly agricultural in nature. While a 4-acre portion of an existing macadamia nut tree orchard will be removed to construct the WWTP and the remaining trees in the permit area will not be used for productive agriculture, the potential for agricultural use on the remainder of the larger subject property will be reduced but not diminished. 4 Further, the request is reasonable since wastewater treatment plants and other public uses that can generate nuisances such as noise and odors, such as transfer stations, are typically located in the State Land Use Agricultural district with adequate distance from the communities they serve. Based on the preceding, it is reasonable that this use be allowed in the Agricultural district. In addition to the above listed criteria, the Planning Commission shall also consider the following criteria listed under Section 6-3(b)(5) (A) through (G) of its rules of practice and procedure: (A) Such use would not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations. The State Land Use Law and Regulations are intended to preserve, protect, and encourage the development of lands in the State for those uses to which they are best suited in the interest of the public health and welfare of the people of the State of Hawaiʻi. In the case of the Agricultural District, the intent is to preserve or keep lands of high agricultural potential in agricultural use. In this case, the County designates the property as Low Density Urban, the soils are classified as B and D by the Land Study Bureau’s Overall Master Productivity Rating and designated as a mix of unclassified, Other Agricultural Lands and Prime Agricultural Lands by the Department of Agriculture’s ALISH Map. As the proposed use will occur within a 14.9-acre portion of the larger subject property, the potential for agricultural use on the parcel will be reduced but not diminished. By letter dated July 28, 2025, the State Office of Planning and Sustainable Development concurred that the proposed WWTP will not significantly interfere with ongoing agricultural activity in the area and is necessary and reasonable to serve the Pāhala community. Therefore, the proposed use will not adversely affect the preservation and agricultural use of prime agricultural lands and is not contrary to the objectives sought to be accomplished by the State Land Use Law and Regulations. (B) The desired use shall not adversely affect the surrounding properties. Properties surrounding the subject property to the west and south are zoned Agricultural (A-20a and A-1a), with most used for macadamia nut orchards. Properties further to the north are zoned Single-Family Residential (RS-7.5, RS-10 and RS-15), Industrial (MG- 5 1a), Light Industrial (ML-20) and Open with uses consisting of agriculture, residential, and vacant lands. A macadamia nut processing facility is located approximately 200 feet northeast of the permit area, on the adjacent parcel, while the nearest residences of Pāhala town are located approximately 0.5 miles north of the permit area. In December 2017, a total of five community outreach sessions were conducted in the Pāhala community. A public information meeting for the Draft EA was held in October 2018. A total of five community outreach sessions to discuss the Revised AOC were conducted in the Pāhala and Nāʻālehu communities between March 2022 and September 2023. The fifth session, held on September 28, 2023, was conducted to inform the community of preparation of the EID and the criteria of its analysis. An early version of the project which proposed aerated lagoon technology and large open lagoons generated opposition regarding the potential for odors to adversely affect the community. According to the applicant, the revised design and location of the package plant will minimize odor and air quality impacts on the surrounding community. The applicant notes that construction activities will comply with HAR 11-46 (Community Noise Control) and that a noise permit will be obtained for any activities that may exceed permissible levels. Additional measures to mitigate construction noise proposed by the applicant include scheduling construction activities during daytime hours, avoiding noisy activities during quiet hours (evenings and weekends), and using noise barriers or sound-reducing equipment. Furthermore, the applicant notes that operation of the wastewater treatment facility may generate noise from equipment, pumps and mechanical systems, contributing to ambient noise levels in the surrounding vicinity. The applicant proposes to mitigate operational noise by considering noise-reducing designs for treatment facilities such as noise barriers or acoustic enclosures as well as scheduling noisy activities outside of quiet hours. As of the date of this writing, the Planning Department has received no letters of public testimony opposing the proposed special permit. Based on the preceding it is not anticipated that the proposed use will adversely affect the surrounding properties. 6 (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection. Access to the subject property is from Maile Street, a County-owned, paved roadway. Designated parking within the permit area will be accessed by a new 24-foot wide asphalt concrete driveway. According to the applicants, only facility operators will visit the property and traffic impacts are not anticipated to be significant, with traffic remaining consistent with current levels. The applicant states that water will be provided to the permit area by installing a service line to connect the facility to an extended water main, subject to approval by Department of Water Supply (DWS). DWS notes that the subject property is not serviced by county water and that the nearest point of connection is from an existing 6-inch waterline at the intersection of Huapala Street and Maile Street, approximately 2,000 feet northeast of the subject property. DWS requests the submittal of estimated maximum daily water usage calculations, prepared by a professional engineer. Upon review, if water is available, a water commitment deposit will be due and DWS will determine facilities charges, water systems improvements and other conditions for final approval. DWS also requests that construction plans show, and proposed sewer lines be installed with the proper horizontal and vertical clearances from existing water system facilities and concrete jacketing at waterline crossings, per DWS Water System Standards. Finally, DWS requires backflow prevention devices to be installed at water system connections for the facility. Conditions of approval will be included to address the preceding. The property is situated within an area designated as Flood Zone X on the Flood Insurance Rate Map (FIRM) by FEMA, an area of minimal flood hazard located outside the 500-year flood plain. Electrical, telephone and emergency services are available to the subject property. Based on the preceding, the requested use will not burden public agencies to provide additional services. (D) Unusual conditions, trends, and needs have arisen since district boundaries and regulations were established. In the 1960’s and 1970’s, the State’s Agricultural District boundaries and regulations were established and subsequently 7 amended pursuant to HRS Chapter 205. The State Land Use Commission was created in 1961, and interim regulations and temporary district boundaries became effective in 1962. Subsequently, the regulations and Land Use District Boundaries became effective in August of 1964. Although the property and surrounding areas are designated for agricultural uses by both State and County land use laws, through the issuance of a Special Permit, various “non-agricultural” services and uses may be allowed. Since the district boundaries were established, the Pāhala community’s need for an upgraded sewer system has become a high priority for the County. The proposed use would meet this demand by allowing for construction of the proposed WWTP. (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district. The land is suited for agricultural uses and has historically been used for a macadamia nut tree orchard. Although the orchard in a portion of the permit area will be removed, most of the trees on the subject property will remain. (F) The proposed use will not substantially alter or change the essential character of the land and the present use. The character of the surrounding lands is predominantly agricultural in nature, with uses including macadamia nut orchards, agricultural processing facilities and vacant land. On-site parking will be provided, and the applicant does not anticipate significantly adverse traffic impacts on the local roadway system. Although a 4-acre portion of the existing orchard will be removed, the majority of trees will remain on the subject property and will provide a buffer between the proposed facility and public roads. Based on the preceding, the proposed request will not substantially change the essential character of the land and the present use. (G) The request will not be contrary to the General Plan, Community Development Plan and Zoning Code. The Land Use Pattern Allocation Guide (LUPAG) Map component of the General Plan is a representation of the document’s goals and policies to guide the coordinated growth and development of the County. It reflects a graphic depiction of the physical relationship among the various land uses. The LUPAG Map establishes the basic urban and non-urban form for areas within the County. 8 The subject property is designated as Low Density Urban which allows for residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses; overall residential density may be up to 6 units per acre. The proposed WWTP is considered a community and public use and will reduce but not diminish agricultural use of the subject property. Approval of the subject request would support the following goals and policies of the General Plan: Public Utilities – Sewer (11.6.2) • Immediate steps should be taken to designate treatment plant sites, sewerage pump station sites, and sewer easements according to the facility plans to facilitate their acquisition. • Continue to seek State and Federal funds to finance the construction of proposed sewer systems and improve existing systems. The subject property is located within the boundaries of the Kaʻū Community Development Plan (CDP), which designates the subject property as Important Agricultural Lands in the Land Use Policy Map for Pāhala. Section 5.8 of the Kaʽū CDP sets goals and objectives to improve Environmental Management Facilities for the CDP area, including to prioritize expanded wastewater systems and other critical community infrastructure. The applicant notes that the project will allow for future expansion of the collection system, in alignment with the goal of Policy 120 to “extend the primary wastewater collection lines in Pāhala and Nāʻālehu so that infill development projects can connect wastewater systems built for new subdivisions to the County systems.” Land use policies in the Kaʻū CDP address policy controls to limit non-agricultural developments on land designated as Important Agriculture Lands, which includes the subject property: • Policy 38: To reinforce existing protections, the official Kaʻū CDP Land Use Policy Map designates agricultural lands in Kaʻū as areas to be preserved for agricultural and open space. Development and construction in “Important Agricultural Land” and “Extensive Agriculture” areas shall be limited to agriculture, related economic infrastructure and cottage 9 industries, renewable energy, open area recreational uses, and community facilities unless otherwise permitted by law. • Policy 40: Special permits of any kind in the “Important Agricultural Land” and “Extensive Agriculture” Land Use Policy Map categories should not be permitted in the Kaʻū CDP planning area, except for the following uses (as defined in HCC chapter 25): - Agriculture and Related Economic Infrastructure: Animal hospitals, Veterinary establishments, Fertilizer yards utilizing only manure and soil, for commercial use - Cottage Industry related to Agriculture: Bed and breakfast establishments, Guest ranches, Lodges, Home occupations - Community Facilities: Community buildings, Public uses and structures, Shooting ranges, ATV courses (in areas without cultural, natural resource or scenic value) - Quarries whose permit conditions address geotechnical, engineering, safety, private road use, oversight and any site- specific issues - Urban Uses in Ocean View: Uses consistent with the LDU, MDU and Industrial LUPAG categories indicated on the Kaʻū CDP Land Use Policy Map in Ocean View, until the SLU boundaries are amended (from Agriculture to Urban). Since the proposed use is a public facility, it qualifies under the criteria to obtain a Special Permit, as allowed under Policy 40. Based on the preceding, the proposed use is not contrary to the General Plan, Community Development Plan, or the Zoning Code. The proposed use is not contrary to the objectives sought to be accomplished by Chapter 205A, Hawaiʻi Revised Statutes, relating to Coastal Zone Management Program. The Special Management Area (SMA) is part of the Coastal Zone Management Program regulated by the County. The subject property is not proximate to the shoreline and will not be impacted by coastal hazards or affect beach erosion, coastal ecosystems, and marine resources. There is no designated public access to the mountain or shoreline 10 areas over the property and the proposed use will not adversely impact any recreational resources, including access to and along the shoreline, scenic and open space nor visual resources. Therefore, the proposed use is not contrary to the objectives of Chapter 205A, Hawaiʻi Revised Statutes. The request will not have a significant adverse impact to traditional and customary Hawaiian Rights. In view of the Hawaiʻi State Supreme Court’s “PASH” and “Ka Paʻakai O KaʻAina” decisions, the issue relative to native Hawaiian gathering and fishing rights must be addressed in terms of the cultural, historical, and natural resources and the associated traditional and customary practices of the site. Investigation of valued resources: Two botanical studies were conducted at the subject property, the first in August 2018 and the second in October 2023. The studies included biological field studies and avian studies. An archeological field inspection, conducted in November 2016, involved pedestrian sweeps of the subject property to determine the presence of historic properties or significant archeological features, and an Archeological Inventory Survey (AIS) was conducted in September 2018. The valued cultural, historical, and natural resources found in the area: The above- referenced botanical studies indicated the presence of two native species on the subject property, Ipomoea indica and Waltheria indica, in addition to ornamental plants, macadamia nut trees and cook pines. Additionally, avian studies indicated the presence of common introduced species such as House Sparrow, Zebra Dove, Northern Cardinal, and Japanese White-eye and noted an incidental observation of the Hawaiian Hawk. Although geotechnical investigations indicated the presence of a lava tube on a portion of the subject property, the 2018 AIS confirmed no significant artifacts or cultural deposits were observed on the ground surface of the permit area and that no cultural deposits or lava tubes were encountered during subsurface trenching. Possible adverse effect or impairment of valued resources: The above-referenced studies concluded that listed or endangered plant species are unlikely to be encountered or disturbed by the proposed use. By letter dated February 15, 2019, the Fish and Wildlife Service (FWS) concluded that the proposed use may affect, but is not likely to adversely affect, the endangered Hawaiian hoary bat, Hawaiian Hawk, Hawaiian goose, Hawaiian 11 Petrel, Band-rumped Storm-Petrel, Hawaiian Stilt and Hawaiian Coot, and the threatened Newell’s Shearwater. According to the applicant, the proposed use will incorporate the avoidance and minimization measures cited in the FWS letter, including (but not limited to) avoiding impacts to potential Hawaiian hoary bat habitat during the bat birthing and pup rearing season; conducting a Hawaiian hawk nest survey prior to any work during the nesting season; avoiding activities near active nests; and avoiding nighttime construction during the seabird fledging period. Additionally, the WWTP building will use down- shielded light fixtures to minimize the potential for adverse impacts on avian species. A condition of approval will be included to address the preceding. As noted above, a geotechnical investigation showed the presence of a lava tube on a portion of the subject property. However, the applicant notes that the WWTP has been sited to avoid the lava tube and that the effluent irrigation system would only require relatively shallow excavation for placement of the effluent disposal lines. Grading, excavating, and fill activities during construction would occur no deeper than approximately 10 feet below grade and if bedrock is encountered during excavation, removal would be accomplished using excavators or hydraulic hoe rams and/or pneumatic drill hammers consistent with other area construction activities. A condition of approval will be included to address inadvertent archeological findings. By letter dated February 20, 2020, SHPD provided concurrence that no historic properties shall be affected by the proposed use, and an Archeological Monitoring Plan was accepted by SHPD on November 4, 2020. In compliance with Section 106 of the National Historic Preservation Act (NHPA), the County sent letters requesting comments from various Native Hawaiian Organizations in 2018. In 2023, an Archeological Literature Review Report concluded that surface pre-contact sites are not expected within the permit area given the known traditional land use in the area and impacts of continued agricultural and residential development. Feasible actions to protect native Hawaiian rights: To the extent which traditional and customary native Hawaiian rights are exercised, the proposed action will not affect traditional Hawaiian rights; therefore, no action is necessary to protect these rights. 12 Lastly, this recommendation is made with the understanding that the applicant remains responsible for complying with all other applicable governmental requirements in connection with the approved use, prior to its commencement or establishment upon the subject property. Additional governmental requirements may include the issuance of building permits, the installation of approved water systems, compliance with the Fire Code, installation of improvements required by the American with Disabilities Act (ADA), among many others. Compliance with all applicable governmental requirements is a condition of this approval; failure to comply with such requirements will be considered a violation that may result in enforcement action by the Planning Department and/or the affected agencies. Based on the preceding findings, it is recommended that the request for a Special Permit to construct and operate a new County-owned wastewater treatment plant facility be approved by the Windward Planning Commission. Approval of this request is subject to the following conditions: 1. The applicant(s), its successor(s) or assign(s) (“Applicant”) shall be responsible for complying with all of the stated conditions of approval. 2. The operation of the proposed use shall be conducted in a manner that is substantially representative of plans and details as contained within the Special Permit application received by the Planning Department and representations made to the Windward Planning Commission. Any substantial expansion or uses beyond what is represented in these documents shall require an amendment to this permit. 3. Prior to the submittal of plans for a building permit, the Applicant shall secure Final Plan Approval for the proposed use from the Planning Director in accordance with Section 25-2-70, Chapter 25 (Zoning Code), Hawai‘i County Code. Plans shall identify all existing and/or proposed structure(s), fire protection measures, driveway access and parking stalls, outdoor lighting (if any), and other improvements associated with the proposed development. 4. Prior to the issuance of a water commitment by the Department of Water Supply, the Applicant shall submit the anticipated maximum daily water usage calculations as prepared by a professional engineer licensed in the State of Hawai‘i to the 13 DWS. The Applicant is responsible for maintaining valid water commitments to support the proposed use until such time that required water facilities charges are paid in full. 5. The Applicant shall construct necessary water system improvements as required by the Department of Water Supply. 6. The Applicant shall install, construct, and maintain improvements for Fire Department Access Road (FDAR) access to the permit area and fire suppression improvements, including but not limited to on-site water storage, as required by the Fire Department. Upon successful completion of the improvements and prior to the commencement of the proposed use, the Applicant shall provide the Planning Department documentation from the Fire Department that the improvements meet Fire Code standards. 7. All activities shall comply with the requirements of Hawai‘i County Code, Chapter 10, Erosion and Sedimentary Control. 8. Any construction within the County right-of-way shall comply with the requirements of Hawai‘i County Code, Chapter 22, County Streets. 9. The Applicant shall implement the Archeological Monitoring Plan, approved by SHPD on November 4, 2020. 10. In the event that surface or subsurface historic resources, including human skeletal remains, structural remains (e.g. rock walls, terraces, platforms, etc.), cultural deposits, marine shell concentrations, sand deposits, or sink holes are identified during the demolition and/or construction work, the Applicant shall cease work in the immediate vicinity of the find, protect the find from additional disturbance and contact the Department of Land and Natural Resources-State Historic Preservation Division (DLNR-SHPD) at (808) 933-7651. Subsequent work shall proceed upon an archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation measures have been taken. 11. Should any state or federally listed or endangered species be found on the subject property, the Applicant shall comply with all applicable requirements of the 14 Department of Forestry and Wildlife and/or the United States Fish and Wildlife Service. 12. The Applicant shall comply with all applicable County, State and Federal laws, rules, regulations, and requirements in connection with the approved use, prior to its commencement or establishment upon the subject property. 13. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate procedures to revoke this Special Permit.