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HomeMy WebLinkAboutSupplemental Document for Appeal_v1.pdfSupplemental Document for Appeal ERIKA EMPEY TMK: (3) 7-9-009:040 Appeal of Department of Public Works Notice of Violation dated August 13, 2026 NOTICE AND STATEMENT OF APPEAL Dear Members of the Board of Appeals: I respectfully appeal the Department of Public Works' August 13, 2026 Notice of Violation (Exhibit C) concerning an alleged alteration and obstruction of a drainageway on my property, TMK (3) 7-9-009:040. I request that the Notice of Violation be reversed because the County has not established that I excavated, graded, filled, obstructed, or otherwise altered this drainageway. To the contrary, the evidence shows that the change in this area occurred during the extraordinary Kona Low flooding event. The County initially investigated the matter and rescinded its original Notice of Violation (Exhibit A & B). The County later issued a second Notice requiring me both to "remove the obstruction" and to "rebuild the embankment to its original form." (Exhibit C) I dispute both the factual and legal basis for that order. Of particular concern, a County field inspector subsequently observed the area and stated on video that it was "unobstructed" and "considered unobstructed," while also communicating a Department directive that I restore an approximately three -foot -high berm across the path actually taken by the Kona Low floodwaters. That directive appears fundamentally inconsistent with the rationale for the Notice of Violation, Hawaii County Code § 27-37, and the County Auditor's own 2024 description of the obligation to maintain privately owned drainageways so that they remain capable of carrying stormwater and are free from encroachments and obstructions. For the reasons below, I respectfully request that the Board reverse the Notice of Violation. I. Background and chronology: The area in question is located below my residence and agricultural structures. During the Kona Low, an extraordinary volume of stormwater crossed my property. The flood caused substantial erosion and damaged property, including one of my structures. The flood followed a low-lying bedrock route through the property. I did not excavate this drainageway before, during, or after the flood. Nevertheless, following a complaint made by my neighboring property owner, Stanley, the Department of Public Works issued a Notice of Violation dated May 19, 2026. Public Works then conducted a further inspection. On June 3, 2026, Brad Uemoto informed me in writing (Exhibit A): "For your records, after further inspection by our inspector Brenton Calderon and myself, we will be rescinding the violation previously put on your property dated 5/19/2026." Thus, after County personnel actually inspected the property, Public Works determined that the original violation should be rescinded. The County subsequently consulted its floodplain engineer and, on August 13, 2026, issued a new Notice of Violation. The August 13 Notice states: "Considering the situation where a tree had fallen over and eroded a ditch embankment, you will be required to rebuild the embankment to its original form." The Notice further states that: "The altered drainage way on the subject property is in violation of the Hawaii County Code." It specifically references Hawai'i County Code § 10-3(b)(6), which states excavation cannot alter the general and localized drainage pattern with respect to abutting properties, and then states: "As the property owner, you are required to remove the obstruction and all the debris from the drainage way." These statements raise several significant factual and legal problems. II. I did not excavate or alter the drainageway: The central factual premise underlying the Notice appears to be that excavation or some other affirmative act altered the drainage pattern. That did not occur. I have never used an excavator on this portion of my property. I did not excavate, bulldoze, grade, fill, or intentionally redirect this drainageway. In fact, if I had money available to hire or rent an excavator, I have numerous areas in my coffee orchard where removing rocks would provide an actual agricultural benefit. I would have no reason to spend that money excavating a drainage route below my home and agricultural buildings. The geography also makes the allegation illogical. The Kona Low flood damaged the foundation of one of my agriculture buildings. If my intention had been to intentionally alter stormwater flow to protect my property, the logical place to do that would have been uphill of my residence and agricultural structures. The area that Public Works claims I altered is below those structures. Altering drainage there would provide me no protection or meaningful benefit whatsoever. More importantly, the County should decide this appeal based upon evidence, rather than speculation concerning motive. The County has not identified: • when I supposedly conducted excavation; • what equipment I supposedly used; • what soil or rock I supposedly removed; • where excavated material supposedly went; • how much material was supposedly displaced; • what grading work I supposedly performed; or • any witness, photograph, video, permit record, equipment record, or other evidence establishing that I performed excavation. The actual cause of the physical change identified in the Notice was the Kona Low. Indeed, the County's own August 13 Notice acknowledges that a tree fell and "eroded a ditch embankment." That describes a natural flooding and erosion event —not excavation performed by me. III. The county's reliance upon HCC § 10-3(b)(6) does not establish a violation: The August 13 Notice specifically states "The altered drainage way on the subject property is in violation of Hawaii County Code. Specifically, but not limited to Section 10-3(b)(6) which states that excavation cannot alter the general and localized drainage pattern with respect to abutting properties." (Exhibit C) But § 10-3 is titled "Exclusions." (Exhibit K) Excuse me while I laugh, but, Section 10-3(b) starts with "This chapter shall not apply to the following, and then (6) "Excavation which does not alter the general drainage pattern with respect to abutting properties, which does not exceed one hundred cubic yards of material on any one site, and not exceed five feet in vertical height at its highest point... So this part of Hawaii County Code describes certain excavation that is excluded from Chapter 10 when it does not alter the general drainage pattern with respect to abutting properties... The provision therefore does not, standing alone, establish that I personally committed an excavation violation. More fundamentally, I did not excavate the drainageway at all. The County's reliance on HCC § 10-3(b)(6) raises a substantial issue of statutory interpretation, because the meaning attributed to that provision in the Notice appears inconsistent with the text and context of the Code. The County should therefore be required to identify the provision of Chapter 10 that it contends I violated, the regulated activity it contends I performed, and the evidence establishing that I performed that activity. If the County's position is instead that a naturally occurring flood altered the drainage pattern, that is a materially different factual and legal theory from alleging that I excavated or altered the drainageway. IV. The county already investigated the property and rescinded the original violation: The procedural history is important. This matter did not proceed directly from a complaint to the August 13 Notice. The County: 1. received the complaint; 2. issued the original May 19 Notice; 3. conducted a further physical inspection; 4. determined that the original Notice should be rescinded; and 5. notified me of that rescission in writing on June 3. The second Notice was issued only later, after consultation with a floodplain engineer. I respectfully request that the Board require Public Works to identify what new evidence arose after June 3 that justified reversing the determination reached after the County's inspection. The administrative record should include, at minimum, any: • inspection reports; • photographs; • field notes; • measurements; • correspondence; • engineering analyses; • hydraulic or hydrologic evaluations; • elevation data; • historical photographs; • surveys; • FEMA materials; • communications with the complaining neighbor; and • communications between the Engineering Division and floodplain personnel. If the second Notice rests upon a new engineering determination, that engineering determination should be produced and subjected to review. Simply stating that a floodplain engineer was "consulted" does not explain the factual or technical basis for requiring construction of a berm. V. The county's own field inspector characterized the existing condition as unobstructed: A subsequent County inspection was recorded on video, with consent of the County field worker. See attached unedited video link, Exhibit D, and transcription, Exhibit E. During that inspection, the County representative physically viewed the area at issue. While discussing the current condition of the drainage path, the inspector stated: "So now it's unobstructed." (6:45 of the transcript provided) During the same inspection he again stated: "So this is considered unobstructed." (8:30 of the transcript provided) Those statements are directly relevant to the August 13 Notice. The Notice expressly alleges: "As the property owner, you are required to remove the obstruction and all the debris from the drainage way." If the County's own inspector physically observed the location and considered the drainage path unobstructed, Public Works should be required to identify precisely what present physical condition constitutes the "obstruction" alleged in the Notice. This is not a semantic issue. Hawaii County Code § 27-37 specifically addresses an "encroachment and/or obstruction" (Exhibit O) that exists under, over, or through a drainageway, floodway, levee system, or watercourse. When one is observed or a complaint is received, Public Works is directed to investigate and give notice requiring removal of that encroachment or obstruction. The County's own 2024 audit describes the same enforcement process: following a complaint, Public Works investigates and, "if warranted," issues an NOV concerning a potential obstruction. The County therefore should identify the actual obstruction. An administrative order should not require me to "remove an obstruction" without telling me what the obstruction is, particularly when the County employee who physically inspected the property described the condition as unobstructed, and previously viewed the same area and determined there were no obstructions as evidenced by the June 3rd letter rescinding the previous NOV. VI. Public works is simultaneously directing me to construct or restore a substantial berm across the flood path The most troubling contradiction arose during that same recorded inspection. Although the inspector characterized the present condition as unobstructed, I was told that the Department expected me to restore a berm. The County representative stated: "We need to restore a berm." (2:03 of the transcript provided) When I questioned why a flood -caused change would have to be reconstructed, he stated: "We still have to restore it." (6:24 of the transcript provided) When discussing the expected height and extent of the berm, the inspector referenced the surrounding rock -wall elevation and indicated that the restored feature should: "Match the existing height and then put it to about the corner right there." The discussion indicated a height of approximately three feet. The inspector also made clear that this instruction came from others within the Department rather than from his own engineering determination: "I take their directives and I follow orders. I don't know what happens behind the scene." He further stated: "That's the engineer's. I'm not an engineer." I do not fault the field inspector for being candid about the limitations of his role. His statements are important precisely because they distinguish what he personally observed from what he had been directed to communicate. What he personally observed was an area he characterized as unobstructed. What he was instructed to communicate was that a substantial berm should nevertheless be reconstructed across the area. That conflict requires an explanation. To include how constructing a berm that was never there in the first place, which will be required to be the same height as the rock wall along with a massive tree over 50 ft in height, that was knocked out by the Kona Low flood is supported by an engineering analysis. VII. The 2024 county audit describes the owner's obligation as maintaining drainageways to carry stormwater and removing obstructions The County of Hawaii Office of the County Auditor addressed private drainageways directly in its November 2024 Performance Audit of the Department of Public Works — Bridge and Culvert Maintenance, Report No. 2024-03. Under the heading "Private Property Owner Obligations," the Auditor explains that HRS § 46-11.5 requires channels, streambeds, streambanks, and drainageways to be maintained "to carry off storm waters" and for debris to be removed to prevent public nuisances. The report states that private property owners are responsible for upkeep of privately owned drainageways and that the County can enforce that obligation. The Auditor then discusses HCC § 27-37. That provision addresses an encroachment or obstruction in a drainageway and directs Public Works to investigate and give notice requiring its removal. The audit describes the enforcement process this way: a complaint is investigated and, "if warranted," an NOV may be issued concerning a potential obstruction. The audit gives examples of private -property encroachments including fences, sheds, and vegetation interfering with a waterway. This makes the directive being imposed upon my property difficult to reconcile with the County's own stated drainage policy. I am willing to comply with a lawful obligation to maintain a private drainageway and remove debris or an actual obstruction. But that is not what I am presently being directed to do. The County's own inspector described the present condition as unobstructed, while Public Works is directing me to construct or reconstruct an approximately three-foot physical barrier across the route through which floodwater traveled. The distinction is fundamental: Maintaining a drainageway so stormwater can pass is not the same thing as constructing a substantial berm for the purpose of forcing stormwater away from the path it actually took. VIII. The proposed berm would redirect future floodwater back across my property: The actual Kona Low floodwater followed the lower bedrock area. The approximate three- foot berm Public Works has directed me to reconstruct would cross that route and would have the intended effect of preventing future water from continuing through the same location. In other words, the County is not merely asking me to "restore" dirt. It is asking me to construct a feature whose purpose and effect would be to redirect floodwater. That distinction matters because the redirected water has to go somewhere. In this instance, it would be directed back toward another portion of my property, in the vicinity of property that already suffered flood damage. Before requiring a private landowner to construct a feature designed to redirect substantial stormwater, the County should provide competent engineering evidence showing: • the expected direction of redirected water; • the expected depth and velocity of the water; • the design storm being considered; • whether the berm would increase upstream water elevations; • whether it would increase erosion; • whether it could affect my residence or agricultural structures; • whether it could affect neighboring properties; • whether fill is necessary; • whether permits are required; and • whether the work complies with Chapter 27. No such engineering analysis has been provided to me. IX. The county's position regarding FEMA has changed: There have also been materially inconsistent representations concerning FEMA. During a telephone conversation, I was told by Brad Uemoto that the drainage needed to be returned to what the FEMA map required or showed. A County employee subsequently came to my property and similarly communicated that the drainage needed to be returned to the drainage path on record. I disputed those statements because the FEMA-designated drainage described to me did not exist in that location. The Public Works subsequently changed his position. Mr. Uemoto later informed me in writing that: the area in question is "not a recognized FEMA flood channel." (Exhibit M) Instead, he characterized it as a general localized drainage path that ultimately feeds into a FEMA-designated area farther downslope. That distinction is significant. If there is no FEMA-designated channel at the location Public Works is requiring me to reconstruct, then the County should identify exactly what map, survey, historical record, engineered drainage plan, easement, or other authoritative document establishes the location and configuration of the "original" drainageway it now requires me to reproduce. The County should not invoke a purported FEMA drainage location to justify corrective work and later acknowledge that no such FEMA-designated channel exists at the location. X. The County Code requires current flood conditions to be addressed through the map -revision process when physical changes affect flood -hazard boundaries; it does not direct a property owner to recreate an outdated condition with fill: Hawaii County Code § 27-16 (Exhibit L) expressly addresses what is to occur when physical changes affect flooding conditions. Section 27-16(5) provides that whenever base flood elevations increase or decrease, or physical changes result in a mappable alteration of the boundaries of a special flood -hazard area, the floodplain administrator must notify FEMA by submitting technical or scientific data through the Letter of Map Revision process. The Code states that this is necessary so that floodplain-management requirements are based upon current data. That provision is directly relevant to the County's position in this case. Public Works has acknowledged that the Kona Low was an extraordinary event and that the physical condition of the drainage area changed. If the County contends that those physical changes materially changed flood elevations or the mapped flood -hazard boundary, the Code establishes a procedure for evaluating and documenting those current physical conditions through FEIVIA's map -revision process. The Code does not state that the proper response to changed flooding conditions is simply to require a private property owner to place fill on the land in an attempt to recreate a prior topographic condition, or that the "portion of the ditch on your property be returned as reasonable as possible to its condition prior to the Kona Low flooding event" as Brad Uemoto stated in his September 1st letter. (Exhibit M) Section 27-16(7) (Exhibit L) is even more specific when a watercourse is to be altered or relocated. It requires that the flood -carrying capacity of the altered or relocated watercourse be maintained. In riverine situations, the State and adjacent property owners must also be notified. And when a proposed alteration or relocation would significantly change the base flood elevation or result in a mappable alteration of a special flood -hazard boundary, technical and scientific information must be submitted to FEMA through the Conditional Letter of Map Revision process. Importantly, § 27-16(7) further provides that work affecting or impacting the floodplain under such a proposed alteration shall not begin until FEMA has approved the Conditional Letter of Map Revision. This raises a serious issue with the remedy Public Works has communicated to me. The County is directing me to reconstruct an approximately three-foot berm across the route actually taken by the Kona Low floodwater. The purpose of that berm would necessarily be to prevent or redirect water from continuing along that route and to force it toward another portion of my property. That is not simply "maintenance." It is an affirmative physical alteration affecting the path of floodwater. If the County believes the Kona Low physically changed flooding conditions in a manner that affects the applicable flood -hazard mapping, § 27-16 provides a procedure for updating or revising the flood information so that future floodplain management is based on current data. The County should explain why it is instead requiring me to physically recreate what it believes was a prior drainage configuration. In the picture provided by Brad Uemoto in the September 15Y letter, (Exhibit F), there is a section marked "AREA THAT NEEDS RESTORATION", while Hawaii County Code directly opposes that directive: The County Code Places Significant Restrictions on the Use of Fill That Would Block or Redirect Floodwater Hawaii County Code § 27-18(c) (Exhibit P) specifically regulates encroachments, including fill, within flood -hazard areas. Within a regulatory floodway, encroachments including fill are prohibited unless a Hawai'i-licensed professional civil engineer certifies, with supporting data, that the encroachment will cause no increase in base flood elevations during the base flood discharge. Within other special flood -hazard areas, the Code likewise prohibits filling that would result in the blockage or impediment of flow or that would induce or aggravate flooding unless a licensed professional civil engineer provides the required certification and supporting data. These provisions make the County's proposed remedy particularly concerning. Public Works is simultaneously: • alleging that an "obstruction" must be removed; • acknowledging through its field inspector that the present route is "unobstructed"; and • directing me to construct or restore a substantial berm across the route through which floodwater actually traveled. The County should therefore identify whether the proposed berm constitutes "fill" or an "encroachment" under Chapter 27 and, if so, what engineering certification establishes that it will not impede flow, increase base flood elevations, or induce or aggravate flooding. The Code Focuses on Current Conditions, Not Simply Reconstructing a Historical Map or Drainage Condition Section 27-16 (Exhibit L) expressly explains why the map -revision process exists: following confirmation of physical changes affecting flooding conditions, floodplain-management requirements are to be based upon current data. The Code also directs the floodplain administrator to interpret flood -hazard boundaries when there is an apparent conflict between a mapped boundary and actual field conditions. Accordingly, if actual conditions following the Kona Low differ materially from older mapping or assumptions regarding the drainage route, the County Code contemplates evaluation of those present conditions and, where the statutory criteria are met, a FEMA map -revision process. I have not located any provision in Chapter 27 stating that a property owner must import or place fill solely to force a naturally changed flood path back into the configuration shown on an older map or assumed to have existed before a major flood. To the contrary, Chapter 27 requires maintenance of flood -carrying capacity, recognizes actual field conditions, establishes formal procedures for revising flood information following physical changes, and restricts fill that would block, impede, or aggravate flooding. I therefore respectfully request that the Board require Public Works to explain: 1. Whether it contends that the Kona Low caused a change in base flood elevations or a mappable alteration of the flood -hazard area; 2. If so, whether the Floodplain Administrator has initiated the Letter of Map Revision process required by § 27-16(5), within the six-month time period that the code states; (Exhibit L) 3. Whether construction of the proposed berm constitutes an alteration or relocation of a watercourse under § 27-16(7); (Exhibit L) 4. Whether the proposed work would significantly change base flood elevations or flood -hazard boundaries; 5. Whether a Conditional Letter of Map Revision is required before such work occurs; 6. Whether the proposed three-foot berm constitutes "fill" or an "encroachment" under § 27-18; (Exhibit P) 7. What licensed engineering analysis establishes that the berm will not block or impede flow, increase flood elevations, redirect floodwater in a hazardous manner, or induce or aggravate flooding; and 8. What specific section of the Hawaii County Code authorizes Public Works to require me to reconstruct a historical drainage configuration with fill rather than evaluate the current flooding conditions under the procedures established by Chapter 27. Chapter 27 does not simply instruct the County to force the land back into an assumed historical condition after physical changes affecting flooding. It expressly recognizes actual field conditions, requires FEMA notification and map revision when qualifying physical changes alter flood elevations or flood -hazard boundaries, requires maintenance of flood - carrying capacity when watercourses are altered, and restricts the use of fill that would block, impede, or aggravate flooding. XL The county's own photograph appears to show an open area rather than the alleged obstruction Public Works sent me a photograph on September 1St (Exhibit F) identifying the area it wanted addressed. That photograph does not, in my view, show a blocked drainageway. It shows an open area. Moreover, the location that Public Works has indicated should be restored would cause the water to change course, and flow up bedrock that is higher than the path it took during the Kona Low. In the picture, you can see where someone poured water on the rock in the direction Brad Uemoto is trying to redirect the now of water to, and the water is draining DOWN into the path that the Kona Low stormwater path took. Furthermore, the County's "Ditch Area" exhibit merely labels an area as needing "RESTORATION" and points "TOWARDS THE DITCH." The exhibit itself does not establish the historical height, dimensions, composition, or hydraulic function of any alleged berm. A label added to a photograph is not a survey or engineering analysis. If the County contends that a three-foot embankment previously existed, the County should produce reliable evidence establishing: • its precise location; • its elevation; • its width; • its height; • its composition; • the date it existed; • its drainage function; and • how the County determined those characteristics. I have attached two photos of that area before the Kona Low flood that show no "berm" existed, and that the bedrock is still visible in sections. (Exhibit G/G-2) I have also attached pictures of that area they day after the flood. (Exhibit H/H-2). XII. The County should distinguish between natural flood erosion and an owner -created alteration: The August 13 Notice itself acknowledges: "a tree had fallen over and eroded a ditch embankment." That event was caused by the Kona Low. There is a significant distinction between: A. an owner excavating or grading land in a manner that alters drainage; and B. an extraordinary flood naturally eroding an embankment and establishing or enlarging a flow path. The County has not identified a code provision establishing that every natural alteration caused by an extraordinary flood automatically becomes an illegal "altered drainage way" attributable to the landowner. If such a provision exists, the County should identify it. Nor has Public Works identified a code provision authorizing it to require a landowner to place substantial fill into a post -flood flow path solely to recreate its estimated pre -flood topography. That distinction is particularly important where the proposed work may itself redirect future floodwater. Furthermore, if the County does identify such provision, the part of the rock wall and tree that fell over in the Kona Low Flood exists on my neighbor's property, and needs to be addressed with them. XIII. Post -flood excavator activity by the complaining neighbor must be considered: There is another material factual issue. On April 7th, 2026, I was made aware that Stanley, the neighbor initiating complaint, had used an excavator to alter the path of the floodway drainage. Stanley, entered my property with the excavator and attempted to alter or block the path through which the floodwaters had traveled. I did not authorize that work. `Exhibit I', shows pictures of the wall he built, highlighted in yellow, and `Exhibit N', is a video I started after I had already started taking the wall apart by hand. During the recorded inspection, I specifically raised this issue with the County representative. He responded: "I have no knowledge of what he was doing on your property." That is significant. If Public Works intends to determine responsibility based upon the physical condition observed after the Kona Low, the County cannot reasonably attribute all post -flood alteration to me without investigating the acknowledged allegation that another individual entered the same area with excavation equipment after the flood. The complainant's post -flood activity is particularly relevant because the County's Notice relies upon an alleged altered drainageway. I respectfully request that the Board require Public Works to disclose whether it investigated: • Stanley's presence on my property; • his use of an excavator; • what work he performed; • whether he moved rocks, soil, or other material; • whether the County possesses photographs taken before and after that work; and • whether his activity contributed to any condition the County now attributes to me. I had to spend six hours of my own time, missing work which resulted in substantial financial loss at my business, clearing the wall he created with his excavator, by hand and with a pry bar. Stanley did exactly what this NOV issued to me is claiming I did, and is also now retaliating with the help of the Public Works department to redirect damaging flood waters back to my property. Nobody, including myself wants flood waters coming on to their property, but that doesn't mean every property above or to the side is required to create conditions to keep flooding isolated to their property. That is not how the Hawaii County Code handles floods, and it is not reasonable to expect that it would. XIV. The County should identify the engineering basis for constructing a three-foot berm: This issue is especially important because construction of a berm is not an insignificant maintenance activity. A three-foot berm intended to redirect stormwater is a flood -control feature. Before compelling its construction, the County should identify the licensed engineer responsible for the directive and produce that engineer's analysis. The field inspector expressly stated that he was not an engineer and was following departmental instructions. Therefore, the underlying engineering decision should be part of the record. The Board should require Public Works to identify: Who designed the proposed remedy? Who determined the berm should be approximately three feet high? Who determined its location? What calculations were performed? What storm event was modeled? Where will diverted water go? What effect will the berm have upon upstream flood elevations? What effect will it have upon adjoining properties? What evidence establishes that the berm previously existed in that configuration? What provision of County Code authorizes or requires this particular corrective measure? Without those answers, I am effectively being ordered to construct a flood -diversion structure based on an undocumented verbal directive. XV. The proposed remedy appears inconsistent with the purpose of HCC § 27-37 HCC § 27-37 provides Public Works authority to investigate an existing encroachment or obstruction in a drainageway and require the owner to remove it. That makes sense from a flood -safety standpoint. An obstruction can block water, divert it, increase upstream elevations, and contribute to damage. But the remedy Public Works has communicated to me appears to operate in the opposite direction. The County's position can presently be summarized as follows: The Notice: There is an obstruction; remove it. The County's field inspector: The present drainage condition is unobstructed. Public Works' corrective directive: Construct or restore an approximately three-foot berm across the route actually taken by the Kona Low. Those three positions cannot simply be assumed to be consistent. The Board should require Public Works to reconcile them. XVL The 2024 audit makes the contradiction particularly important: The County Auditor's 2024 report did not merely discuss bridges. It specifically addressed the problems created when drainageways on private property become obstructed. The audit states that channels, streambeds, streambanks, and drainageways must be maintained so they can carry stormwaters, and that debris should be removed to prevent public nuisances. The audit specifically cites § 27-37's requirement that Public Works investigate alleged encroachments and obstructions and, where warranted, direct their removal. It also discusses actual examples in which waterways were impaired by private - property encroachments such as fences, sheds, and vegetation. The County's own recent audit therefore establishes a straightforward principle: Drainageways should remain capable of carrying stormwater, and physical encroachments or obstructions interfering with that function are subject to removal. Yet Public Works is directing me to install or restore a substantial physical feature across what I contend is the actual stormwater route. I respectfully request that the Board require Public Works to explain how constructing such a barrier is consistent with the drainage - management principles identified by the County Auditor and § 27-37. XVIL The county's own audit identified deficiencies in DPW procedures, roles, communication, and review: The 2024 County Auditor report (Exhibit J) also identified several broader problems within Public Works relevant to the need for careful review here. Among the audit's formal findings were: • Lack of Culvert Policies and Procedures; • Undefined Roles and Responsibilities; • Lack of Interdepartmental Communication; and • a recommendation to establish a process for Independent Review. I do not contend that those findings alone prove that the County's decision in my case is incorrect. They do, however, demonstrate why the Board should require a clear administrative record showing who made this decision, what engineering evidence was relied upon, and what code provision authorizes the remedy being demanded. The recorded inspector's statement that he follows directives but does not know what happens "behind the scene" illustrates precisely why clarity regarding responsibility and engineering decision -making is necessary in this case. XVIII. The County's Kainaliu Diversion Flood Control System and its maintenance must be considered before attributing the drainage condition to my property: There is an additional issue that I believe is highly relevant to this appeal but which does not appear to have been considered in the Notice of Violation: the County's own Kainaliu Diversion Flood Control System located upstream of the Kainaliu community and in the immediate vicinity of my property. This is not an informal or naturally occurring drainage feature. Historical County and federal records establish that an engineered flood -diversion system was constructed above Kainaliu specifically for the purpose of intercepting, controlling, and redirecting stormwater. County historical planning documents describe the Kainaliu flood -control improvements as "diversions above the community" intended to transport overland flood flows, together with channels in the upper coffee belt intended to collect surface waters originating above agricultural lands and community centers and convey those waters through defined routes. FEMA subsequently recognized the Kainaliu Diversion Flood Control System as an existing engineered flood -control project. FEMA's 2017 Flood Insurance Study for Hawaii County states that historically serious flooding in Kainaliu was alleviated through flood -control projects including the Kainaliu Diversion Flood Control System and identifies four diversion structures associated with that system. FEMA reports design capacities of approximately 100, 130, 300 and 175 cubic feet per second for those four structures and states that the system was designed in relation to the one -percent -annual -chance flood - which Brad Uemoto stated the Kona Low flooding was during a phone call. This information is particularly relevant geographically. My property is TMK (3) 7-9-009:040. County property records identify multiple parcels on the same 7-9-009 tax -map plat as County -owned property associated with the "KAINALIU DIVERSION SYSTEM," including: TMK 7-9-009:044 TMK 7-9-009:045 TMK 7-9-009:047 TMK 7-9-009:049 County Council records independently identify TMK 7-9-009:045 as "KAINALIU DIVERSION SYSTEM, HONUA`INO 1, NORTH KONA." Thus, County -owned flood -diversion infrastructure is not merely somewhere in the general Kainaliu area. County records identify diversion -system property on the same tax -map plat as my property, and is directly uphill of my property. My Personal Observations Regarding Maintenance of the Diversion I have lived at this property for approximately three years and have personally observed the condition of the diversion system during that period. Throughout those three years, I observed substantial vegetation and overgrowth in and around the diversion area. Based upon my own direct observations, I did not observe the diversion being cleared or maintained during that period. The first time I personally observed the County clear the overgrowth was in July 2026, shortly before the issuance of the August 13, 2026 Notice of Violation that is the subject of this appeal. I recognize that my personal observations alone do not establish the County's complete maintenance history. There may have been maintenance activity of which I was unaware. For that reason, rather than asking the Board simply to accept my observations as proof of the County's maintenance history, I respectfully request that Public Works produce its maintenance records for the relevant Kainaliu Diversion structures and channels. Those records should establish objectively when the diversion was inspected, cleared, maintained, repaired, modified, or otherwise serviced. The timing is especially relevant because the County is now attempting to determine why floodwater traveled where it did during the Kona Low and is attributing the resulting downstream condition to my private property. The Condition of the County's Upstream Diversion Could Be Material to the Flooding on My Property The purpose of an engineered flood -diversion system is to affect the movement of stormwater. Accordingly, the condition and operation of that system are potentially material to determining the quantity, direction, velocity, and discharge location of floodwater reaching downstream properties. I am not asserting without an engineering analysis that the Kainaliu Diversion System caused the Kona Low flooding on my property. I am asserting that it would be unreasonable to determine the historical or proper drainage pattern on my property without first determining what effect the County's own upstream flood -control infrastructure has upon the water reaching it. This is especially important where the County is now proposing that I construct or restore an approximately three-foot berm for the purpose of redirecting future water away from the route actually taken during the Kona Low. Before requiring that action, the County should determine what water is being intercepted and redirected upstream by its own flood -control infrastructure and where that diverted water is intended to discharge. This Raises an Important Question Regarding the County's Own Maintenance Obligations The County's 2024 Auditor report is particularly relevant. The audit discusses the importance of maintaining drainage infrastructure so that it remains capable of carrying stormwater and specifically discusses the consequences of vegetation, debris, encroachments, and other conditions that interfere with drainage. The same report emphasizes the responsibility of private property owners to maintain privately owned drainageways and explains Public Works' authority to investigate and require removal of encroachments and obstructions. However, the same principle should necessarily require consideration of the condition of County -owned flood -control infrastructure upstream of the private property being cited. It would be fundamentally inconsistent to require a private landowner to maintain a downstream drainageway free of obstructions while failing to consider whether County -owned infrastructure specifically constructed to control that same area's floodwater was itself affected by substantial vegetation or other maintenance conditions. After the Kona Low floods, I called the County Public Works, and went in person, requesting the maintenance records of the Kainaliu Diversion. My request was denied both times, and I was told, "The County clears them on a regular basis;" despite never seeing them cleared. My personal observations therefore raise a factual question that can easily be resolved through County records: When was the Kainaliu Diversion System above my property inspected and maintained during the three years preceding the Kona Low, and what was its condition when the Kona Low occurred? The July 2026 Clearing Is Particularly Relevant The timing of the July 2026 clearing deserves specific consideration. For approximately three years, I personally observed substantial overgrowth in the diversion area and did not observe it being cleared. Then, in July 2026, I personally observed the diversion being cleared. The County subsequently issued the present Notice of Violation on August 13, 2026. 1 respectfully request that the County identify: 1. Who ordered or performed the July 2026 clearing; 2. The exact date the work occurred; 3. What prompted the work; 4. Whether it was routine maintenance or performed in response to a complaint, inspection, flooding concern, or other event; 5. The condition of the diversion immediately before it was cleared; 6. Whether photographs were taken before, during, or after the work; 7. What vegetation, debris, sediment, rocks, or other material was removed; 8. Whether the capacity of the diversion was evaluated before or after clearing; 9. Whether Public Works determined that the pre -clearing condition affected the diversion's ability to carry or redirect stormwater; and 10. Whether the July 2026 work altered the direction, capacity, or discharge of stormwater from the diversion system. These records are relevant evidence, particularly because they concern County flood - control infrastructure immediately upstream or in the vicinity of a property against which the County is simultaneously pursuing drainage enforcement. The County Should Establish the Intended Discharge Path of Its Diversion System There is another fundamental question that should be answered before I am ordered to construct a berm: Where is the water collected by the Kainaliu Diversion System supposed to go? The County should be able to identify the engineered drainage path downstream of each relevant diversion structure. If the system intercepts stormwater above Kainaliu and redirects that water, the County should identify: the relevant diversion structure; • its drainage basin; • its design capacity; • its intended discharge location; • the downstream route of the diverted water; • whether that route crosses or approaches my property; • whether the route has changed since the system was originally constructed; • whether subsequent County work has modified it; and • whether the Kona Low exceeded the design capacity of the relevant structure. This information is essential to determining whether the water that crossed my property during the Kona Low was simply following an alleged historical private drainage ditch, as Public Works presently suggests, or whether the location and quantity of that water were also affected by County -engineered upstream flood -control infrastructure. The County Should Not Examine My Property in Isolation The County's present approach appears to examine a small downstream portion of my property in isolation. But drainage does not begin at my property line. The County itself constructed a flood -control system above Kainaliu for the express purpose of controlling the movement of stormwater. County records identify multiple diversion -system parcels on the same tax -map plat as my property. Before Public Works orders me to construct a substantial berm to redirect future floodwater, the County should examine the entire drainage system, including its own upstream infrastructure. Especially since it is suppose to divert flooding up to a "100-year event". The County should not require a private property owner to manipulate downstream floodwater without first accounting for how the County itself manipulates that same water upstream. Until these questions are answered, I respectfully submit that the County has not established a sufficient factual or engineering basis to attribute the post -Kona Low drainage condition solely to my property or to require me to construct a berm redirecting future floodwaters. XIX. There is no apparent benefit or motive for me to have created the alleged condition: Although motive is not necessary to resolve this appeal, the circumstances further undermine the allegation that I intentionally altered the drainageway. The disputed location is below my home and agricultural structures. The Kona Low caused damage to my own property, that was inspected by FEMA and deemed eligible for financial compensation. If I had deliberately intended to manipulate stormwater to protect my property, redirecting it below the structures I would be trying to protect would accomplish nothing. Conversely, the remedy Public Works is now demanding would redirect stormwater away from the path it actually took and toward another portion of my property. That creates a real safety concern for me. I should not be required to place my own structures or property at increased flood risk merely because Public Works believes an estimated pre -flood embankment should be recreated, particularly without a supporting hydraulic analysis or proof that an embankment even ever existed, when it did not. XX. I am not refusing to maintain a private drainageway: I want the Board to understand my position clearly. I am willing to remove debris or an actual encroachment that unlawfully interferes with drainage. My objection is much narrower: Public Works has not established that I created the alleged violation, has not clearly identified the present obstruction, and is directing me to construct a substantial berm across an actual flood -flow path without providing the engineering or legal basis for doing SO. XXL REQUESTED RELIEF For all of the foregoing reasons, I respectfully request that the Board of Appeals: 1. Reverse and rescind the August 13, 2026 Notice of Violation. 2. $250 compensation refunded back to me. Brad Uemoto was made aware of September 6' that the NOV did not state a violation according to County Code, and was given time to rescind the order. I am requesting $250 to compensate having to file an appeal to a NOV when there was no violation in the NOV stated. What was stated was "Exclusions" to what would be considered a violation under other statutes of Chapter 10. 2. Grant such additional relief as the Board determines to be appropriate. 3. If an appeal to the August 13`h NOV is denied, I request the following so that I may follow up with a Judicial Review under HRS § 91-14. 1. Whether the Public Works Department contends that the Kona Low caused a change in base flood elevations or a mappable alteration of the flood -hazard area; 2. If so, whether the Floodplain Administrator has initiated the Letter of Map Revision process required by § 27-16(5), within the six-month time period that the code states; (Exhibit L) 3. Whether construction of the proposed berm constitutes an alteration or relocation of a watercourse under § 27-16(7); (Exhibit L) 4. Whether the proposed work would significantly change base flood elevations or flood -hazard boundaries; S. Whether a Conditional Letter of Map Revision is required before such work occurs; 6. Whether the proposed three-foot berm constitutes "fill" or an "encroachment" under § 27-18; (Exhibit P) 7. What licensed engineering analysis establishes that the berm will not block or impede flow, increase flood elevations, redirect floodwater in a hazardous manner, or induce or aggravate flooding; and 8. What specific section of the Hawaii County Code authorizes Public Works to require me to reconstruct a historical drainage configuration with fill rather than evaluate the current flooding conditions under the procedures established by Chapter 27. 9. All complaints received concerning my property. 10. All correspondence with the complaining property owner. 11. All inspection reports concerning my property. 12. All photographs and videos taken by County personnel. 13. All notes made by Brad Uemoto, Brenton Calderon, Alan Thompson, the floodplain engineer, and any other County employee involved. 14. The basis for the June 3 decision rescinding the first NOV. 15. All new evidence obtained after June 3 that caused Public Works to reverse that determination. 16. All engineering analyses concerning the drainageway. 17. All calculations concerning the proposed berm. 18. All FEMA maps or materials relied upon by County personnel. 19. Any historical photographs, plans, surveys, topographic information, or elevation data establishing the alleged original embankment. 20. All communications between Public Works personnel concerning the decision to reissue the NOV. 21. All evidence that I performed excavation, grading, filling, or alteration. 22. All evidence concerning post -flood excavation work by the complaining neighbor. 23. The original engineering plans for the Kainaliu Diversion Flood Control System relevant to this drainage basin; 24. Maps identifying all four diversion structures and their respective drainage and discharge paths; 25. Engineering plans, surveys, easements, and maps associated with County -owned Kainaliu Diversion System parcels 7-9-009:044, :045, :047 and :049; 26. Work orders, invoices, contracts, photographs, employee records, or other documentation concerning the inspection and maintenance for the relevant diversion structures for at least the three years preceding the Kona Low through the present; 27. Work orders, invoices, contracts, photographs, employee records, or other documentation concerning the July 2026 clearing I personally observed; 28. Records showing the condition of the diversion immediately before and after that clearing; 29. Records of any repairs, reconstruction, enlargement, excavation, clearing, modification, or other work to the Kainaliu Diversion System from approximately 2014 through the present; 30. Any hydrologic or hydraulic analysis showing how the Kainaliu Diversion System affects stormwater reaching TMK 7-9-009:040; 31. The designed downstream discharge route for the diversion structure relevant to my property; 32. Any analysis performed after the Kona Low concerning whether the relevant diversion structure exceeded its design capacity or otherwise affected the floodwater reaching my property; and 33. Any investigation Public Works performed into the condition or performance of its own Kainaliu Diversion System before determining that corrective action should instead be imposed upon my private property. Respectfully submitted, Erika Empey P.O. Box 1172 Captain Cook, Hawaii 96704 TMK: (3) 7-9-009:040 Date: Signature: Exhibits: Exhibit A — June 3, 2026 Email rescinding previous violation dated 5/19/2026. Exhibit B — May 19, 2026 Notice of Violation. Regarding Stockpiling/Drainage. Exhibit C — August 13, 2026 Notice of Violation. This establishes that the County says a tree eroded the embankment, cites §10-3(b)(6), demands rebuilding, and simultaneously orders removal of an "obstruction." Exhibit D — Full County inspection video. https://drive.google.com/file/d/lVuHyPiu6yiJP cwpiolf8VhBjargYrlu/view?usp=drivesdk Exhibit E — Full video transcript. Exhibit F — County's "Ditch Area" photograph. The document itself labels the area as needing restoration toward the ditch but does not provide elevations or engineering dimensions. Exhibit G/G2 — Photos before the Kona Low showing no previous berm existed. Exhibit H/112 —Photographs of the actual Kona Low flood path. (A video of the flood path is also under Exhibit N) Exhibit I — Evidence concerning Stanley's excavator activity, if you have photographs, videos, witnesses, texts, or other records. Exhibit J —2024 Performance Audit of the Department of Public Works — Bridge and Culvert Maintenance Exhibit K — HCC §10-3(b)(6). This is important because the actual provision appears under "Exclusions" and describes excavation that does not alter drainage; it is worth giving the Board the actual section rather than relying on the NOV's description of it. Exhibit L — HCC §27-16. Exhibit M — Brad Uemoto's September 1st, clarification email. Exhibit N — April 81" video — showing where Stanley, the neighbor making the complaint, used his excavator to build a wall on my property to divert future flood water. https://drive.goog le.com/file/d/l 9D04scCPdpLOIKzgn8RWWWfSf60q LfVj/view?usp=drivesd k Exhibit O — HCC § 27-37 Exhibit P — HCC § 27-18