Posted 4/25/2024

Aloha,

Coco Palms and the developers interest in utilizing the State land acreage (two revocable permit parcels and a large coconut grove that would add 14.5 acres to the resort’s 22+ acres of fee simple land) will be heard by the Board of Land and Natural Resources (BLNR) in Honolulu, April 26, 2024. BLNR will also consider an application filed by a non-profit Kauai organization, I Ola Wailuanui, who plan to restore and develop the state lands into a historic public site. The issue before the Board will be whether or not to allow state lands to enhance and support Reef Capital Partner’s RP21 Coco Palms, LLC 350 room resort development. They want the state land to expand the foot print of the new resort hotel they plan to build at the former Coco Palms site.

Friends of Mahaulepu filed strong testimony in support of I Ola Wailuanui’s plan to develop a public site that features and develops the historic properties of these lands, once home to and the seat of the Hawaiian royalty on Kauai. The testimony we filed on behalf of our members to preserve and protect the historic features on the state lands, its environmental health, the Wailua River and the Wailua Beach Park and ocean is below in two separate emails to BLNR. There have been several rather egregious irregularities in the way public officials have dealt with the latest in a string of would be developers, which we invite you to take the time to read as our testimonies below contain facts that all residents should be aware of.

If you want to watch the meeting, click the link below:

Link to watch Board of Land and Natural Resources Coco Palms hearing tomorrow.
Agenda Item D1, likely to be heard after 10:00 am.

If you want to participate and testify, watch the YouTube broadcast and after the Chair announces Agenda Item D1, call 1-253-205-0468 and enter meeting ID #817 0609 2300.

We anticipate that many will testify in favor of the non-profit I Ola Wailuanui. Some of us will be there in person.

The following link includes recent Hawaii News Now coverage on the flooding experienced at the Coco Palms site.

Link to watch Hawaii News Now coverage of flooding at historic Coco Palms

FOM Testimony 1:

Aloha Dawn N. S. Chang,
Director Department of Land and Natural Resources and
Michael Cain, Administrator Office of Conservation and Coastal Lands

When we last appeared before the Land Board there were questions asked of  representatives for RP21 Coco Palms, LLC, the current “would be” developer of a 350 room resort hotel on the site of the former Coco Palms resort, destroyed by hurricane Iniki on September 11, 1992. RP21 representative/owner John Day told the Land Board that the use of state lands was not essential to their “restoration of the historic site”. When asked if the coconut palms were an important historic feature of the site, the developer’s answer was equivocal, claiming to not even realize the site was both a recognized property with features of historic significance, fish pond and numerous burials/iwi kupuna. The property is also included on the National Historic Registry. The developer’s responses December 15, 2023 suggested that the removal of the coconut palm trees was something done in the recent past as Mr Day suggested that the developer now intends to be a good steward and do things right to preserve this significant historic site.

In sharp contrast to that assertion, I invite you to review the inspection report from the Department of Health, released just 5 days after the Land Board last met to consider the Coco Palms development. In its report, you will see numerous photos taken by the DOH site inspection team. There are also development maps offered by RP21 Coco Palms, LLC that identify intended development on state land despite their claim that the state lands were not “essential” to the restoration plans. Of great concern, however, were the developer’s submittals marking numerous coconut palms with a red X to indicate more coconut palms intended for removal as of November 2023. See pages 9-11 in the DOH report. This is well described as well as other violations which I believe you will find of interest since the report was prepared after an unannounced inspection by a sister State Agency. There are also photographs of areas that have been cleared of any trees earlier with pictures of root balls and stumps. DOH photographs also document the heavy ground disturbing equipment on site and the trailers and structures that were not admitted to when responding to Land Board Member question on December 15, 2023. Nearly one acre of vegetation remains on conservation land off Koki Road. It is not obvious that you would otherwise receive the report. Since it contains evidence of multiple environmental violations ongoing at the end of November 2023, during the DOB inspection, which you also addressed in your letter of April 19, 2023, we share the Hawaii Department of Health Clean Water Branch Complaint Inspection Report in the event you have not previously received this report.

Mahalo nui,

Bridget Hammerquist

FOM Testimony 2:

Friends of Maha’ulepu             friendsofmahaulepu.org                                   4/24/2024

Aloha Chair Dawn NS Chang and Members of the Board of Land and Natural Resources,

RE: Approve One or More Dispositions to Applicants RP21 Coco Palms LLC and/or I Ola Wailuanui, Inc. and/or Sale of Lease at Public Auction, or No Action for Parcel B, Wailua, Kawaihau, Kauai, TMK: (4) 4-1-003:017. Approve One or More Dispositions to Applicants RP21 Coco Palms LLC and/or I Ola Wailuanui, or No Action for Parcel C, Wailua, Kawaihau, Kauai, TMK: (4) 4-1-005:017.

Please accept this testimony offered on behalf of all the members of Friends of Maha’ulepu which include nearby residents of the historic Coco Palms site as well as more than 1,000 members who reside island wide. We strongly favor public access, use and disposition of the State lands which are on the agenda for consideration by the Board of Land and Natural Resources (BLNR) Friday, April 26, 2024.

Agenda item D1 could not have been presented in a more confusing manner. Staff have masterfully offered five potential options/actions by the BLNR for revocable permits on parcels identified as B (TMK: (4) 4-1-003:017) and C (TMK: (4) 4-1-005:017). Not only are these five options confusing but they are once again weighted to benefit RP21 Coco Palms, LLC because when the option gives use to I Ola Wailuanui, the 501c 3, an applicant for these lands, they always provide that I Ola Wailuanui will be subject to an easement right/co-sharing of the parcel with RP21 Coco Palms, LLC. The converse, however, is not true! When the use is to be approved for RP21 Coco Palms, LLC, it is not suggested that I Ola Wailuanui will have an easement right.

We strongly support and recommend that BLNR approve I Ola Wailuanui a one year month to month revocable permit (RP) of parcels B and C, an entity that is not in violation or under investigation for violation of any county, state or federal laws. Affording I Ola Wailuanui a one year month to month revocable permit will allow the BLNR to evaluate the public benefit derived from the proposed historic preservation of this sites ancient past and connection to Hawaiian royalty, a history that spanned hundreds of years. It only really operated as a resort hotel between 1972 and 1992. Even during that time, as one of the descendants children, Ivan Ako, stated in the Declaration, the hotel had a lot of problems with ground water flooding that required sump pump operation 24 hours a day, 7 days a week. (See Declarations filed in support of a Petition to Revoke the County Development permits).

Offered for your consideration and material to the public’s interest is a Kauai County Council Resolution adopted by a majority of Council Members in response to substantial public outcry and objection to any resort development at the former Coco Palms site because of significant infrastructure short comings; traffic, waste water, threats to endangered sea birds and endemic species, sea level rise and threat of county beach park and state land encroachment that will likely adversely impact this historic and revered coastal land and the quality of life for residents of Kauai. When Kauai County Council met, the clear wording of the Kauai County Resolution supports public versus commercial use for the State lands at issue, see May 2023 County Council Resolution here. Under the laws of our State and Hawaii Constitution, State lands are given a preference for public use. Consequently, while development permits are vested with the County for the fee lands, BLNR can and should support public use over commercial use of the nearby state lands. The BLNR is not obligated nor does the law support preferential treatment of a commercial enterprise over the public use and enjoyment of State lands especially those with significant historic roots.

This is especially true when it comes to Agenda Item D1 for Friday which was Agenda Item D6 in December 15, 2023. The developer’s representative, John Day, made it abundantly clear when he responded to questioning by the Land Board that the State lands were not essential or necessary for their development of a resort hotel on the former Coco Palms fee simple lands:

BLNR Meeting December 15, 2023 Agenda Item D6

01:22:00
Chair Chang asks “Are these three. Are these three State parcels are they critical to your development”.

John Day responds “They are not essential and itʻs fair to call it a development Chair, we think of it as a restoration of a property that is on the Hawaii Register of National of Historic Places and so we think of it as a restoration of a historic site but I understand but I understand your meaning when you refer to it as development. Yes we will restore the historic Coco Palms regardless of what happens with these three parcels, they are not essential to restoring the historic Coco Palms. You know that being said, they are valuable um to the public in terms of providing parking um to the public and access to the public which we will provide. But they are not essential to restoring the historic Coco Palms”

Chair Chang “My followup question. Have you represented to the County in your development plans that these parcels these three revocable these three parcels are part of your project?”

John Day “Well I mean, they are part of our site plan. Our hope is to be able to use these parcels as part of the restoration of the historic Coco Palms. They are not essential to the project. The project will move forward either way”.

Chair Chang “So since they have been on your site plans, if you do not get these three RPs does that jeopardize your approvals before the County?”

John Day “Iʻm not aware that it would”.

Chair Chang “One final question. You mentioned the historic, you were here to restore the historic Coco Palms. Itʻs not a development. The Coconut trees that were cut down, you understood that those were part of the historic property”.

Mauna Kea Trask interrupts “Chairman”

Chair Chang “Iʻm going to ask Mr Day. If he cannot answer the question Mauna Kea, thatʻs okay. Thatʻs okay but Iʻm going to ask Mr Day. Are you? Cause you are the principal now. You represented to us that you are going to steward these lands and that you, you are here, you are present and I appreciate that you are present. So I am going to ask you the question. Did you understand that the coconut trees that were cut down were part of the historic property and the historic character and nature of the property?”

John Day “Well thatʻs a, thatʻs a long conversation. Um”.

Chair Chang “Just yes or no?”

John Day “At the time the trees were cut down no one on or team, and I mean we had archeological monitors, right, people who had worked at SHPD for a couple of decades. You know. People who were very experienced and No one was aware the previous owner had put the property on the Hawaii register of historic places. So they were unaware. Cause remember we foreclosed in 2022. Thatʻs when we took over. The previous owner that we foreclosed on put the property on the historic register. With respect to those trees, we were unaware that it was on the Hawaii historic register.”

Ends 01:26:00
BLNR December 15, 2023

Absent BLNR approval of RPs for parcels B and C for I Ola Wailuanui, we strongly support and recommend no action by BLNR at this time because of the following irregularities that have casts a negative and biased pall on this process.

Historic Background

Coco Palms Ventures, LLC, a Delaware Corporation that purchased the fee simple lands of the former Coco Palms Resort in 2006 from PRII (Prudential) was the last entity named on the State lease for the coconut grove and the three State RP parcels under consideration. In December 2023, Coco Palms Ventures, LLC interest in the RP parcels A, B and C, were terminated by BLNR Action. The lease between the State and Coco Palms Ventures, LLC was assigned by Coco Palm Ventures, LLC to PRII who then assigned the lease to Coco Palms Hui, LLC. While BLNR approved the assignment, there was never a transfer of the lease and the RPs were never put in the name of Coco Palms Hui, LLC. As Mr Tsuji explained when BLNR met April 14, 2023 Coco Palms Hui, LLC, never produced/provided the tax clearance and other documents necessary to perfect the prior Board approval. The coconut grove lease is still in the name of Coco Palms Ventures, LLC, an entity whose Hawaii State registered status was terminated December 4, 2017. None of the existing Coco Palms entities have any relationship with Coco Palms Ventures, LLC. When Coco Palms Ventures, LLC (Ventures) experienced financial hardship and were unable to satisfy the terms of Prudential’s sale of Coco Palms to them, they returned a deed to Prudential in lieu of foreclosure. Thus, the prior BLNR approval of an assignment from Ventures back to Prudential who then was assigning their interest to Coco Palms Hui, LLC was never perfected: Russell Tsuji at 53:40 BLNR April 14, 2023

Not only did Coco Palms Hui, LLC fail to pay property taxes on the RP lands from 2017 to 2023, but as Alison Neustein reported April 14, 2023, she was sending out a Notice of Deficiency for failure to pay property taxes during the same interval on the State leased coconut grove land. See Alison Neustein’s comments at 58:00 in the above link.

This is where the irregularities began. Ms Neustein did not send the Notice of Deficiency to attorneys for Coco Palms Hui, LLC and I Ola Wailuanui, rather she directed the Notice of Deficiency to Mauna Kea Trask depriving I Ola Wailuanui a fair and equal opportunity to satisfy the deficiency. Rather, staff indirectly selected the applicant who would be allowed to cure the deficiency and ensure the State land parcels while ignoring I Ola Wailuanui’s application that had been filed at the same time in February 2023.

Reef Capital through its loan servicing entity Private Capital Group (PCG) initiated foreclosure proceedings against Coco Palms Hui, LLC and its operators Chad Waters and Tyler Green who had also signed a personal guarantee for the loan brokered to them by PCG representing 6 or 7 Reef Capital investors. When the foreclosure proceeding was conducted, it was conducted by PCG, an agent for the lender.

Coco Palms Hui, LLC challenged the foreclosure in the Appellate Court along with their loan broker Paul Honkavaaro. That challenge has been on appeal since 2022. RP21 received a commissioner’s deed to the fee parcels in the course of the foreclosure proceeding, leaving Chad Waters, Tyler Green and Coco Palms Hui, LLC with a foreclosure appeal as their only asset.

In March of this year, the Reef Capital Lenders agreed to release Chad Waters and Tyler Green from their personal guarantee of the loan to buy the fee property from Prudential. In return, Chad Waters and Tyler Green agreed to dismiss their appeal and the only entity still contesting the foreclosure against Coco Palms Hui, LLC is Mr Honkavaaro.

In the meantime, Coco Palms Hui, LLC has no assets and owns nothing in fee.

Friends of Maha’ulepu filed a Petition to Revoke the Coco Palms permits for violations of many of the County permit conditions. In April 14, 2023 BLNR meeting, Ms Neustein Exhibit E, which shows that all the building permits have expired, most as of June 27, 2023. The Planning Director’s report, admits that many of the development conditions have not been met but it was his recommendation that the Planning Commission not revoke the development permits.

The second major irregularity in this matter occurred at the Planning Commission hearing March 12, 2024 when Mauna Kea Trask produced a lease that he suggested to the Planning Commission was about to be signed by this Board.

See the AG “Approved as to form” lease which Ms Neustein was instrumental in obtaining and delivering to Mr Trask. This document was produced less than a month before our Petition to Revoke hearing. Ms Neustein was not identified on the agenda as someone the Commission would be addressing. She appeared at 4:00 pm after an all day proceeding before the Kauai County Planning Commission and went into an Executive Session without prior notice to the public. Friends of Maha’ulepu objected to her entry into the Executive Session and we were told that she was there to help the Planning Commission understand the workings of the BLNR. When the public was brought back into the hearing, it was clear the Executive Session discussion was about the lease and Commissioner Ako actually asked Ms Neustein on the record if it was possible that BLNR would not sign the lease that she and Mr Trask were representing as an “all but done deal”. She responded that she couldn’t imagine that happening as she hadn’t seen that before. The exchange between Planning Commission Ako and Ms Neustein occurred during the last hour. March 12, 2024 Planning Commission Hearing on Petition to Revoke Coco Palms development permits.

One big problem, the lease presented to the Kauai County Planning Commission is in the name of Coco Palms Hui, LLC, an entity that owns none of the fee lands. Consequently, their status is similar to that of I Ola Wailuanui, in that they are also not an owner in fee property adjacent to the State RPs or coconut grove. Unlike I Ola Wailuanui, they do not have a public interest in restoration of the property for its public and historic benefit. The former Coco Palms Hui, LLC, a bankrupt entity with no ownership interest in the lands adjacent to the State lands, would not likely be an entity to be awarded the State coconut grove lease. However, when Mr Trask and Ms Neustein presented the Unsigned Unapproved Alleged AG Lease to Coco Palms Hui LLC dated 02/13/2024, it sure muddied the waters on our Petition to Revoke Hearing. At the end of the hearing, the Planning Commission found that Friends of Maha’ulepu had no standing to bring the Petition to Revoke. We have since filed an Appeal of their Decision on our Standing and have also appealed the irregularity associated with Ms Neustein’s entry into the Executive Session. Please see the objection we filed to that irregularity which was filed prior to our Notice of Appeal.

Mahalo nui,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
Donate
friendsofmahaulepu.org
[email protected]
(808) 742-1037 home
(808) 346-1973 cell

Posted 3/25/2024

Aloha,

Also

Aloha,

FYI.

——– Forwarded Message ——–

Date:	Thu, 21 Mar 2024 18:29:53 -1000
To:	Michael Moule <[email protected]>
From:	Bridget Hammerquist <[email protected]>
Subject:	Request for Contested Case

Aloha Michael,

Please accept this email on behalf of the members of Friends of Maha`ulepu and the membership of Save Koloa which number more than 1,000 individuals keenly interested in the preservation of a clean and healthful environment of the south shore of Kauai. These Declarations (Silva, Kaohelaulii, Okinaka and Hammerquist) detail and confirm the traditional and cultural practices and interests affected by the development of TMK 4-2-8-14-32. Based on the interests of our members and constitutional rights to a clean and healthful environment which is being abridged with the development of a portion, Lot 1 of this TMK, we request a Contested Case Hearing before any grading or grubbing permit is reissued for the subject property.On March 22, 2022, Bryan Wienand, Public Works Civil Engineer V issued the grading permit, and the developer was charged a permit fee of $1,520,000. According to the permit, the developer paid 1% and covered a bond that insured the payment of his grading permit fee obligation. Under the provisions of the County’s Grading Ordinance, the grading permit expired and was void as of March 23, 2023. The public has continued to complain about the illegal grading of this site. Their complaints have been made to the Planning Commission and you have been in attendance at Planning Commission meetings where abundant public testimony was offered objecting to the use of explosives, disturbance of subsurface artesian springs and the habitat otherwise suitable for the blind cave spider and the blind amphipod who were identified and mapped on a property immediately adjacent with similar features: soil depth of less than 12 inches, primarily rocky soil, confirmed by Geolabs to have likely voids and mesocaverns (per their report filed with your office 2021) with at least 5 endangered species of endemic birds (Pueo, Koloa Duck, Nene as well multiple sea birds) on the subject parcel per US Fish and Wildlife Services. There are also burial mounds that were identified on the parcel by Cultural Surveys Hawaii with at least one of the Declarations (Silva, Kaohelaulii, Okinaka and Hammerquist) attesting to their relative buried on the site.

 

County Ordinance Section 22-7.13 Expiration of Permits specifically states that a grading permit “shall expire and become void one (1) year after the date of issuance”.

“(a) Every grading or grubbing permit shall expire and become void one (1) year after the date of issuance.

(b) Every grading or grubbing permit shall expire and become void unless the work permitted therein is started within six (6) months after the date of issuance, or if the work is suspended or abandoned at any time after the work is commenced for a period of ninety (90) days. Before the work can be recommenced, a new permit shall first be obtained to do so and the fee therefor shall be the fee as specified in Section 22-7.12. Permit fees for an expired permit shall not be refunded, even if no work has commenced.”

The expiration ordinance clearly states that if the one year is allowed to lapse without an extension, the permit is void and a new application must be filed with the payment of a new fee. The ordinance further provides that there will be no refund on the fee, if the permit lapses before the work is completed.

 

In July 2023, the Planning Department referred a similar lapse in the tentative subdivision approval granted August 10, 2021 that lapsed August 10, 2022 without an application for an extension. On September 12, 2023, the Planning Commission received the County Attorney’s Opinion that the tentative subdivision approval for this parcel had lapsed one year from the date of its issue because there was no application for extension prior to that permit becoming void. The same finding was made for this same developers Kukuiula tentative subdivision approval which expired one year from its date of issue in early 2022. Thereafter, Meridian Pacific and Gary Pinkston applied for a new tentative subdivision approval for the Kukuiula development. No renewal has been made for the Kiahuna subdivision at 5425 Pau A Laka Street and Kiahuna Plantation Drive. It is our position that no grading permit exists and none can be issued without a new application as specifically required in Section 22-7.13b. Once a new application is filed, the public works engineer can issue a new permit, renewing their grading permit for one year from the date of re-issuance.

 

We recently received the County Attorney’s Opposition to our Motion for Preliminary Injunction. In that Motion, they included a “Renewal” of the grading permit supposedly approved in September 2023, the same month as the County Attorney’s Opinion on the meaning of “Void” in the tentative subdivision approval permit ordinance. That September renewal is illegal because the applicant’s permit lapsed one year from the March 23, 2022 date of issue without any application for an extension of that permit period. Once  void, the applicant has to comply with subsection B and file a new permit application, paying the associated fees, before they can seek renewal under subsection D. Gary Pinkston/Meridian Pacific and each of the owner/applicants are legally required, either directly or through an agent, to reapply for the grading permit and pay a new fee for same, which is called for when the applicant allows the one year period from issuance to expire. If and when Public Works does receive an application for the issuance of a new/renewed grading permit for TMK 4-2-8-14-32 (Lot 1, 23.78 acres, a subdivision of the full  lot), please accept this email as our request for a Contested Case before any legal permit is issued by Public Works.Pertinent Provisions from the March 23, 2022 grading permit:  

“”
Page 3“”
Page 9

 

“THIS PERMIT WILL EXPIRE IF WORK IS NOT STARTED WITHIN 6 MONTHS AFTER THE DATE OF ISSUANCE OR IF WORK IS SUSPENDED OR ABANDONED FOR A PERIOD OF 90 DAYS OR ONE YEAR AFTER THE DATE OF ISSUANCE.” Page 2

Link to PetitionMahalo nui,Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
friendsofmahaulepu.org
[email protected]
(808) 742-1037 home
(808) 346-1973 cell

 

Posted 3/21/2024

Aloha,

Posted 3/11/2024

Aloha,

Posted 3/11/2024

Aloha,

Posted 3/6/2024

Aloha,

FOM and Save Koloa have been trying, with great difficulty, to save the south shore from increased run off that is certain to occur once Pinkston’s 28 acre parcel on Kiahuna Plantation Drive is covered with structures, roads and rooftops, eliminating this 28 acres of vegetation that receives run off through three large drainage culverts from Wainani subdivision, the golf course and the golf village. The golf course is watered almost daily creating water run off that previously was managed by the undeveloped Pinkston parcel, which also has a large drainage culvert on its southeast end, carrying the excess water under Kiahuna Plantation Drive and down the natural swail that runs adjacent to Hapa Trail. During heavy rains the run off already over topped the swail and runs onto Hapa Trail. Ultimately, the water reaches the mauka side of Poipu Road which slopes toward the registered historic archaeologic preserve, Kaneiolouma. Currently, when we have heavy rain, the drainage is a problem at Poipu and Aqua engineers have to come pump/extract the water from the Waiohai parking lot. The Sheraton sump, the other low point on the south shore, also has to pump now whenever there is a heavy rain. Once the Pinkston parcel is covered in concrete with its 280 unit development, no one disputes the run off will be significantly increased.

A Declaration from Matt Rosener was filed with the Planning Commission December 12, 2023. It details why Pinkston’s drainage plan is not a “Master Drainage Plan”. The Planning Commission questioned Wayne Wanda of Esaki Surveying and Mapping and established that there was no assessment of the cumulative impact of the drainage of the existing parcels with that of Pinkston’s parcel once developed. After the Esaki Engineer, Wayne Wanda, testified that no cumulative assessment was conducted, the Commissioners asked Mr Wada if he had considered the drainage that would go to Kaneiolouma. He responded that he did not do any measurements but stated “We all know where the water goes”. During their December 12, 2023 hearing, Laurel Loo testified that the only thing the County asked them for to complete the drainage plan was to identify two natural detention basins on the south shore that could hold the additional run off. Once of the Commissioners asked Pinkston’s lawyer, Laurel Loo, who owned the two TMKs as a location that would detain increased run off. Without identifying the owners, Ms Loo answered that those two parcels were not under the control of Pinkston. We looked up the TMK numbers and the natural detention basins offered were owned by 1, the Knudsen, and 2, was the TMK for Kaneiolouma. The County Planning Commission ignored condition 26, a requirement that a drainage plan consider Kaneiolouma to protect it when in fact the Commission approved a plan that intentionally proposes to use Kaneiolouma as a detention basin. This is no doubt totally consistent with Mr Wada’s statement “We all know where the water goes”. This valuable historic site is the low point on the south shore and down slope from Pinkston’s development.

Posted 3/4/2024

Aloha Chair and Members of the County Council,

On October 25, 2023, the County Council heard from the Kauai County Planning Director and Maunakea Trask regarding the status of the development at the former Coco Palms resort site. Maunakea Trask was representing the current developers RP21 Coco Palms LLC and Coco Palms Hui LLC. Coco Palms Hui LLC fell under different management in 2019 after Reef Capital foreclosed on Chad Waters and Tyler Green, the former owners and operators of Coco Palms Hui LLC.  The presentation to the Council was on the agenda because the day before, Mr Trask had provided the Planning Commission with the Annual Coco Palms status report. In addition to the failure of prior developers and current developers to meet/satisfy the most recent County permit condition letters of 2015 and 2018, the current developers annual status report was again late. The link that follows will allow you to access a side by side comparison print out of the 2015 and 2018 County permit letters with conditions. There is a failure to satisfy or meet almost all of the conditions and every developers permit letter has informed the developer that they are required to come before the Planning Commission annually not later than June 30 of each year to report on the status of the development until the construction complete and all permit conditions are satisfied.

Comparison Document 2015 Permit Letter side by side with 2018 Permit Letter

This email is sent in support of the publicʻs request that Coco Palms Resort not be rebuilt at the former site, as clearly stated at the October 25, 2023 County Council meeting. Friends of Mahaʻulepu on behalf of its members, request the Council prepare and pass a resolution requesting the Planning Commissions revocation of the Coco Palms building permits as was discussed by Council Chair in the October 25, 2023 meeting. During that meeting, Director Hull related that the County did have a Petition to Revoke filed by former Planning Director Mike Dahilig September 11, 2018. Mr Hull stated that he would be reviewing the Planning Commission meetings in 2018 to see what the condition violations were and what had ultimately transpired in 2018. We initially were able to access the video for the Planning Commission meeting 9/11/2018 right after the October 25, 2023 County Council meeting. We did not complete our review of the video at that time in late October. When we tried to access the video of the Planning Commission meeting for 9/11/2018 in November 2023, the video was no longer available. Because we had seen it and we had seen Mr Dahilig discussing the substantial number of permit condition violations as the basis for his petition to revoke, we found and downloaded the agenda for that meeting and the minutes for the meeting. The agenda item for the revocation was missing from the 9/11/2018 agenda then available on the Commission website. When we had listened to the video we heard the director say that the developers attorney had approached him and wanted to “work out” the issues raised by the condition violations and thus he requested the Commission continue the item to the 9/25/2018 agenda. We found the 9/11/2018 agenda on the Commission website and we found the block that described the Petition to Revoke that would have been in the agenda for 9/11/2018. We recognized it as the missing item from the 9/11/2018 agenda then on the Commission website because it made reference to the Director’s Petition to Revoke and an Order to Show Cause (OSC) hearing that was to take place 9/12/2018. It was evident that the missing agenda item was reprinted in the agenda but for 9/25/2018 because of the reference to the hearing that was to occur 9/12/2018. Because of the reference to the OSC hearing to be held 9/12/2018, it is more than likely the following item in the 9/25/2018 agenda was also to appear in the 9/11/2018 agenda.

Because of the inability to re-access the video recording for the Planning Commission meeting of 9/11/2018, we saved everything we could from the Planning Commission archived webcasts, the only place where meeting videos, minutes and agendas can all normally be found. There were three meetings (9/11, 9/25, and 11/13/2018) that addressed Director Dahilig’s Petition to Revoke. Today, if anyone goes to the Planning Commission archived webcasts and attempts to access the meeting video, the minutes and the agenda for 9/11/2018, they are no longer available. Also the agenda for 9/25/2018 is no longer available but its minutes and video are as of the time of this email. In a future email, we will provide the council with more detail of what transpired at each of the three meetings from the videos and transcripts we were able to download.

For now, however, we believe it is important for the Chair and all Council Members to have a detailed comparison in the change in conditions after the 2018 meetings which resulted in the Counties most recent permit letter with conditions for Coco Palms TMKs. What follows is a comparison between conditions of 2015 and 2018. The 2018 conditions were considerably less onerous in many respects as the following details. There are also references to modifications to the 2015 conditions in 2017 but no Commission meeting minutes or documents could be found to support those changes, the most notable of which was relieving the developer of the requirement to bear the cost for widening and side-walking Apana Road, and the Haleilio Road right turn lane onto Kuhio Highway. This is a substantial cost savings for the developer and it was supposedly purchased with the payment of $93,000 in 2017. No Planning Commission document could be found from the 2015 letter to 2017 to support that modification/accommodation for the developers.

Comparison Coco Palms County Permit Letters 3/15/2015 and 12/31/2018

In September 2018, Planning Director Mike Dahlig, filed a Petition to Revoke and/or Modify the Permit letter of March 10, 2015 that had been issued to the Coco Palms developers Chad Waters and Tyler Green dba Coco Palms Hui, LLC, who purchased the property previously held and operated by Coco Palms Ventures, LLC. Chad Waters and Tyler Green (Waters and Green) claimed to have received an assignment from Coco Palms Ventures, LLC, for their right to the Coconut Grove lease and three revocable permit parcels. Coco Palms Hui, LLC, Waters and Green, never obtained Board approval for the assignment of the Coconut Grove lease and they never perfected their application for the three revocable permit parcels which was contingent on them providing the State with proof of satisfaction of County property tax payments. Currently, RP21 Coco Palms, LLC (RP21), a Corporation created by Reef Capital Partners (RCP) in February 2021 following their hire of their subsidiary Private Capital Group (PCG) to foreclose on Waters and Green in 2019, is operating along with Coco Palms Hui, LLC, (the prior dba of Waters and Green) whose management was taken over by Stillwater Equity (another subsidiary of RCP) in 2019. RP21 and Coco Palms Hui, LLC are the latest of the would be developers who are bound by the permit letter issued by the County 12/31/2018. Friends of Mahaʻulepu (FOM) contends that RP21 and Coco Palms Hui, LLC have violated and/or have failed to satisfy the conditions of the latest County permit, embodied in the Planning Commission letter of 12/31/2018. The following is a comparison of the conditions in the County permit letter of 3/10/2015 with the conditions adopted 12/31/2018. There are striking irregularities for which no Planning Department or Commissions Actions could be found to support.

1. Re: Permit Conditions 1 & 2, both permit letters: During a presentation to the County Council October 25, 2023, there was a representation that somehow the two payments of $50,0000 made by Coco Palms Hui, LLC in 2015 was the reason the County took on the responsibility to widen, pave and sidewalk Apana Road from the hotel to Haleilio. In fact, both permit letters, 2015 and 2018, make it clear that the two $50,000 payments were for cultural development and Aha Moku Advisory Council (AMAC) signage, having nothing to do with roads.
2. Re: Permit Conditions 3 in both permit letters require the applicant to meet the requirements and standards of DLNR and SHPD “Prior to building permit approval”. The current would be developers have not been issued any of the three revocable permits for parcels that previously supported the operation of the hotel, e.g. the large parking lot adjacent to the Wailua River and across Kuamoo Street from the hotel site. RP21 and Coco Palms Hui, LLC, were served with a Notice of Violation April 19, 2023 which is ongoing and remains unresolved for the felling of 70+ coconut palms many of which were on the lease and conservation lands of the State, among other violations. Based on condition 3, the current developer, RP21 and Coco Palms Hui, LLC, are not eligible to receive building permits from the County. Finally, the requirements of condition 3 in 2018 for an Intensive-Level Survey (ILS) and Plan for any work on the historic lagoons as required by conditions 3 (a through e), per the records produced by the County, has not been satisfied.

Permit Condition 14
In 2015 Condition 14 required the applicant to comply with the Chapter 7A, Kauai County Code. In 2018 Condition 14 indicates the permittee is already compliant, however when we contacted the parcels the permittee listed the affordable housing units in their Agreement with the housing department, the parcels they identified were owned by others who had no plans to sell them to Coco Palms developers.
Permit Condition 15
In 2015, permits were required to be pulled within 3 months of final permit approval and pursuant to the CZO and the PDU, construction on those permits was to commence within one year of permit approval. In 2018, the permittee/applicant had to pull all building permits within six months of final approval. It states that vertical construction had to commence by August 31, 2019. Neither versions of condition 15 have been satisfied.

Permit Condition 17
In 2015, demolition of the old structures were to be complete within six months of commission action approving the demolition plan. In 2018, condition 17 is very confusing because it suggest that demolition of the damaged structures was to be complete by March 31, 2017. It then goes on to claim that this condition “17 has been satisfied”. Definitely, not the case as demolition didn’t begin until December 2023. There is also a failure to follow the requirement in 2018 that the vertical structures be commenced and incorporate the vertical structures by June 30, 2021. None of the foregoing has been done.

Permit Condition 20
Permit condition 20 required permittee/applicant to provide the County with an easement for the coastal bike path. In 2018, this condition/requirement was deleted altogether.
Permit Condition 21 (2015) and Condition 20 (2018)
Condition 21 from the 2015 permit letter required a shuttle service for 18 months after certificate of occupancy and both required a bike share program even though the applicant was no longer responsible for dedicating land for the coastal bike path. In both, the traffic mitigation measure of an 18 month shuttle program after a certificate of occupancy makes little or no sense because it is not likely the hotel will be stopped from operating once a certificate of occupancy has been received. Rather, in view of the time that has transpired since either the 2015 or 2018 permit conditions, an updated TIAR should have been done at a minimum. Developer has not done so and has not met this or numerous conditions above making the location of this parcel its known traffic risks, rising sea level, and stale shoreline management assessment grounds for revocation. These developers have had control of the parcel since 2019 and still the above conditions have not been met or even substantially satisfied in four and a half years.

Permit Condition 22 (2015) and Condition 21 (2018)
In 2015, the applicant had to widen Apana Road to accommodate two way traffic, construct sidewalks from the hotel along Apana Road up to Haleilio Road, continue that sidewalk around the right turn lane of Haleilio Road and be solely responsible for these costs and the widening of the right turn pocket. In 2018, all of a sudden the new permit condition 21 which replaces former permit condition 22, claims that the applicant has met an in lieu of payment for $93,000 with the County now the sole entity responsible for the widening and sidewalks that were previously a sole cost for the applicant/permittee. We could find no Commission Action ever taken that allowed for payment of $93,000 in lieu which the new 2018 condition 21 claims was satisfied in 2017. When and under what authority, was the $93,000 in lieu of accommodation created to be satisfied in 2017 if indeed it ever was!

While condition 25 of the County’s most recent permit letter for the Coco Palms development site authorizes the County to add to or modify conditions as the County deems necessary, the County code also authorizes the Planning Director to request a full revocation of the permits from the Planning Commission. As Mike Dahiligʻs Second Petition to Revoke the Coco Palms development permits indicated, the County is justified in revoking permits where the permit is violated because a significant failure to satisfy conditions and where that failure is not due to a force of a nature. Here as has been the case for many of the “long line of would be developers” the abject failure to satisfy required conditions more than supports a resolution from this council supporting the revocation of the Coco Palms development permits currently held by RP21 Coco Palms LLC and Coco Palms Hui LLC.

History of Ownership

FOM Petition to Revoke

FOM Supplemental Petition

Mahalo nui,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
friendsofmahaulepu.org
[email protected]
(808) 742-1037 home
(808) 346-1973 cell

Posted 1/22/2024

Planning Commission Helps Pinkston

Aloha,

On January 9, 2024, Pinkston was once again granted a preliminary subdivision approval for the development he proposes to build in Kukuiula. With the homes he plans to build in Kukuiula and the 280 luxury vacation rental condominiums he has planned for Kia Huna Drive, once build the collective impact of these units on the south shore will be an additional 1,200 to 1,500 visitors added to the south shore. None of the units are affordable and none of them are likely to be occupied by full time residents.

No, our County administration hasn’t handed Pinkston the Koloa/Poipu area on a silver platter yet. Granting him a new preliminary subdivision approval again after he allowed the initial approval to lapse in February 2023, is unfortunately a first step. We need to remain vigilant and with your support, we intend to keep fighting. They are sure not making it easy for those who know that the south shore is already overcrowded and our natural resources/beaches/reefs/seals/honu and marine life, all seriously overburdened.

Pinkston’s Kukuiula proposed project would be right across the street from the Kukuiula boat harbor, just beyond the fence that borders Lawai Road. Before he can begin construction, he needs to comply with and obtain a shoreline management area permit if he builds any structures that exceed $500,000 in value in the SMA portion of his parcels. He also needs to obtain a NPDES permit for the grading and construction runoff which will put mud and construction debris into the waters of the boat harbor. He also has to receive clearance or approval from the US Fish and Wildlife for a protected or endangered species in the area likely to be impacted by his project. Agency comments are requested by the Planning Department whenever a preliminary subdivision approval is applied for. Unfortunately, our County granted Pinkston’s application without waiting for a response from the US Fish and Wildlife or the Kauai County Water Department. They are not suppose to grant applications when they don’t have the agency comments because they may learn why the application should not be granted. The pressure from developers and our current Mayor’s desire to increase development on Kauai encourages the Planning Department to violate its own rules.

A copy of the testimony filed by FOM in opposition to the development is shared below. Many in the community turned out to testify. The comments and testimonies offered were compelling. The link that follows will allow you to watch the communities desperate pleas. At 2 hour and 4 minutes into the meeting, our Planning Director, Kaaina Hull begins the discussion about the Parks Department not having the resources to maintain that beach park so they have not required Kukuiula to transfer the deed despite a County Ordinance that required them to do so as a condition of their development. At 2 hours 7 minutes and 20 seconds, Kaiana Hull states on camera that he really doesn’t care what happens in Kukuiula. There are several interesting issues that were flushed out during the meeting. The Planning Director tried to calm the community by claiming that lawn/park area where the canoes sit adjacent to the Kukuiula Small Boat Harbor would always be accessible to the public and could not be developed. When FOM testified, we shared with the audience that that grassy lawn/park area is still held by and deeded to Kukuiula. The Director said that while that was accurate, a condition of development was that Kukuiula was to transfer the deed to that land to the County so the County could make sure it was always open for public use. He explained however that the Parks Department has limited resources and the Parks Department has asked that the deed not be transferred because the County Parks Department doesn’t want to take on the burden of mowing that grassy area. We pointed out that as long as Kukuiula holds the title to the land, County administrations can change, Planning Department personnel can change and there is nothing to stop Kukuiula development from seeking a modification of that development condition, keeping the land for themselves and their use. Even though the area is open to the public and is not expected to be gated, the effect of adding at least 350 people a night with the visitor destination units Pinkston plans to build in Kukuiula will likely prevent local residents from the Kukuiula Harbor use they now enjoy because the beach and parking area will be taken by visitors.

01092024 Planning Commission Meeting Video Pinkston

——– Forwarded Message ——–

Friends of Maha’ulepu                                     friendsofmahaulepu.org                                       1/07/2024

To: The Kauai Planning Commission
4444 Rice Street, Suite A473
Lihue, HI 96766
Phone: (808) 241-4050
Email: [email protected]

From: Friends of Maha‘ulepu

Aloha Chair and Members of the Kauai County Planning Commission and Subdivision Committee,

Subject: Agenda Item G(1)(c): Preliminary Subdivision Map Approval, Subdivision Application No. S-2024-6. Kukui’ula Parcel HH Subdivision, BBCP Kukui‘ula  Infrastructure, LLC/ MP Kaua‘i HH Development Fund, LLC for Proposed 3-lot, Consolidation and Re-subdivision into 51-lots TMK: (4) 2-6-019: 026, 029, 031 Koloa, Kaua‘i. Before the Subdivision Committee 8:30 am January 9, 2024, 4444 Rice Street, Planning Conference Rooms A & B.

Please find below Friends of Māhāʻulepu’s comment on Item G(1)(c): Preliminary Subdivision Map Approval, Subdivision Application No. S-2024-6. Kukui’ula Parcel HH Subdivision, BBCP Kukui‘ula  Infrastructure, LLC/ MP Kaua‘i HH Development Fund, LLC for Proposed 3-lot, Consolidation and Re-subdivision into 51-lots TMK: (4) 2-6-019: 026, 029, 031 Koloa, Kaua‘i.

1.  Applicant should be required to establish compliance with existing laws prior to obtaining further approvals from this Commission.

Applicant MP Kaua‘i HH Development Fund, LLC/BBCP Kukui‘ula  Infrastructure, LLC, both variously owned by foreign developer Gary Pinkston (Applicant) must first show it complies with existing obligations before the Commission grants further approval of its preliminary subdivision map.

For instance, staff recommend:

(e) Relative to the requirements/standards set forth in Ordinance No. 777 and Section 8-4.5(d) of the Kauai County Code (1987), the Applicant shall resolve with the Planning Department the provision of public access, and more specifically, access to Lawai Road from the proposed residential subdivision.

The subdivider shall incorporate the features of the Conceptual Trail Master Plan (dated April 2004) within the project area, if applicable. The access plan shall be reviewed and approved by both the Planning and Parks & Recreation Departments. Furthermore, proper documents shall be prepared and ready for execution prior to final subdivision approval. The Planning Department reserves the right to impose additional conditions relating to this matter while in the process of resolving this condition.

(f) There shall be no vehicular access permitted onto Lawai Road from proposed Lot 50. Semi-circles denoting no vehicular access permitted shall be shown on the final subdivision map. These provisions shall be incorporated as a restrictive covenant for the subject lot, draft copies of which shall be submitted to the Planning, Department for review and approval.

Staff report at 4. Drawings from May 26, 2023 do not show the project will utilize Lawai Road, but these conditions appear to anticipate its use. These issues should be addressed prior to approval of the preliminary subdivision map because the Commission may lack authority to do so when presented with the final subdivision map.

Traffic mitigation is unclear. The staff report only requires Applicant to comply with existing Ordinance PM 2004-370 regarding “7. (improvements to the roadway system)” and not until after approval of the preliminary subdivision map. These improvements should be included with any approval.

It is likely that traffic from the parcel will utilize Lawai Road to access the beach and other areas, even though the main outlet is represented to be restricted to Ke Alaula Street. Those utilizing the project will be 160 feet from the shoreline, just across Lawai Road, and will likely want to utilize the shoreline. Conversely, the project should be required to remain open to pedestrian public access to encourage open communities, jogging, biking, and otherwise a free exchange of space for recreation and cultural use.

Grading and Drainage plan, May 26, 2023 (Drawing C-108) (above).

The South Kaua‘i Community Plan does not include study of the proposed addition of this subdivision, which will contribute further traffic to Ke Alaula Street. Nor is the proposed Kukui‘ula  development included in the traffic study as a proposed land use. South Kaua‘i Community Plan, Appendix D at 16-17. The study area for the community plan “is generally bound by the following facilities including:

• Kaumuali`i Highway to the north
• Maluhia Road and Alakinoiki Road to the east
• Papalina Road and Koloa Road to the west
• Poipu Road to the south”.

Lawai Road is not included in the study area and therefore predictions and plans from the community plan cannot be relied upon to address traffic contributions from the project.

The Commission should require: (1) a plan for compliance with Ordinance No. 777 and Section 8-4.5(d) of the Kauai County Code (1987) and any plans to use Lawai Road prior to preliminary map approval; (2) explicitly state traffic improvement requirements in its approval; and, (3) ensure the project is not gated against public vehicular access.

        2. Commission needs to impose stronger, better designed conditions on any preliminary subdivision approval.

As this Commission noted in its Order and Decision, dated July 18, 2023, regarding FOM’s and Save Kōloa’s petition for intervention, the tentative subdivision application phase is the point at which intervention, and concomitant information necessary for deciding to grant or deny, or to develop mitigation conditions, is appropriate.[1] This Commission can and should impose conditions on the applicant. Conditions referenced by staff simply amount to informing the Applicant it must comply with existing laws and are lacking in specific requirements.

Existing laws have failed the Kukui‘ula development area. Brown water advisories impacting Kukui’ula Bay to Keoniloa Bay as well as MacArthur Beach Park to Salt Pond Beach Park are becoming more frequent. Long-time community members with invaluable knowledge of this area and its peoples are continually pushed out by increasing expenses. Hundreds of historic sites have been destroyed. All of these result from specific decisions that bodies, including this Commission, have made. This application is another opportunity to rectify these issues.

        3. Require contributions to Kāneiolouma Heiau to meaningfully mitigate loss of cultural sites.

“There is no doubt that there were extensive archaeological features throughout the Kōloa area. There is also no doubt that many of these sites have been destroyed over time[.]” Applicant’s Ka Pa‘akai report, at 174. The Kukui‘ula development area had 58 documented archaeological sites, comprising 150 features, including platforms and ‘auwai, which are reported to have been destroyed. Though the Applicant’s Ka Pa‘akai report concludes these sites are not within the project area, this is inconsistent with the interviews upon which that report is supposedly based. Hawaiian studies professor Puali‘i Rossi-Fukino pointed out Niukapukapu Heiau lies within the Parcel H area.

The destruction of Hawaiian historical sites has cumulative and wide-reaching impacts – across geography as well as time. Rupert Rowe, a steward of Kāneiolouma Heiau nearby the project site, talks about the continued loss of identity for these places, specifically Kukui‘ula.

Given its contribution to the removal of Hawaiian identity, and the resulting redoubled importance of sites remaining in the area, Applicant should be required to contribute $2 million to Hui Mālama o Kāneiolouma, to be used exclusively for restoration, research, planning, and administration purposes.

         4. Require runoff mitigation and water quality monitoring to protect shorelines.

Kukui‘ula coastal areas are home to large schools of fish, sea turtles, and native corals. Currently, heavy rains often result in stormwater runoff entering coastal waters at Kukui‘ula  Bay, and carrying overflow from cesspools, sewer, manholes, pesticides, animal fecal matter, dead animals, pathogens, chemicals and associated flood debris.[2] Kukui‘ula  Bay turns a rusty red due to runoff after these rainstorms. This pollution intrudes on Hawaiian gathering practices at the shoreline, the health of native species and ecosystems, and surfing and other recreation.

Historically, because of less outfall points and the dry nature of the Kukui‘ula  coastline and prior to the development of Kukui‘ula, water quality was very clear and clean. Subdivision of the proposed project into 51 units will increase the density of land use, including by adding a common pool area and hardened pickleball court, and thus result in more, and more polluted, runoff.

(above) Grading plans, dated May 26, 2023, show a pool/ common area planned for Lot 47.

The South Kaua‘i Community Plan specifies under “Drainage”: (a) “Prepare a drainage study for the Po‘ipū Beach/ Kaneiolouma area and propose alternative to mitigate flooding”; and, (b) “Install bioswales and rain gardens along streets, in parks, and in parking lots to collect and filter rainwater runoff and increase infiltration via landscaped areas that also beautify the place.” Community Plan at 4-14. None of these studies or installations have been completed.

None of the proposed conditions address water quality issues, even though part of the project is in the special management area (SMA). This may be due to a further error; the staff report incorrectly states the subdivision project will not impact Hawaiian traditional and customary practices including because “[t]here are no known special gathering practices taking place at the project site or within the vicinity of the project site.” Staff report at 3. The project site is just mauka of Lawai road, and about 160 feet from the shoreline.

Any approval should require the Applicant to: (1) prepare a drainage study to establish, beyond Department of Public Works requirements, existing runoff through the project area and to develop retention structures sized to prevent existing and increased runoff from passing through the property and subject to Commission approval; (2) install bioswales along the mauka and makai lengths of Lawai Road adjacent to the project as well as any interior roads, parks, parking lots, as determined under #1; and (3) conduct semi-annual water quality monitoring studies, perhaps in partnership with Surfrider Kaua‘i, to establish both a baseline prior to construction and beyond until ten years after installation of all drainage mitigation measures.

The Commission would approve the drainage study under #1 to ensure it complies with the intent and purpose of its institution into the subdivision approval. Requirements under #2 could amend the existing recommendation from the County DPW, which proposed the Applicant maintain the portion of the county right of way along Lawai Road.

5.  Workforce housing should be integrated into Kukui‘ula  project

Four bedroom homes in Kukui‘ula are currently marketed for around $6 million. Local working residents will not be able to afford these homes. The homes are rather investment vehicles, vacation second-homes, and not going to contribute to Kōloa communities. There is no prohibition against turning these houses into vacation rentals. As real estate becomes more valuable, fewer long-time local residents will be able to afford homes and the cost of living without substantial subsidies and planned support.

The project is subject to the County’s workforce housing requirements, including for reasons that it requires a subdivision or consolidation of land that would allow more than 10 residential dwelling units. KCC §7A-1.4.1(c). These are in addition to the affordable housing requirements of the LUC District Boundary Amendment No. A93-696.

The staff report includes no assessment of the socioeconomic impacts on the welfare of the community. There are no meaningful conditions put on the applicant to mitigate these impacts. The project’s workforce housing obligations are not referenced at all. Kaua‘i County Code (KCC) §7A-1.5 (determination of workforce housing assessment should be resolved prior to final subdivision or zoning permit approval, wherever occurs first).

Though the project was previously part of the larger Kukui‘ula development under the LUC Order, in 2017, the Kukui‘ula Development Co. reported to LUC that it intended to sell Phase IIIB/ Parcel HH/II.[3] The project is now requesting further entitlements to increase density of its development to approximately 47 lots, with several other lots for other uses. This development was not contemplated nor included when the affordable housing requirements were determined.

Approval of the preliminary subdivision map should be conditioned on Applicant’s inclusion of at least 10 workforce housing units within its project at Kukui‘ula Parcel HH and/or require development of 20 offsite workforce housing units, all of which should be subject to Commission approval prior to approval of the preliminary subdivision map.

[1] Intervention against this application is impossible. The only public notice of the application appeared on January 3, 2024 agenda, a bare six days before the Subdivision Committee and Commission hearing at which decision-making will occur. Petitions to intervene must be filed seven days before the hearing. Kaua‘i County Rules (KC) §1-4-3. Further, at its December 12, 2023 meeting, and in its ensuring written order dated December 22, 2023, this Commission also announced a new policy of denying petitions to intervene on bases including that a petitioner’s injuries are not clearly distinguishable from the general public. Petitioners are not required to expend resources on futile efforts.

[2] “Brown water advisory issued for Kaua‘i shores” April 19, 2023 available at: kauainownews.com/2023/04/19/brown-water-advisory-issued-for-south-and-west-facing-shores-of-kauai/

[3] See Lindsay Crawford, Project Manager, Kukui‘ula Development, 2017 Annual Report (Nov. 2017) available at: luc.hawaii.gov/wp-content/uploads/2014/02/A93-696-ann-rprt-2017.pdf

Mahalo nui,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
friendsofmahaulepu.org
[email protected]
(808)742-1037

Posted 12/23/2023

Seasons Greetings and a Joyous Holiday from the FOM Board,

Wow, another year just whizzed by. From our hui emails, you know we have been busy. If ever you want to know what happened throughout the year, feel free to visit FOM’s website. Under the “Current and Past News” tab, you can access all of our hui emails and track our work for the year. One of the more lasting achievements this year is our part in helping to curb the proposed residential electric rate increase from 18+%, to no more than 7.99% max. We are happy to share that we also had a good end of year win on the Coco Palms issue. Our environmental work would not be possible without our generous supporters.

Coco Palms Update

Beginning 12/8/2023, FOM sponsored a number of key people to fly to Oahu and testify to the Board of Land and Natural Resources (BLNR). We partnered with I Ola Wailuanui (IOW), supporting their vision for a historic preservation of the former Coco Palms site, starting with opposing the developers desire to use State lands to meet their hotel ingress and egress in parking requirements. When testimony began, FOM was called to testify first on the Coco Palms Agenda Item. The issue was whether permits for three parcels of State land should be awarded to RP21 Coco Palms, LLC  (RP21), the latest in a string of “would be” developers who have promised to restore the Coco Palms after it was destroyed by Hurricane Iniki 31 years ago. This restoration has not happened for so long that the public is seriously upset with the eyesore that has been allowed to remain year after year as developers, promise a repair and rebuild, get new permits and sell the land again to another “would be” developer, enhancing the lands value with each successive permit entitlement and sale. FOM and IOW were both solidly opposed to the staff recommendation, that the fee simple property owned by RP21 be awarded public land to further improve the value to yet latest developer who has done nothing to either improve the site or remove/demolish the remnant eyesore the hurricane ravaged hotel, since their arrival in February 2021. Rather, they have been cited with a Notice of Violation for the unpermitted removal of more than 75 healthy coconut palms from the State land and conservation area without permits. Our testimony began with calling the Boards attention to the fact that there was another applicant seeking to develop cultural activities, historic signage, and preservation of parking for beach goers rather than dedicating our State lands to better serve hotel occupants, lessening the developers need to use their fee simple lands for hotel parking, ingress, egress, etc. We pointed out that buried in the staff submittal was a vague reference to IOW having an expressed interest in the three State parcels as well. In fact, IOW had submitted full applications for the parcels in April 2023. The Board’s Staff chose to ignore the applications and simply limited the Board’s consideration to one applicant only, RP21. Fortunately the State’s hearing calendar ran long and our agenda item was continued to Friday the 15th. When the Board next convened December 15, 2023, IOW attorney, Teri Tico and FOM attorney, Bianca Isaki, each were able to add to the many who had testified the week before. Teri Tico read from a letter sent to her by Staff in May of this year acknowledging receipt of the IOW permit applications and promising to contact IOW when the State parcels were available for permits. IOW was never contacted as promised. The Board appeared less than pleased with their staff and for now decided to give equal right of access to both IOW and RP21 for the smallest of the three State land parcels, reserving final decision on the two larger parcels until next year. The Board instructed their staff to work with both applicants and prepare a new staff submittal that accurately represented the interests of both applicants. Director and BLNR Chair Dawn Chang stated that it appeared the staff had presumed who the Board would want the property to go to and that was not okay. The many wonderful testimonies supporting IOW generated what appears to be a sincere interest on the part of the Board to permit IOW to use these State lands for preservation rather than aid the hotel who wants to use the State lands to meet their County parking requirements and required comfort station for beach goers. The developers were not happy with the decision because they actually told the Board they were hoping for the RPs to be granted to them 12/15/23 as a critical part of their negotiations, “currently ongoing with the County” per their attorney, Mauna Kea Trask. IOW was pleased with the outcome. Since they had not been put on the Agenda despite their timely and proper applications for the three State parcels, the Board could not award IOW the RPs at this time either. We will keep you posted and let you know when IOW’s applications are to be heard.

A Small Setback

When we last wrote, we shared that Pinkston’s Kiahuna Plantation Drive development was required to prepare a Master Drainage Plan (MDP) to include the project area, all the Kiahuna parcels and developments planned for west and east of Kiahuna Plantation Drive mauka (above) of Poipu Road. The MDP requirement, condition 26, stated further that the MDP had to include whether there would be increased drainage to the Kaneiolouma Heiau site, an archeological preserve, once 280 luxury condominiums are developed/built on Pinkston’s Kiahuna Drive parcel. The preserve is makai of Poipu Road between the road and the ocean. It is the lowest point, below sea level, on the south shore of Kauai.

You may recall that in July of this year, Pinkston asked the County Planning Department and Planning Commission to modify the MDP requirement. Pinkston’s request was that he only study the increased drainage from covering his parcel, and not the cumulative impact of drainage from the surrounding developed parcels or the potential for increased drainage from his parcel to Kaneiolouma Heiau  which is makai (that might reach beach side of Poipu Road). FOM objected and requested a hearing if there was to be any change of condition 26 because of the need to preserve the cultural and archeological significance of Kaneiolouma Heiau, which is suppose to be protected from damage or destruction from increased drainage, likely to occur with the development of a 280 unit luxury condominium complex that will cover Pinkston’s 28 acre parcel, the last remaining open area that is serving as a sponge for several surrounding developments. FOM’s you tube channel “Save Koloa” has photographs of the Pinkston parcel in its pre-development state with culverts that can seen running onto the Pinkston parcel from the Kiahuna Golf Course, the Wainani subdivision, and Kiahuna Golf Village. His large parcel serves as a sponge for that area during rain events. Once covered, it is undisputed there will be an increase in run off.

The recognized increase drainage from rain events with development, was addressed in a 2012 master plan for the Kaneiolouma Heiau restoration and preservation. In that 2012 plan, it states: “Water draining from mauka subdivisions into the park is contributing to flooding problems in the Preserve.” That recognition is likely why the County required the developer comply with condition 26 before any building permits would be issued:

“”
County of Kauai Permit Condition 26

On July 18, 2023, the Planning Commission Ordered an Administrative Hearing to address Pinkston’s request to modify the above condition. On August 9, 2023, Pinkston’s attorney’s sued the County asking Judge Watanabe to modify condition 26. In that suit, they failed to tell the Judge that an Administrative Hearing had already been Ordered by the Planning Commission in response to Pinkston’s earlier request that the Commission modify that condition. It was only through a legal friend that FOM learned that Pinkston had filed a suit asking the Court to do what he had previously asked the Commission to do. Pinkston’s attorneys failed to serve us with Notice even though we were parties to the Administrative Hearing Order. Fortunately, there is a Rule of Law that requires that the Administrative Hearing process be complete before bringing an Action in Circuit Court. As soon as we learned of Pinkston’s Circuit Court lawsuit, we had to quickly file a Petition to Intervene, letting the Judge know that there was an Administrative Hearing that had been Ordered and that we were a party to that Action. We were not included and not given Notice by Pinkston of the Case he filed before the Circuit Court. Judge Watanabe told Pinkston’s attorneys that they could not be in the Circuit Court and when they had not finished the Administrative Hearing Process that Pinkston began when he asked the Planning Commission to modify condition 26. The Judge Dismissed Pinkston’s lawsuit and refused to hear the Summary Judgement Motion he had filed with that Complaint.

So what happens next, Pinkston files a “Master Drainage Plan” December 5, 2023, gets it approved and signed off on by three County Officials and gets put on the Planning Commission Agenda within 24 hours of delivering the claimed MDP to Planning. Meanwhile, the Administrative Hearing Ordered in response to his request to modify is pending. In fact, when we attended the December 12, 2023 Planning Commission meeting to review the “MDP” delivered to the County December 5, 2023, it was evident from the testimony of the engineer who prepared the “MDP”, that it was the very same modified drainage plan they had asked the Commission to let them file July 3, 2023. When you review the link to the following video recording of the Planning Commission meeting 12/12/23, you will find that they only considered the properties mauka (above) Poipu Road, did not aggregate or consider cumulative drainage impact with the development and concrete that would cover Pinkston’s parcel as called for in condition 26. Most importantly, the filed MDP is really a modified “MDP” because it fails to include any consideration of the impact from the increased drainage once Pinkston’s parcel is developed on the Kaneiolouma Heiau. Please see the engineers testimony offered before the Planning Commission where they even go so far as to suggest that a parcel owned by the Knudsen Trust should be dedicated as a detention area to hold the increased flows that will occur from run off during rain events once Pinkston’s parcel is developed:

Planning Commission 12/12/23 MDP Hearing

1. 5:54 County Planning Director Hull states the Master Drainage Plan requirement to include impact to Kaneiolouma is a “hard and fast requirement of development permit condition 26”.
2. The developer is required to keep post development run off to the same standard as pre-development run off
3. Covering the 28 acres of Pinkston parcel with buildings, roofs, parking lots etc. will increase the run off from that parcel.
4. The MDP did not consider the cumulative impact. Rather, they attached the approved drainage maps from each of the nearby developments in the same project area without any determination of the total flow that will result once Pinkston’s parcel is covered.
5. At 6:19:20, Wayne Wada, the engineer who prepared the MDP stated they did not consider what impact there would be to the heiau.
6. At 6:22:40, the MDP suggested the County require Knudsen Trust to develop a detention basin to hold the increased water that they know will occur with the Pinkston development.
7. At 6:28:45, Wayne Wada admits that for whatever was done by way of a MDP, they don’t know what the impact will be to the heiau post development, suggesting that the MDP is only “theoretical” (ignoring the detailed records NOAH has for the past 50+ years with the daily rainfall on the south shore and improperly relying on a 2 and 100 year storm event standard from the County engineering manual from 2001, a 20+ year old standard that does not provide for climate change and that 24 hour storm events are more frequent).

WE WILL BE FILING AN APPEAL AND WE WILL DO OUR BEST TO KEEP THE OBVIOUS CERTAINTY OF INCREASED DRAINAGE FROM FURTHER DAMAGING KANEIOLOUMA AND THE POIPU WAIOHI BEACH AREA! We have already experienced a floating car in the Waiohai Beach parking lot. There is no question that the County does not have the existing drainage from the developments/parcels already covered in concrete in this area under control. We have to try to keep it from getting worse.

We ask only that the County enforce their permit conditions that were designed to protect and preserve this environmentally sensitive and historic area. Please see the testimony we filed below with the Planning Commission objecting to the “MDP” because it was not a valid master drainage plan as required. We could not believe the Commission’s decision December 12, 2023 approving the “MDP” filed just one week prior, especially after the testimony of the engineer who prepared the “MDP” admitted that drainage to the Kaneiolouma Heuai was not studied in his “MDP”. He claimed that any such consideration could only be theoretical. Please see our testimony below and that of North Shore Hydrologist, Matt Rosener, who has a Masters Degree and extensive experience with drainage plans. He details the deficiencies in Pinkston’s “MDP”.

Pinkston’s claimed “Master Drainage Plan”

Mahalo nui loa,

Bridget Hammerquist, Jay Kechloian and Eileen Kechloian, Officers, FOM Board of Directors

——– Forwarded Message ——–

Friends of Maha’ulepu                       friendsofmahaulepu.org                                                 12/10/2023

To: The Kauai Planning Commission

4444 Rice Street, Suite A473
Lihue, HI 96766
Phone: (808) 241-4050
Email: [email protected]

From: Friends of Maha‘ulepu

Subject:  Agenda Item H1 – Master Drainage Plan for Kiahuna Plantation Drive Development

Dear Members of the Kauai Planning Commission,

Friends of Maha‘ulepu (FOM) respectfully submits this comment in support of and to supplement our previously filed Petition to Intervene and/or the request for denial of the applicants request for approval of the December 5, 2023 Master Drainage Plan (MDP). This comment addresses the MDP dated December 5, 2023, for the 280-unit luxury condominium development on Kiahuna Plantation Drive, prepared by Esaki Surveying and Mapping, Inc. Our concerns are necessitated by the omissions from the MDP of critical information necessary to constitute an adequate MDP and rapid progression of events surrounding the MDP’s submission and approval process. This comment letter is supported by the Declaration of Matt Rosener, an experienced civil engineer with graduate level degrees in civil engineering specializing in drainage, water quality and erosion management with 22 years of experience in the State of Hawaii. As Mr Rosener details, the applicant’s December 5, 2023 MDP is void of essential and required information to comply with the County Engineering Manual and the Standards of Practice in the Industry. For the reasons set forth below, FOM respectfully requests that this agenda item be ordered to be heard by the Administrative Law Judge already retained pursuant to Planning Commission Order of July 18, 2023. That order was in response to FOM’s request to Intervene on applicant’s request that Condition 26 be modified, a condition that required a MDP be prepared and approved for all development parcels in the subject area mauka of Poipu Road to include drainage impact to Kāneiolouma Heiau. Now, the same applicant, Meridian Pacific and Gary Pinkston, have submitted a MDP to the County Planning Department completed  by Esaki Surveying and Mapping, Inc on December 5, 2023, and added to the Planning Commission Agenda for approval on the afternoon of December 6, 2023 for hearing December 12, 2023, 24 hours after the MDPs completion.

Pertinent Relevant Background For Agenda Item H1 December 12, 2023

The Commissions records will reflect that on July 11, 2023, the Kauai County Planning Commission addressed Agenda Item H a. and b.:

“a.      Subdivision Application No. S-2021-7
5425 Pa’u A Laka, LLC.
Proposed 2-lot Consolidation and Re-subdivision into 4-lots
TMK:    (4) 2-8-014: 032
K61oa, Kaua’i

1) In the Matter of Applications for (1) Preliminary subdivision extension request for application no. S-2021-7, 5425 Pa’u A Laka, LLC for proposed 2-lot consolidation and re-subdivision into 4-lots; and (2) Amendment to Class IV Zoning Permit (Z-IV-2006-27), Use Permit (U-2006-26), and Project Development Use Permit (PDU-2006-25} for modification to Condition No. 26 relating to drainage requirements for a development situation at the Pau A Laka Street/Kiahuna Plantation Drive, 5425 Pau A Laka Street, Tax Map Key: 2-8-014: 032, and containing a total area 27.886 acres, Petitioners Friends of Mahaulepu and Save Koloa’s Petition to Intervene and, Alternatively for Denial of Applications.

b.    Subdivision Application No. S-2022-6
Kukui’ula Development Company, LLC./
MP Kaua’i HH Development Fund, LLC.
Kukui’ula Parcel HH Subdivision
Proposed 3-lot Consolidation and Re-subdivision into 51-lots
TMK: (4) 2-6-109: 026, 029, 031
Koloa, Kaua’i”

FOM’s Petition to Intervene to modify Condition 26 was heard and the matter was Ordered to an Administrative Hearing via FOM’s request for a Contested Case Hearing. The Commission served all parties with its Order to the Administrative Hearing Process on July 18, 2023.

On August 9, 2023, Council for Gary Pinkston and Meridian Pacific filed a Complaint and Motion for Summary Judgement against the County before Judge Watanabe, asking the Judge to modify the drainage plan. The documents filed included a Declaration from Wayne Wada supporting the Complaint that claimed the MDP requirement/Condition 26 by the County was impossible to prepare. Pinkston’s lawyer told the Court that it was within the Court’s purview to make the requested modifications to Condition 26. The Court was not told that Pinkston had previously filed an application for modification of Condition 26 with the Kauai Planning Commission. The Court was also not told that the Planning Commission had already ordered the matter to a hearing before an Administrative Law Judge after granting FOM’s Application to Intervene. FOM was not given notice of the Complaint and Summary Judgement Motion, even though Pinkston’s lawyers knew that FOM was a party to the Planning Commission Order of July 18, 2023.

FOM learned of the Complaint when a friend happened to notice on the Court Filings that there was a new Complaint filed by Pinkston against the County. FOM was not a party and not given notice so we couldn’t file a Motion to Dismiss. Instead FOM filed a Motion to Intervene before Judge Watanabe and argued that Pinkston could not have a Complaint heard in the Circuit Court on a matter that was already before the Planning Commission and Pinkston’s administrative remedies had not been exhausted. The Court agreed, striking Pinkston’s Complaint, Dismissing the Complaint and Motion for Summary Judgement.

Just two weeks ago, the Administrative Law Judge set hearing dates for Pinkston’s request to modify the drainage plan requirement.

After all that, on December 5, 2023 Pinkston’s attorney submitted a “MDP” to the Kauai County Planning Director, also signed by Esaki Surveying and Mapping, Inc. on that same day December 5, 2023, which they had previously said could not be done.

Key Concerns and Requests:

1. Accelerated Process and Lack of Comprehensive Review:

The MDP was released on December 5, 2023, and rapidly scheduled December 6, 2023 for a hearing on December 12, 2023. Between December 5, 2023 when the MDP was finalized and signed by Wayne T Wada, P.E. and the afternoon of December 6, 2023, the MDP was carried to the Planning Department by Laurel Loo December 5, 2023. From there the MDP was taken to Public Works for review by Michael Mole, P.E. who supposedly read, reviewed and approved the plan by 4:42 pm December 5, 2023. At that point the Planning Department was closed for the day. Thereafter, on December 6, 2023 the MDP was carried back to the Planning Department to be read, reviewed and approved by Ka’āina Hull and Dale Kua. That same day, both signed and submitted the MDP to the Planning Commission with a request for Agenda Item H1 to be reviewed and approved by this Commission.

This expedited timeline raises significant concerns regarding the adequacy of the review process, particularly in light of the down slope proximity of Poipu Beach Park, Poipu and Waiohai Beaches. Potential environmental impacts of such a large-scale development should not be so rushed that the sufficiency of the review is less than probable. The lack of adequate time for public scrutiny and expert analysis in such a hasty schedule is alarming, particularly when considering the long-term environmental and community impacts of a 280 unit luxury condo development that will add a lot of concrete and cover most of the Pinkston 28 acre parcel.

1. Conflicts with Existing Contested Case:

There is an existing and ongoing contested case ordered July 18, 2023 after Pinkston requested a modification of the MDP requirement, Condition 26, which has not been resolved or withdrawn. This pre-existing case complicates the current situation and requires careful and thorough consideration to avoid conflicting outcomes.

The overlap between the new MDP submission and the ongoing contested case, recently scheduled for hearing dates by the Administrative Law Judge, presents a clear conflict, potentially undermining the integrity of the administrative process and the thoroughness of environmental safeguards.

3. Incomplete and Segmented Drainage Analysis:

The MDP lacks a comprehensive, systematic approach to drainage planning, focusing on individual developments rather than the entire area. This segmented method fails to address the cumulative impact of the development on the surrounding environment, particularly on sensitive areas such as Poipu and Waiohai Beaches and the Kāneiolouma Heiau.

The absence of a detailed narrative and a hydrologic map detailing existing drainage facilities and flow patterns for the entire petition area is a significant oversight. This information is crucial for understanding the stormwater runoff interactions and is required per the County’s Stormwater Manual (Section 2.2.1).

The MDP’s failure to integrate drainage impacts from the broader area risks significant environmental consequences, underscoring the need for a more holistic and regionally aware approach to drainage planning. Please see the Declaration of Civil Engineer and Hydrologist Matt Rosener found herewith.

1. Request for Detailed Review and consolidation with ongoing contested case:

In light of these concerns, FOM strongly urges the Planning Commission to consolidate the MDP review and consideration with the Matter already ordered to an Administrative Law Judge for a Contested Case Hearing. A consolidation of the MDP for review, study for sufficiency during the administrative hearing already set to commence at the end of February will allow a thorough and detailed review of the MDP with aid of expert testimony to assure compliance with Condition 26. This review should encompass all aspects of drainage, environmental impact, and community concerns to ensure a sustainable and responsible approach to development.

Given the serious nature of these concerns, we urge the Planning Commission to deny the requested approval of the MDP required by condition 26 and instead consolidate the request for approval of the very recently completed MDP with Applicant’s prior request to modify Condition 26, now scheduled by the hearing officer to commence late February 2024. For the safety of the beaches and the public’s right to a clean and healthful environment, (Article 9 of the Hawaii State Constitution), the MDP should receive an adequate and comprehensive review with the opportunity to obtain the information now missing from the MDP to assure protection of the down slope beaches and the Kāneiolouma Heiau. Please see the Declaration of Civil Engineer and Hydrologist Matt Rosener found herewith.

We appreciate your attention to these critical issues and trust that the Commission will prioritize the preservation of our island’s unique environment and the well-being of its communities.

[Declaration of Matthew Rosener]

Posted 12/10/2023

Aloha,

Posted 12/9/2023

Testimony at the Board of Land and Natural Resources (BLNR) heaing on Wailua/Coco Palms, 12/8/2023. Video will begin with Bridget Hammerquist.

Testimony at the Board of Land and Natural Resources BLNR heaing on Wailua/Coco Palms, 12/8/2023. Video will begin with Felicia Cowden.

Posted 12/6/2023

Aloha,

Aloha,

Posted 11/04/2023

Aloha,

 Posted 10/31/2023

Grove Farm and HPM Cited

Aloha,

1. Another Win for Our Community:On October 20, 2023, Kauai County Planning Director, Ka`āina Hull served a Notice of Violation and Cease and Desist Order on Grove Farm and HPM for their illegal lumber mill operation in the Old Kōloa Sugar Mill. Earlier this year, Kauai County Planning Commission issued special use permits to HPM who had applied to the Planning Department for the permits, intending to erect a large Cirque du Soleil style tent (100′ x 200′) for the construction of trusses and modular walls. The three acre parcel that HPM leased from Grove Farm shared a lot line with the residential Ag lots in Poipu Aina. Those residents, FOM, and many from Kōloa, objected to the permits HPM requested because of HPM’s improperly cited industrial operation that would involve large trucks as well as the noise that would be generated by air guns and saws operating daily by HPM. The Planning Department issued the special use permits and an Appeal was filed before Judge Watanabe. After review of our State and County Ag Ordinances, the Court, Judge Watanabe revoked the special use permits which the Planning Commission had issued to HPM. After they lost their permits, HPM and Grove Farm moved the operation into a portion of the old mill, operating without any permits.

We went back to the Planning Commission and supported a request for a Declaratory Order to stop the illegal activity. The attached is the result of that further hearing. The following are part of a press release that will be issued by a media group on behalf of Friends of Maha`ulepu and Save Kōloa.

“Kōloa doesn’t need and would not be helped by large double and triple axle trucks driving through our small town, loaded with lumber and forklifts headed for an operation on Ag land in the old sugar cane mill,” said Elizabeth Okinaka of Save Kōloa. “HPM has been illegally using this Ag land without any permits, operating saws and noisy air guns as they build trusses and modular walls. What we need is for Grove Farm to bring back our small farmers, who used to lease their land to increase our food sustainability after sugar ended.”

“One wonders if we are part of the wild west,” added Bridget Hammerquist, President of the community group Friends of Maha`ulepu. “HPM’s activities at the Old Kōloa Sugar Mill do not support agriculture and are considered illegal on land zoned for agriculture. Now that a Notice of Violation and Cease and Desist Order have been issued by the county’s Planning Department, we hope that all HPM illegal operations in Kōloa will end.”

2. State Department of Land and Natural Resources Board of Directors Comes to Kauai for a Meeting to Hear Community Concerns (e.g. Violations at Coco Palms)
   West Kauaʻi
   Waimea High School’s Cafeteria
   9707 Tsuchiya Road, Waimea
   November 4, 2023
   9:00 am – 12:00 pm

East Kauaʻi
Kauaʻi High School’s Cafeteria
3577 Lala Road, Lihue
November 4, 2023
4:00 pm – 7:00 pm

Happy Halloween to all and don’t for our match end of year giving to a worthy 501(c)(3).

Mahalo nui,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Kōloa, HI 96756
Donate
friendsofmahaulepu.org
[email protected]
(808)742-1037

Posted 10/28/2023

Aloha,

FOM Prevails in Court

Posted 10/23/2023

To Whom It May Concern,

Posted 10/23/2023

Aloha,

Posted 10/20/2023

Aloha Chair and Members of the Kauai County Planning Commission,

On behalf of Friends of Maha`ulepu, many of whose members reside in or near the District of Wailuanuiaho`āno, please accept this testimony regarding the proposed development of a “350 room Resort” at the site of the former Coco Palms Hotel. This testimony is offered to assure that this Commission is informed of several important considerations as the Commission considers the annual report required of the Developer. As the Commission is aware, after its destruction by hurricane Iniki in 1992, the Coco Palms site has had many unsuccessful would be developers. See this timeline of the owners through 1992 and then the six owner/developers after 1992 who have all been unsuccessful in their alleged restoration efforts.

The Wailuanuiaho`āno district, including the lands where the former Coco Palms Resort has been, is a unique and sacred area that represents an important part of Kauaʻi’s history. This area was once the social, political and religious center of Kauaʻi. On behalf of our members, please consider suspending any further activity at the former Coco Palms site for the following reasons:

• Despite the requests of this Commission and the Board of Land and Natural Resources on April 14, 2023, the current would be developer RP21 owned by Reef PCG made no effort to meet with the community until October 18, 2023 just days prior to their report back date to this Commission. Their notice of their 10/18/23 meeting was three days prior to the meeting, no doubt impacting the number of people who were available to attend. At their meeting, the developers had no microphone and their voices could not be heard by at least half of those in attendance. The public also had to raise their voices in an attempt to be heard. The developer claimed that those in attendance were “a vocal minority” of individuals opposed to the hotel. In fact, as public comments filed with this Commission will likely establish those in attendance represented a mere minority of a much larger majority of Kauai residents opposed to yet another Resort Hotel. When the Coco Palms was last in operation, 31+ years ago, Kauai did not have the number of Resort Hotels it does today, nor the many vacation rental options for the islands tourist visitors. The public who attended the developers meeting, planned last minute and without any sound system, were clear that another Resort Hotel was not what Kauai needs.
• There is no current SMA permit that complies with State law. As the Hawaii State Supreme Court ruled, SMA regulations adopted in 1992 were applicable to a permit entitlement that was issued in 1982. The Court explained that the State interest in protecting the shoreline is sufficiently great that it is the Commissions duty to assure compliance with current regulations even when dealing with a pre-Iniki entitlement:
  “Because the Planning Department petitioned the Planning Commission in 1996, Chapter 12 was already in effect, and therefore, governed the Planning Commission’s authority to revoke, amend, or modify the 1981 SMA Use permit for changed conditions.Furthermore, the Planning Commission’s Rules of Practice and Procedure clearly authorized the Planning Commission to order compliance with the SMA Use permit… Indeed, in issuing its decision and order, the Planning Commission must fulfill its statutory obligation under the CZMA to “preserve, protect, and where possible, restore the natural resources of the coastal zone of Hawaiiʻi.” § HRS 205A-2. “ Morgan v. Planning Department 104 Haw. 173 (Haw. 2004, pages 186-190)
• This developer has not conducted a Kapa’a Kai analysis, a condition that is legally required before permits are issued by the Planning Department for a development of this size. As such, any permits they claim to hold are not legally enforceable at this juncture.
• The developer’s annual report should include but may not include the fact that they received a Notice of Violation and an Order to Cease any activity on the state leased or revocable permitted lands adjacent to the former Coco Palms site. The leased Wailua Coconut Grove (12+ acres) was leased to the former owner AmFac, a 65 year lease that commenced 8/18/1983 with expiration 8/17/2048 RP 21 told the public and reported to the County Council that they have a current lease to these lands. The following link to BLNR April 14, 2023 meeting contains the statements of the Director of the Department of Land and Natural Resources who informed the attorneys for RP 21 that they do not have a valid lease to the Wailua Coconut Grove. That lease issued by the State requires any attempted assignment to an entity other than the designated leasee, AmFac, would be invalid unless the attempted assignment was approved and rendered valid by the Department of Land and Natural Resources. The DLNR Director, Dawn Chang also advised the attorneys for RP 21 and Reef PCG that they do not have a right to the three parcels previously held under revocable permit by Coco Palms Joint Ventures LLC, an entity whose corporate status was involuntarily revoked by the State of Hawaii December 4, 2017. Meeting link and pertinent portions of BLNR hearing follow: 04/14/2023 Board of Land and Natural Resources Meeting
  Director Chang states (see above link at 3 hrs 6 min) RP21 attorney confirms they do not represent or have legal connections to Coco Palms Ventures LLC
  Director Chang states clearly (see above link at 3 hrs 8 min 30 sec – 3 hrs 10 min) and informs RP21 attorneys and owner representatives that any attempted assignment of the State lease is invalid until approved by the BLNR Board. Through questioning of RP21 owners and their attorneys, the BLNR Board establishes that whatever alleged assignment they hold has never been approved by the State of Hawaii Land Board.Director Chang establishes (see above link at 1 hr 27 min) that no one at the BLNR meeting has legal authority to speak on behalf authority of Coco Palms Venture LLC – Chad DeCoursey, John Gibb and John Ritta all said they do not have legal authority to speak on their behalf.
• Any development permits should be suspended because this is without question a large development in a wetland area that involves State land, drainage to a nearby river and the ocean through a large canal at the rear of the hotel which runs under Kuamoʻo Road releasing directly to the Wailua River and there has never been an environmental assessment or EIS for this site. On November 9, 2023, there will be a hearing on a Summary Judgement Motion filed in the 1st Circuit, in an action filed for the HEPA violation and for the failure to review any potential environmental impacts from the planned restoration/construction: I Ola Wailuanui vs BLNR Civil No. 1CCV-22-0001495
• Developer cannot proceed because their Army Corp of Engineers NPDS development waiver expired earlier this year.
• Developer has failed to produce the traffic assessment report as a condition of their permits to spite the known Kapaa Wailua corridor traffic congestion.
• The Wailua Wastewater Treatment Plant is already overburdened, currently emitting noxious odors at and near the proposed construction site and currently has reported inadequately treated sewage spills into the ocean. How can it possibly handle the addition of a 350 Resort when by its own DEA released September 23, 2023 1/3 of the plants operational capacity has been lost to malfunctioning equipment and disrepair.

We implore you, as the County of Kauai Planning Commission, to not let this project proceed further without completion of the above and without the unqualified assurance that our island environment and our quality of life will not be irreparably harmed.

Mahalo nui,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
friendsofmahaulepu.org
[email protected]
(808)742-1037

Posted 10/19/2023

Development Happening Everywhere

Aloha,

Posted 10/15/2023

Aloha,

Posted 10/5/2023

Aloha,

Aloha,

The Latest on Pinkston’s 280 Luxury Condos in Kiahuna and 60+ Luxury Units in Kukuiula Development

On September 12, 2023, we wrote and shared that the Kauai Planning Commission had received and accepted the Planning Director’s Determination that Gary Pinkston and his development firm Meridian Pacific had allowed their Tentative Subdivision Approvals to lapse. Based on his failure to timely request an extension of time on the Subdivision Approvals, the Kauai County Code states that the Approvals became “void as a matter of law”, preventing any further subdivision development at Kukuiula or Kiahuna Plantation in Koloa. On further review of the County Code, we learned that a developer is required to have a valid Tentative Subdivision Approval before they can obtain a Grubbing and Grading permit. FOM is committed to preserving the rural community in which we live. Therefore, we asked our attorney to prepare a demand to the Department of Public Works to rescind Pinkston’s Grubbing and Grading permits for both developments. Here is the letter from our attorney. Incorporated in her letter are the two letters from the Kauai Planning Director to Pinkston’s contractor informing him that both the Kukuiula development and Kiahuna development Subdivision Approvals are void and are no longer valid.

Koloa Historic Sugar Mill Illegally Hijacked for Industrial Lumber Mill Use Without Any Permits

Please find a copy of the archeological complaint that was served on both the State Historic Preservation Division and the County of Kauai by Deidre Encarnación, an archeologist that we retained when reviewing the features of archeological significance in Mahaulepu Valley. She has been on our mailing list since and when she saw the pictures of the HPM alterations to the Koloa historic sugar mill, she called to see if she could help. The first email in this the chain that follows is a copy of the complaint served on the State and the County by the archeologist. Ka`āina Hull, County Planning Director, responded. He thanked her for her complaint and said that is being added to the investigation the County has initiated against HPM. His response follows. Dei interned at the State of Hawaii Historic Preservation Division. She worked with Susan Lebo, the Chief Archeologist there. Dei has a Masters Degree in Archeology and we are hopeful that her complaint along with the one we filed will help to end HPM’s unpermitted use of the Old Mill which is, by code, suppose to be limited to the support of an agricultural operation.

Mahalo nui,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
Donate
friendsofmahaulepu.org
[email protected]
(808)742-1037

———- Forwarded message ———
From: Kaaina Hull <[email protected]>
Date: Tue, Sep 19, 2023 at 10:54 AM
Subject: RE: Koloa Mill Violations
To: Dei Encarnación <[email protected]>

Thank you for your communication,

An investigation has been initiated for this site, and we will file this additional communication with our enforcement team for their review. Mahalo.

Ka`āina Hull

Director of Planning

County of Kaua`i

4444 Rice Street, Suite A473

Līhu`e, Hawai`i 96766

(808)-241-4050

From: Dei Encarnación <[email protected]>
Sent: Monday, September 18, 2023 6:28 AM
To: Kaaina Hull <[email protected]>
Subject: Koloa Mill Violations

CAUTION: This email originated from outside the County of Kauai. Do not click links or open attachments even if the sender is known to you unless it is something you were expecting.

Dear Ka’āina Hull:

I am writing to you in order to address the unpermitted industrial activities that have been taking place within the former Koloa Sugar Mill on the island of Kaua’i (see attached photos). The mill sits on agricultural land that has been repurposed by HPM Building Supply for construction equipment-related purposes that are not agricultural in nature and that do not commercially support agriculture. HPM had recently been denied permits to develop on an adjacent parcel, and the move into the Old Koloa Sugar Mill has bypassed the environmental impact process and is completely without permits.

The Old Koloa Sugar Mill has been recorded as SHPD Historic Site #30-10-9302, and is a National Historic Landmark listed on the National Register of Historic Places (#66000296).  The primary features of the site are the Old Sugar Mill chimney and foundation located at the intersection of Koloa Road and Maluhia Road, however the standing ruins of the mill buildings are a contributing factor to the overall integrity of the site and are a feature on the Koloa Heritage Trail (Ka Ala Hele Waiwai Ho’oilina o Kōloa). Impacts to the former mill buildings result in an indirect effect to these primary features.

The lack of an archaeological inventory survey or other proper procedures prior to the commencement of work is in direct violation of Section 106 of the NHPA, which mandates effects of undertakings on “historic properties” and seeks to avoid, minimize, or mitigate any adverse effects on such properties (36 CFR 800.1(a)).

As you are aware, the use of the site without an AIS or proper permits is in further violation of Chapter 6E of the State of Hawaii Revised Statutes, which states that “before any construction, alteration, disposition or improvement of any nature, by, for, or permitted by a private landowner may be commenced which will affect an historic property on the Hawaii Register of Historic Places, the landowner shall notify the department of the construction, alteration, disposition, or improvement of any nature and allow the department opportunity for review of the effect of the proposed construction, alteration, disposition, or improvement of any nature on the historic property. The proposed construction, alteration, disposition, or improvement of any nature shall not be commenced, or in the event it has already begun, continue, until the department shall have given its concurrence or ninety days have elapsed.” The landowner has neither received permits from the Kaua’i Planning Department nor notified SHPD of the work currently being done at the site.

HPM has altered the appearance of the Old Koloa Sugar Mill site, by painting former sugar mill buildings and placing signs in direct conflict with the historical integrity of the property (see attached photos). To date, no assessment of the current condition or integrity of the mill site has been conducted, and the use of the site by HPM for industrial purposes continues. As an archaeologist and advocate for historic preservation, I am requesting an investigation into the unpermitted development and use of Site #30-10-9302, in an effort to protect the heritage of the town of Koloa and the State of Hawai’i.

Sincerely,

1. Encarnación, M.A.

Posted 9/13/2023

Posted 9/8/2023

On July 17, 2023, Governor Green signed an Emergency Proclamation declaring a moratorium on State and County laws that regulate the construction of homes. That moratorium predated the Lahaina fires but claimed it was necessary to address the housing shortage statewide which the Governor claimed constituted an “emergency”. Unfortunately our housing shortage has been many decades in the making and the moratorium does not require construction of affordable housing but rather gives developers, contractors, infrastructure (utility companies, highway contractors, etc.) an unregulated pass to develop with only a 22 person Governor appointed Board to give a thumbs up or a thumbs down for all plans filed with the State during the moratorium period. As the following link to today’s Civil Beat article reports, many throughout the state are opposed to the Governor’s action:

Posted 8/29/2023

Timeline of the Maui wildfires

Posted 8/17/2023

Choose Prevention, Prevent Destruction

Posted 8/10/2023

You Won’t Believe It

Aloha,

Four months ago, FOM filed a Motion to Intervene on KIUC’s Application for an electric rate increase before the Public Utility Commission (PUC). FOM filed its Motion after many of our members received a notice from KIUC that the requested rate increase for electricity would result in an increase in the residential rate payers bill between 18-19.5%. The PUC finally issued an Order last Friday allowing FOM to participate in the rate hike proceeding. Our focus is to be on the West Kauai Energy Project which includes a large pump storage operation and a new separate hydro-power plant installation at Puʻu ʻopae. The pump storage operation is expected to have 2 large multi million gallon reservoirs with minimal water loss because solar panels are to provide the electricity to pump water from a lower reservoir to an upper reservoir during the day and the upper reservoir will then fall by gravity at night to create hydro-power. The new hydro-power plant at Puʻu ʻopae is projected to divert 11,000,000 gallons daily to run through its penstock and out the tail raceway to a dry gulch that will drain to the ocean until homes and Ag land are developed at Puʻu ʻopae. When the development is complete, it is estimated that 6,000,000 gallons of the 11,000,000 gallons of water diverted from the Wailua River be redirected to the Department of Hawaiian Home Lands (DHHL) acreage at Puʻu ʻopae. Until that time, however, the 11,000,000 gallons a day diverted from the Wailua River represents a loss of 4.15 billion gallons annually.

In preparing our case, our attorneys have been evaluating the KIUC annual audited financial statements. We could use help from any  members with financial or accounting skills. The current long term debt of KIUC exceeds $260,000,000. KIUC’s cash on hand is $48,000,000 which KIUC needs to pay the annual interest rate on leases, loans and debt retirement. If we had to meet our debt obligation today, KIUC would be bankrupt. However, accountants have reported that KIUC is still a “going concern” because they have been paying the interest and they are retiring our debt at the rate set out in the financial schedule, paying $12,$10, $17 million etc each year depending on what is required to meet the debt that needs to be retired in that year. FOM, is very concerned, that because KIUC has only a total of 34,000 accounts (residential, commercial, resort, etc.), KIUC is risking becoming insolvent. As we are a co-op all members are financially responsible for the debt our utility creates.

As co-op members, we are all owners of KIUC and financially responsible for co-op debt. The West Kauai Energy Project is projected to cost $355,175,587.00. That development cost will double KIUC’s indebtedness. Our attorney’s are working diligently to prepare for the hearing before the PUC. We do not have a date for the hearing at present but expect it will be set soon.

The information about the West Kauai Energy Project can be accessed in the following five links:

Posted 8/7/2023

Coco Palms on DLNR Agenda Friday, Aug 11, 2023

Aloha,

The latest happenings in our environmental world impacting Kauai:

1. The State Board of Land and Natural Resources (BLNR) will once again address Coco Palms on their Agenda this coming Friday. Agenda item D7 will address the revocation of revocable permits for the access and use of State lands at the old Coco Palms site. There is a lease associated with the coconut grove that is not part the Coco Palms Agenda item D7 to be addressed this coming Friday.The testimony submitted by FOM follows below. We believe that the RPs issued to a now defunct corporation, which have been renewed every year for past 5 years, even though the corporation that held the RPs no longer exists must be revoked now. The State is proposing to revoke the RPs as of December 31, 2023. Since they were issued to an entity that no longer exists, since the States staff submittal makes it clear that the State can revoke the month to month permits at any time, we support revocation now. That would clear the way for the non-profit, E ola Wailua Nui, to apply for the permits and begin the process of conserving and securing the site as a park-historic cultural center.If you intend to submit written testimony, please do so by Wednesday August 9, 2023 and email it to [email protected]. If you want to testify at the hearing via Zoom, please make your request to Darlene S Ferreira at [email protected].You will find a copy of our testimony to BLNR and prior correspondence to BLNR Director, Dawn NS Chang below.
2. If you want to follow and join the upcoming climate change forum, please see the attached flyer for details.

Friends of Maha’ulepu                       friendsofmahaulepu.org                                                 8/7/2023

Director Dawn NS Chang and the
Board of Land and Natural Resources
State of Hawaii
Honolulu, HI

RE: Agenda Item D7 – Termination of Revocable Permit Nos. S-7407, S-7444 and S-7613 to Coco Palms Ventures LLC, Permittee, Effective December 31, 2023, Wailua, Kawaihau, Kauai, Tax Map Keys: (4) 4-1-003:044, (4) 4-1-003:017 and (4) 4-1-005:por. 017. 

Aloha Director Chang and Members of the Board,

Please accept this emailed correspondence in strong support of the Boards Revocation of RPs S-7407, S-7444 and S-7613 for TMKs (4) 4-1-003:044, (4) 4-1-003:017 and (4) 4-1-005:por. 017 on Kauai, Hawaii. The subject RPs were last issued to Coco Palms Ventures LLC, a limited liability corporation whose corporate status in the State of Hawaii was involuntarily revoked 12/4/2017. Thereafter, the RP and tax payments were not received for six years.

At the last meeting where these RPs were reviewed by the Board, Director Chang confirmed that RPs are not transferable from one entity to another. The staff submittal in item D7 confirms that the subsequent application attempt by Coco Palms Hui LLC, Chad Waters and Tyler Green, was never finalized because they were never able to provide tax clearance.

We appreciate the Board terminating the subject RPs, a necessary and required legal action at this juncture. We were concerned that when this agenda item was taken off the July 28, 2023 calendar, the 45 comments submitted by people all over the State were no longer as likely to be reviewed by the Board. We strongly believe that those comments should be considered by the Board. For that reason, we have attached the 45 comments that people across the State took the time to write. Every comment offered is in support of termination of these RPs and preservation of this site as a historical area worthy of conservation not development.

Mahalo nui loa,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
Donate
friendsofmahaulepu.org
[email protected]
(808)742-1037

——– Forwarded Message ——–

Aloha Dawn N. S. Chang, Director and Chair Board of Land and Natural Resources,

Re: Report to the Board of Land and Natural Resources the status of Revocable Permit Nos. 7407, 7444 and 7613 to Coco Palms Joint Ventures LLC Wailua, Kawaihau, Kauai, Tax Map Keys: (4) 4-1-003:044 por., (4) 4-1-003:017 and (4) 4-1-005:017. Hearing 4/14/23.

On April 14, 2023, several members of our non-profit group and myself appeared before you and testified on the above matter. We are not affiliated with A E Ola Wailua Nui. However, we are in support of what they are trying to do and recognize that it is beneficial to our island community. On April 19, 2023, a Notice of Apparent Violation and Order was sent by the Office of Conservation and Coastal Lands (OCCL) to Coco Palms Joint Ventures, LLC via certified mail to Reef Capital Properties’ RP21 Coco Palms, LLC (RP21). During the April 14th DLNR meeting: 1) the attorney and representatives who testified for RP21 stated they had no legal relationship with Coco Palms Joint Ventures, LLC; 2) they also stated they had no relationship with and were not representing them in any capacity; 3) Hawaii State Records report the business license for Coco Palms Joint Ventures, LLC was involuntarily terminated in December of 2017; 4) Coco Palms Joint Ventures, LLC, to our knowledge, was not on island or doing business anywhere in the State of Hawaii since 2016; 5) Coco Palms Joint Ventures, LLC Coconut Grove Lease with the State was never assigned their lease with the required approval of DLNR and until recently, was six years in arrears on their real property tax obligation to the County of Kauai; and, 6) even though another entity has cleared the back taxes, the lease is still in the name of the non-existent entity and the RPs that were extended and renewed to that entity are not transferable.
We realize there are timelines for a response to the OCCL Notice. We are very appreciative that you took the time to appear in person before the Kauai County Council May 10, 2023 to discuss the administrative process. We also appreciate the detailed information of the current violations of the would be developer RP21 who has neither a lease to the Coconut Grove nor any RP for the Coco Palms site.

We have recently learned that the DLNR Land Agent on Kauai advised the non-profit, Kauai, Eola Wailua Nui, that the RPs were not available for application. On April 14, 2023, however, we heard your Land staff describe their assistance to RP21 with their submission of an application for the RPs at the Coco Palms site. We know that a non-profit on Kauai, Eola Wailua Nui, had also before our April 14th meeting completed their application for the same 3 RPs identified above.

If possible, there are many members of our organization and others that would appreciate any information as to when and if the RPs that were held by Coco Palms Joint Ventures, LLC will be terminated. Would you please advise of the next steps? It would seem that there is ample grounds to terminate the RPs because of the lack of communication between Coco Palms Joint Ventures, LLC and the State. Prior to your administration, a lawsuit was filed against DLNR because the Agency renewed Coco Palms Joint Ventures’ RPs, even though that entity no longer exists. The community also knew that there was no relationship between Reef Capital Properties its RP21 Coco Palms, LLC and the RP holder, Coco Palms Joint Ventures, LLC. As soon as those RPs are terminated, since they were extended and renewed to an entity that no longer exists, the lawsuit should become moot. This would help the community to move forward with its applications and efforts to conserve this very revered site. This is a genuine interest of many of our members and a large body of concerned citizens on Kauai.

Any information you can provide will be helpful.

Mahalo for your courtesy in this regard,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
friendsofmahaulepu.org
[email protected]
(808)742-1037

Posted 7/12/2023

Doubly Bad Day For Developer

Aloha,

Good news. There wonʻt be permits to start construction of Pinkstonʻs 280 luxury condo development units on Kiahuna Plantation Drive anytime soon! We were on the news again last night. You can watch the coverage via the following link. Thanks to all our supporters who turned out to testify. Some of our local island residents made the news. FOM hired Bianca Isaki and Ryan Hurley, Oahu attorneys who did an excellent job putting a Petition to Revoke and a Petition to Intervene and a request for a Contested Case hearing to the Kauai County Planning Commission. The Petition to Revoke is now before the County Planning Director. The Commission granted our Petition to Intervene an our request for a Contested Case which will be heard by an administrative law Judge. We were successful! The Commission granted our Petition to Intervene. Attached is a Comment that describes why we filed these Petition.

https://www.hawaiinewsnow.com/2023/07/12/stop-it-now-frustrations-grow-kauai-over-property-development-poipu/

Our Petition to Intervene and request for a Contested Case hearing before an administrative law Judge was joined by attorneys for PRP, Pacific Resource Partnership. PRP is the backbone of Hawaii’s construction industry, representing the Hawaii Regional Council of Carpenters and more than 240 of the state’s top contractors.

By way of update on Coco Palms, we are still awaiting the Stateʻs action. Please see our recent letter to DLNR Director Dawn N. S. Chang.

Posted 7/5/2023

Hearing July 11th

Aloha,

On July 11, 2023 the Planning Commission will hold a Public Hearing at 8:30 am at 4444 Rice St., s 300. They will be addressing Gary Pinkstonʻs request for an extension of time on his Tentative subdivision approval. By County rules a developer is expected to either ask for an extension or submit final subdivision plans within one year of the their Tentative subdivision approval. Pinkstonʻs Tentative subdivision approval was granted August 10, 2021. He he did not ask for an extension before the one year lapsed. One year and 10 months after his initial Tentative approval, he just now asked for an extension of time.

The County and Pinkston were served July 3rd with a Petition to Revoke all permits and a Petition to Intervene on the attempt to modify Condition No. 26 of the Project Development Use Permit relating to drainage requirement for Pinkstonʻs property at 5425 Pua A Laka St.. If you want to read our Petitions, click on the links. The Petition to Intervene is large because of its exhibits, the first 23 pages are the Petition.

Please share this email. We appreciate your support. We have retained a legal team to help us with this fight. My work on this and our other environmental projects is, as always, pro bono. If you are able to help us with a current donation, we can assure you it will be put to good use.

Posted 6/29/2023

Bad Day for Developer

Aloha,

Posted6/26/2023

Subdivision Agenda Item 1. b.

Friends of Maha’ulepu                                 friendsofmahaulepu.org                                                 6/26/2023

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To: Commission Chair and Members of the Kauai County Planning Commission

From: Friends of Maha’ulepu and Save Koloa

Regarding: 1. Preliminary Subdivision Extension Request

1. Subdivision Application No. S-2021-7
   5425 Pa’u A Laka, LLC.
                                   Proposed 2-lot Consolidation and Resubdivision into 4-lots
   TMK:    (4) 2-8-014: 032
   Koloa, Kauai

Aloha Chair and Planning Commission Members,

This Comment is filed with the sincere request that it be read and considered before any action be taken on the part of the Subdivision Committee or the full Commission. There have been some very serious departures from the law with a failure to enforce Land Use Commission (LUC) Conditions. The outright misrepresentations from the applicant also warrants revocation of the tentative subdivision approval and the permits granted in 2006 and described in the 2006 letter on the Project Development Use Permit PD. U-2006-25, Use Permit U-2006-26, Class IV Zoning Permit Z-IV-2006-27, copy attached.

Revocation of the subdivision approval and permits are called for in this case because there has been a complete disregard of the 1977 State LUC District Boundary Amendment Decision & Order, and the Orders that followed. Docket No. A 76-418. Each parcel was to receive a certificate of archaeologic and biologic clearance before any actual work commenced: (The J linked items below represent exhibits that have been admitted in the Circuit Court in the matter E OLA KAKOU HAWAII, ET AL., Plaintiffs, Vs. COUNTY OF KAUAI, ET AL., Defendants. Case #5CCV-22-000036).

If the Commission is unwilling to revoke the tentative approval and the 2006 permits for the development of TMK (4) 2-8-14:32, we ask that this body take no further action until all Court actions are final.

The following is a true and correct copy of the 1977 LUC Decision & Order, Condition 7, penciled on the Condition there is a note from the LUC to remind readers that the Condition was amended. Following Condition 7, there is a link, J-1, to the full text of the LUC Decision and Order:

J-1. 1977 LUC Decision and Order in Docket No. A 76-418

In 1978 the LUC strengthened Condition 7 by requiring that “no actual work on any portion of the subject property begins until the archaeological and biological study for that portion to be worked on has been completed.” The County failed to enforce LUC Condition 7. There was no action taken by the County of Kauai to access TMK (4) 2-8-14:32 the 28 acre parcel that is the subject of the subdivision application and the 2006 Planning Department permit, letter attached, before actual work commenced which involved rock crushing, excavation, burial mound leveling, construction of a staging area that required significant earth and rock movement. Truck loads of rock were delivered to the property and used to fill in voids that occurred after blasting began May 26, 2022. No biological survey was conducted until May of 2022, months after the County issued a grubbing and grading permit that allowed actual work to commence, a complete failure to enforce LUC Condition 7. The 1978 amended Condition 7 is set forth below. Following the Amended Condition 7, there is a link, J-2, which is the full text of the LUC Amended Decision and Order:

J-2. 1978 Amendment to LUC Decision and Order in Docket No. A 76-418

Revocation of all permits is the only reasonable action to be taken at this juncture. The County speaks to a desire to create affordable workforce housing. In practice, however, every subdivision application currently under development in Koloa is for the construction of investor vacation rental property with advertised prices for the smaller units in excess of $1 million. The public needs this Commission to take the demand for workforce housing much more seriously. Clearly, the County Counsel, per the attached resolution promised the LUC that when Kiahuna was redistricted there would be 140 units constructed for Kauai residents, and the target would be the workforce in the Koloa/Poipu area. That promise was not kept.

Instead, in 2006, the 28 acres that was to be 140 affordable homes per the map in the attached County resolution, was granted a permit for 282 vacation rental condominiums. Attached are 2 documents from the LUC records which detail the development of Kiahuna parcels from Moana Corporation to Kiahuna Mauka Partners (KMP) and Eric A. Knudsen Trust (EAK). After 1989, LUC Orders were applied jointly and severally to KMP and EAK. On Christmas Eve 2003, KMP and EAK sat with the Planning Director and Laurel Loo on behalf of the County Attorneyʻs office and agreed to a division of responsibilities for the remaining unsatisfied LUC Conditions. The 3 party agreement was signed by the Planning Director, a representative of KMP, EAK and the County Attorney. Laurel Loo was the County Attorney who signed the Christmas Eve agreement. Despite the fact that the LUC Orders were the joint responsibility of KMP and EAK, they sat with the County and agreed upon a division of the responsibilities among themselves but never put the matter before the LUC for approval. They modified the LUC orders without LUC consent. By its terms, the attached 2003 3 party agreement applied to TMK (4) 2-8-14:32.

When Gary Pinkston purchased TMK (4) 2-8-14:32, his escrow closed June 1, 2021. Former County Attorney Laurel Loo was now on the other side representing Pinkston with his negotiations, getting the best deal she could with the County to satisfy Pinkston’s affordable housing requirement, as yet unmet for that parcel.

Actual work commenced on the parcel without compliance with either archaeologic or biologic requirements of Condition 7.

In recent court testimony by Jodi Sayegusa and Kenneth Estes, both confirmed that the County received many complaints and had been receiving them before the August 10, 2021 subdivision hearing on this parcel. See their relevant testimony herein below:

“Q. There were public complaints – excuse me — made prior to August 2021, though; correct?

1. I don’t know the exact dates, but there were a lot of complaints related to development in the Poipu area.
2. And, in fact, you helped respond to some of those complaints; correct?
3. There were a lot of complaints, so I can’t remember each and every complaint I was assigned to research or followed up with.”
   E Ola Kakou et al Vs County of Kauai 5/25/2023 Testimony of Jodi Sayegusa Page 46
4. And did you have any communications with Kenny Estes prior to February 3rd, 2022, about this project?
5. We likely talked about — I mean, often some of the planners or the discussion in the office may discuss, you know, hot topics or things that are happening.Q. So was this a hot topic?
6. Again, there were a lot of public complaints for over a year about various things including development in Poipu and including this particular development…
7. Okay. But after the letter and the draft study came in, was submitted to the Planning Department on February 3rd, 2022, you had a meeting with Ka’aina Hull, Kenny Estes, and Dale Cua, correct, about this draft biological study?

A. Again, it was in response to a number of public complaints. The topic was the biological species, including the cave spider, and also we discussed LUC Condition 7.
E Ola Kakou et al Vs County of Kauai 5/25/2023 Testimony of Jodi Sayegusa Page 65-66

“Q. To the best of your recollection, have you — with regard to this project, you received public comments and you turn those over to Ka’aina?

1. MINKIN: For the record, the witness nodded his head up and down. So you need to answer out loud, sir.

THE WITNESS: Okay.

THE COURT: Okay. Thank you.

BY MR. MORIMOTO:

1. And you turn them over to Ka’aina. Before turning them over to Ka’aina, did you read them?
2. Yes, I did.
3. And after you read them, did you make any determination as to whether or not there should be follow-up or further research done?
4. With regards to this project, I believe that we were fielding a lot of concerns. There was a lot of public testimony submitted at the time of the subdivision going before the subdivision committee for their review. Because of those concerns that we fielded, it was determined after the subdivision committee meeting that we would contact the US Fish and Wildlife Service.”
   E Ola Kakou et al Vs County of Kauai 2/3/223 AM session Testimony of Kenneth Estes Page32To this day, Ms Sayegusa testified that the County has never made a finding that LUC Condition 7 was complied with. In fact, the County cannot ever make such a determination because work commenced without compliance of LUC Condition 7, making it impossible for there to ever be a finding of compliance. The burial mounds were flattened, the ground was excavated, rocks were moved, and underground blasting occurred May 26, 2022 through January 2023. This commission, our County Council and the Public can view the detonation and destruction of burial mounds and the natural topography of this parcel on the Save Koloa YouTube channel which contains a chronology of photographs and videos that document the alteration of the parcel before any attempt to comply with LUC Condition 7. Unfortunately the ground disturbance was so severe that LUC Condition 7 and County Condition 1.k.(b) can never be satisfied as the following testimony from Ms Sayegusa suggests:

“Q. So when you were assigned to review the Montgomery report, were you also assigned to make findings about whether or not it satisfied Condition 7?

7. The context of which I was provided the report and also requested to review it was so we can discuss together compliance with LUC Condition 7.
8. And did you make any findings with regard to that compliance?
9. It was more of a discussion, no like technical findings or conclusions or anything like that.
10. So there was no written findings or no memorialization of any conclusions that you made in that meeting?
11. For the purpose of the meeting —
12. Yes.
13. — or resulting from the meeting, there was no findings resulting from the meeting.”
    E Ola Kakou et al Vs County of Kauai 5/25/2023 Testimony of Jodi Sayegusa Pages 98-99

In addition to Mr Estes failure to assure compliance with County Condition 1.k.(b), a requirement  called for in the tentative approval letter, and LUC Condition 7, Mr Estes testified he “did nothing” about his duty to enforce the County Code as it pertained to protection of the environment and flora and fauna in the area:

“Q. Now, isn’t it true that Section 9-2.1(a)(2) says that specific consideration shall be given to the preservation of natural topography such as drainage, swales, rock outcroppings, slopes, areas of natural beauty, particularly the areas of scenic or environmental importance or value and areas of historic or scientific interest, to the preservation of existing flora and fauna, to the retention of major land forms and to the preservation of important vistas?

1. MINKIN: Objection; leading. Document speaks for itself. If Mr. Morimoto wants to show it to the witness, let him show it to the witness rather than having the witness go verbatim on — or basically try to recall what the code section reads based on Mr. Morimoto’s reading it into the record.”
   E Ola Kakou et al Vs County of Kauai 2/3/223 AM session Testimony of Kenneth Estes Page 22

“Q. With regard to the Yellow Hale subdivision application, what did you do as a planner processing the application to give specific consideration to the preservation of natural topography and areas of scenic or environmental importance?

1. I did nothing.
2. What did you do to give specific consideration to areas of historic or scientific
   interest?
3. I didn’t do anything.
4. On the property, are there areas of environmental importance? Did you determine whether or not there were areas of environmental importance located on the property?
5. I would need to review the documentation again.
6. Did you include any conditions to protect areas of environmental importance or value?
7. No, I did not include any conditions.
8. In the — and when I’m talking about conditions, I’m talking only about the clearinghouse form, right. Did you include any conditions to address areas of historic or scientific interest?
9. No, I did not.”
   E Ola Kakou et al Vs County of Kauai 2/3/223 Testimony of Kenneth Estes Pages 75-76

Despite all of the complaints lodged, this Commission approved the applicant, Gary Pinkston dba Yellow Hale tentative approval and grubbing and grading commenced even though no grubbing and grading permit had been issued:

Planning Commission’s tentative approval August 11, 2021

In his Court testimony, Kaaina Hull stated that the Planning Department did not enforce Condition 7 because they “surmised” that it had been met earlier. He testified, however, that when they took a look at department records they could find no evidence of any biologic or archeologic review for the 28 acre Pinkston parcel, TMK (4) 2-8-14:32. He also admitted that the Planning Department was served with the following Petition to deleted Condition 7, based on the alleged satisfaction of that condition. In his court testimony, Mr. Hull stated that in 2014 the County was served with the developers Motion to Find Conditions 5 and 7 through 12 satisfied. Following the States opposition which included reports to the LUC that Condition 7 had not been satisfied for TMK (4) 2-8-14:32 as well as other undeveloped parcels, the developer withdrew their application to be relieved of Conditions 5 and 7 though 12. All of the documents in the following 2 links were in the County Planning Department’s files and there were multiple filings served on the County with efforts to delete Condition 7 multiple times leading up to the final effort in 2014. There is no question that Condition 7 had been an issue and its non satisfaction was addressed multiple times before 2021. Mr Hull also admitted that they never found any documents suggesting that  Condition 7 had ever been satisfied. The pertinent portions of Mr Hull’s testimony follows:

“Q. So with regard to Condition 7, what steps did the department take to ensure that it was complied with?

1. Prior to the tentative subdivision application, no additional steps were taken after — after reviewing the case. So it was brought to our attention after the tentative subdivision approval that concerns were being raised about the LUC Conditions. At that time, it kind of got more elevated, I’ll say, to my review as opposed to my just tangential or cursory signing off of staff reports.

So while it was put on my radar that there were issues concerning Land Use Conditions, I pulled the team together to go over the Land Use Commission Conditions and that’s really where we started looking at all the conditions, in particular Condition No. 7, going through the files, seeing if it had been met. You know, in those discussions I can state that we surmised that the previous department heads as well as planners and attorneys had felt that the condition had been met, which is why — because when you look at Condition No. 7 and the LUC Conditions, this is not a condition that’s germane just to this property, right.

This property is 30 acres in size, but the LUC Condition is a LUC Condition of approval on a State Land Use Condition Amendment that had do with practically 450 acres, otherwise known as the Kiahuna area, and a number of applications had previously been reviewed and acted upon by the planning commission and department. And so when we reviewed the entire file, we surmised that previous — previous planners and attorneys had determined the condition sufficed, but understanding these concerns were being raised further, particularly as it was to Condition 7, ultimately it was decided that we should ask the applicant to halt work and provide an actual letter and communication from a biologist as well as an archeologist explicitly going over the conditions of No. 7 or — excuse me — the layout of Condition No. 7.

1. As it applied to this particular property?
2. As it applied to this particular property, correct.
3. So you’re saying that you reviewed files?
4. We reviewed the overall series of documents associated with the properties. Q. And you’re saying that there were — are you saying that there were documents from planners and attorneys that indicated that Condition 7 had been satisfied?
5. No. I’m saying that within the documents that were in the file and the fact that the LUC Condition was established in 197–
6. ’78?
7. 1978. Since 1978 until now, dozens of discretionary permits, planning commission level permits, subdivisions, and hundreds of zoning permits have been processed in this area. And so understanding that the LUC Conditions would be particularly scrutinized in the very beginning, especially since it was so fresh, that with all those actions having occurred in this region and the fact that, I believe, there were — was like a flora and fauna study associated with the file, there were portions of Kiahuna that were designated as archeological preserves, there were portions designated as endangered species habitats, that with all that that happened in the past, that at some point during those actions, previous staff in consultation with the attorney’s office had made the determination.
8. Was there any written finding to that effect?
9. We didn’t find anything.
10. So how did you make that determination?
11. I wasn’t making that determination. I’m saying — like, I’m not making that an official determination that it had been met previously. What I’m stating is that from what we could surmise with all these actions in the past, that it appeared that previous — the previous administrations had acted and felt that that Condition 7 as well as all the other LUC’s Conditions had been met in taking subsequent actions on approval of zoning permits.

What was before me when being put on notice that Condition 7 is an issue is, has it been met under your interpretation, determination? And looking at the concerns that were being raised, in an abundance of caution, we again asked the developer to cease operations out there until a letter from a biologist and an archeologist could be provided.

1. Mr. Hull, can you point to a particular document in your file that reflects what you just stated, that the previous commissions or previous planners or attorneys had concluded that Condition 7 was satisfied?
2. I cannot.
3. I’m going to direct your attention to Joint Exhibit 4 — excuse me. First directing your attention to Exhibit No. 3, J-3. So, Mr. Hull, in 2014, Kiahuna Mauka Partners, LLC, filed a motion to delete Condition 7, correct, in part, Condition 7?
4. Correct.
5. And turning your attention to Exhibit J-4, this was opposed by the Office of State Planning; correct?
6. Based off of this document, yes.
7. And is the County of Kauai or the planning department a party to these proceedings?
8. Generally.
9. And, in fact, when you look at the certificate of service, it appears that the planning department was served; correct?
10. Where is the certificate of service?
11. That would be page — the last page of Exhibit J-3.
12. Of J-3?
13. Yes. Do you see that?
14. I do.
15. And there’s — the planning department was served by hand delivery?
16. It.
17. And Michael Dahilig was the planning director at the time?
18. Yes.
19. And it was also served on the county attorney’s office; correct?
20. Correct.
21. Were these documents part of what you reviewed in making the determination that Condition 7had been satisfied?
22. I want to be clear that I didn’t make a determination that it had been satisfied prior to —
23. May 12th?
24. May 12th or May 16th.
25. 2022?
26. Yeah. I’m not making that assertion.I’m just stating that in reviewing the statements, we could surmise that a previous director and staff had made that determination.
27. But you could find no document?
28. But I could find no documentation.
29. And, in fact, when you look at this motion, it was filed in 2014; correct?
30. 2013 I have.
31. And this is some — well, 2013. So this was seven years after the use permit was granted?
32. Correct.”
    E Ola Kakou et al Vs County of Kauai 2/3/223 Testimony of Kaʻaina Hull Pages 21-26

“Q. Turning your attention to the next page. Based upon the opposition filed by the Office of Planning, Kiahuna Mauka Partners withdrew their motion; correct?

1. Correct.
2. Did you review this document?
3. I don’t recall seeing this document.
4. But it appears that it was sent to the planning department?
5. It does.
6. And how are these things filed, these Land Use Commission documents? Are they filed with — do you keep a file in the planning department?
7. We do.
8. And so would this motion have been in that file?
9. It should have been.
10. Was the file something that you reviewed?
11. Restate the question.
12. Did you review that Land Use Commission file?
13. I did not.”
    E Ola Kakou et al Vs County of Kauai 2/3/223 Testimony of Kaʻaina Hull Pages 28-29The following are links to the full text of the 2014 application to be relieved of Conditions 5 and 7 through 12 that Mr Hull refers to in his testimony. He acknowledges that each of the following were served on the County Planning Department during 2014 which would have made the Planning Department aware of LUC Condition 7 and the lack of compliance therewith:

J-3. Kiahuna Mauka Partners, LLC’s Motion to Delete Conditions 5-7-12

J-4. State Office of Planning, maps, their exhibits and the developers Motion to Withdraw

Compounding the Countyʻs failures, the applicant deliberately misled the County and represented that they had satisfied County Condition 1.k.(b) pertaining to the need to protect endangered and threatened species, particularly the blind cave spider and blind amphipod. Gary Pinkston delivered a letter to the Department of Planning on February 3, 2022 claiming “On behalf of 5425 Pau a Laka, LLC, Iʻd like to update the Planning Department of our efforts to meet Condition 1.k.(b) and confirm that the project area is cleared of habitats for the Kauaiʻi amphipod and cave spider worthy of perservation.” (sic)

J-7. February 3, 2022 letter from Gary Pinkston to Kaaina Hull transmitting Tetra Tech draft study and USFWS letter dated October 27, 2021

Nothing could have been further from the truth. The report he submitted with his letter, and titled, “Kauanoe o Koloa Project Draft Biological Resources Survey Report” (Draft Report), was indeed an unsigned Draft Report and it did not make the finding he claimed in his letter. Not only was it not a satisfaction of Condition 1.k.(b), rather the Draft Report recommended that the biologic survey still needed to be done. Section 5.2.5 of the Draft Report specifically told the developer that the biologic survey was not yet done and needed to be before ground disturbing activity commenced:

“5.2.5 Listed Cave Invertebrates

Tetra Tech recommends the following based on USFWS’ (2019) avoidance and minimization measures

for the Kaua‘i cave wolf spider and Kaua‘i cave amphipod:

* Prior to ground disturbance, contract a qualified biologist to survey the Project Area for depth of

soil deposits and the presence of caves. Any areas with soil deposits greater than 12 inches (305

millimeters) are not likely to provide appropriate habitat or have the species present.” – Tetra Tech Draft Report page 14. Link to the full text of the Draft Report follows:

J-8. Tetra Tech draft study

The applicantʻs passing off an unsigned Draft Report and stating in his transmittal letter that they had satisfied Condition 1.k.(b) of the attached 2006 Planning Commission Conditions of Development, was blatantly false and meant to mislead the County into granting a grubbing and grading permit prematurely. They did extensive work on the property with large rock crushing, burial mound reduction, etc and never intended to check for the blind cave spider or its amphipod  or whether the parcel constituted suitable habitat for them.

For all of the above stated reasons, no further work should be done on this parcel. It currently borders right on Hapa Trail with no buffer for much of the adjoining trail. Attached hereto are copies of the requests for a Contested Case on this issue because of the serious and environmental transgressions that have been allowed to occur. This parcel should be returned to a natural state and it should be determined that the developer lost his right to develop this parcel because he lied to the County in his claim that an important legally required condition that was to be completed before any actual work/ground disturbing activity on the parcel.

Mahalo nui loa,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
Donate
friendsofmahaulepu.org
[email protected]
(808)742-1037
Elizabeth Okinaka
[email protected]

Elizabeth Okinaka
[email protected]

Posted 6/5/2023

A Win 4 Koloa

Aloha,

Court Revokes Permits for HPM operation in Koloa

You may recall that we shared that Hawaii Planing Mill (HPM) had a plan to construct a mill in Koloa adjacent to the old sugar mill just off the eastern bypass road. HPM had leased a 3 acre parcel from Grove Farm between the sugar mill and Poipu Aina, an adjacent residential Ag community. HPM probably chose Koloa for their mill to support builders who plan to add more than 600 new homes to the Koloa Poipu area. The mill would have produced modular/pre-fab walls and trusses/support structures for roofs. FOM was asked by the residents of Poipu Aina to help protect their environment and quality of life. Had HPM developed the mill, Poipu Aina would have been subjected to large trucks coming and going between 7:30 am and 4:30 pm daily, bringing lumber from Nawiliwili Harbor while other trucks would come and go to pick up and deliver  walls and trusses to construction sites. This was detailed in the HPM permit application  filed with the County Planning Department. In addition to the truck traffic, there would have been the noise from fork lifts beeping throughout the day, compressor powered nail guns, saws and other heavy equipment. The HPM mill structure would have been on an 800 ft long by 100 ft wide surface covered by a large “Cirque du Soleil” type tent open on both ends. Noise and the lumber dust would not have been contained.

We asked FOM supporters to comment on the project and many comments were filed with the Kauai Planning Department. To spite the comments and objections to the HPM commercial operation filed by our members and others, the planning commission granted HPM Special Use permit application to construct their mill on Ag zoned land.

What were we to do then? We helped them obtain legal representation. Poipu Aina filed an action against the Planning Commission challenging their decision to grant HPM’s Special Use permit. FOM worked with lawyers and we researched the issue further. We found a Hawaii Supreme Court case which held that the Hawaii Revised Statutes which defines the permitted uses for Ag land cannot be circumvented by a developer’s desire to do an unpermitted activity. Specifically, permitted use of Ag land has be Ag or Ag related. They can’t apply for a Special Use permit to get around the Ag zoning requirements. The Court agreed and revoked HPM’s Special Use permit. A win for Koloa, its environment and our quality of life. After all, it’s hard enough to get around this area without having to compete with long HPM double axeled flatbed trucks.

Trial on the Save Koloa case ended last week.

We are awaiting the Court’s decision which is anticipated in late July. The lawsuit was filed objecting to the County issuing permits for the 282 unit condominium development above Keokis (investor vacation rental resort property) and against Gary Pinkston and Meridian Pacific for beginning actual work on the Kiahuna Plantation site without first complying with State Land Use Commission Orders and County Zoning Ordinances. The State Orders and Zoning Ordinances required biological clearance and archaeological clearance from a qualified biologist and a qualified archeologist before any “actual work on the site”. That requirement was not met. In addition to the destruction of 3 burial mounds and at least 8 months of underground blasting, the removal and crushing of large rocks believed to be part of a Haiau, tear down of historic rock walls, the developer and the County never adhered to the requirement of meeting with residents in the area, and failed to do anything to assure preservation of the environment or its features of archaeologic or biologic significance. We will keep you posted after we hear from the Court. FOM filed the action in conjunction with Save Koloa, also a 501(c)3 community based organization.

Coco Palms

If you missed watching the County Council meeting May 10, 2023, and want all the scoop on what is really happening at Coco Palms, the following is a video link to the Council’s May 10th meeting. The Coco Palms issue consumed nearly 10 hours of the Council’s meeting that day. If you watch the first 1 1/2 hours you will hear the State of Land and Natural Resource Director detail the many violations committed by RP 21 Coco Palms LLC (RP 21), the latest “would be” developer. During the meeting it was  revealed that this latest in a string of developers has no intention of actually building the 354 room resort as they publicly claimed, contrary to representations made to the public by Patrick Manning in an article to TGI. Rather, the developer’s lawyer, Mauna Kea Trask, admitted to the council that RP 21 had been taking down Coconut Palms and clearing the property to enhance the sale of the property because RP 21 wants to recoup the 22 million dollars they loaned the last developer on whom they had to foreclose. Mauna Kea stated that the 22 million had been borrowed by Reef Capital Properties from Fire and Police Retirement Fund and they needed to get the money back to the fund. If you watch the last 1 1/2 hours of the following link you will hear our Council Chair, Mel Rapozo, discuss his regret that the County was duped by yet another developer. He also discussed a County Resolution that is in process whereby the County would exercise its right of eminent domain, taking the property away from any developer for purposes of conservation.

May 10, 2023 Kauai County Council Meeting
https://kauai.granicus.com/player/clip/2558?view_id=2&redirect=true&h=3adfd76fc2926a3b560a9bb229e4758b

Posted 5/4/2023

Much to Share

Aloha,

Since our last Hui email, it has been a whirlwind for FOM. Not wanting to give you too much to read, I will give you the news via the following bullets:

• FOM challenged DLNR and KIUC for the renewal of the water permits at Blue Hole which allowed water to be taken from Waiʻaleʻale and Waikoko streams for the years 2020 and 2021. Our challenge/court action was based on the damage to the ditch system preventing KIUC from using the water for any beneficial purpose. The diverted water could not get to their hydro-power plants. Rather, the streams were diverted and the diverted water was wasted while rate payers covered the fee charged by the State to KIUC. The Court on Oahu ruled in our favor and we recently won both cases.
• We were asked to help with Coco Palms which involves preventing more waste into the Wailua stream and the Ocean from an already overburdened Wailua Wastewater Treatment Plant. FOM sponsored 6 community members, who attended the State Board of Land and Natural Resources (BLNR) meeting on Oahu April 14, 2023. Three of our group were  Hawaiian lineal descendants with ancestral ties to the Coco Palms property. The testimony given by all that attended was clear and persuasive. During the meeting, it was established that the current developer has removing coconut palm trees, grading and grubbing the property without permits or a lease from the State. Within 5 days of the meeting, the attached Cease and Desist Order was issued. The following link you can view the meeting and the fiery discussion on Coco Palms. You will even hear the new BLNR Director, Dawn NS Chang. as she informs the latest in the long series of developers that they are working on the property without permits or any lease from the State. The Director was not pleased.  Testimony begins at about 45 minutes into the meeting, agenda item D1: https://www.youtube.com/watch?v=trRz9lHDQhI
• The current would be developer, RP21 Coco Palms LLC, returned to Kauai after the meeting but did not stop working. FOM sent the email below asking the director to intervene because the coconut palms are still coming down. One of the BLNR board members informed the developer that cutting down trees on the land of another is viewed as an act of war by Hawaiians. Listen to the podcast of a KKCR show to hear more about the Coco Palms latest developer violations: https://drive.google.com/file/d/1BoMDDPhigMZG1Yk5i8G2_uKPJCrTzJY1/view?usp=share_link
• See also attached letter from our Kona Moku and now, Kauai island Poʻo, Billy Kaohelauliʻi to BLNR/DLNR Director.

——– Forwarded Message ——–

Aloha Chair Chang and members of the Board of Land and Natural Resources,

On behalf of the members in the organizations I represent, please accept our sincere appreciation for the opportunity to present Coco Palms information Friday April 14th 2023, Agenda item D1. We need your help. We just learned Friday, April 21st, that there are more than 75 coconut palms already down, and many more marked with an x for removal.

After your meeting, an OCCL letter, “Notice of Alleged Violation & Order” was sent to Coco Palms Ventures Llc. Unfortunately, Coco Palms Ventures Llc(Ventures) no longer exists and their corporate status was “involuntarily terminated” by the State December 4th, 2017. Ventures also failed to pay taxes on the RPs or lease.

The OCCL letter describes conduct , supported by photographs, describes work done by the current developer, RP21 Coco Palms Llc (RP21), not Ventures. The tree removal did not have State approval. RP21 is not on any lease or permit from the State. Their managing director, Patrick Manning, told the Garden Island (TGI) that their extensive coconut palm tree removal and vegetative clearing was an “oops” he claimed that RP21 was working with the State and would soon remedy the “oops”

Joseph Kamai, one of the lineal descendants who testified before you April 14th, and whose great great grandmother is buried on the State lands that are part of the Coco Palms site, identified the burial mounds in the photographs lodged with the Board that day. He returned to the property Friday April 21st and counted at least 75 coconut palm stumps and was shown many more that workers at the site told him they had marked with an x for their planned removal. Based on the following TGI quotes from Patrick Manning of RP21, which ran this past Saturday, April 22nd, we are very concerned that you and your department need to intercede as soon as possible to ensure that the remaining marked coconut palms are not added to the pile of those that have already been destroyed. In his statements to TGI, Mr. Manning it is unclear weather RP21 will protect the coconut palms now marked for removal. We realize the OCCL letter did not go to RP21 and based on the following Manning comments, RP21 needs direction ASAP:

“But Reef Capital Partner’s Managing Director Patrick Manning said that they are committed to resolving the issue and continuing with their approximately $250 million plan to reconstruct the 350-room(it was less than 100) resort over the next three years.”(If it were a reconstruction as Manning claims, it would only be 96 room, the size of the hotel when it was destroyed in 1992. )

“But Manning said that the situation was an honest oversight by his team, and they are working with the DLNR to receive the proper rights. ‘The problem is that we thought we had approval from the county. It was an innocent mistake. We were clearing, getting ready for demolition. We didn’t realize that, well, we missed a step,’ said Manning, adding that ‘receiving proper permissions is a complex process’.”(We question the credibility of a $250,000,000 developer that doesn’t know to get permit from an owner before accessing their land. )

“’We’re working closely with the DLNR to remedy that and just keep moving forward. It hasn’t changed our plans at all. Just having to fix an oops,’ said Manning in an interview with The Garden Island on Friday.”

“Manning wasn’t ‘100 percent sure’ what had been placed in the unauthorized area, … ‘We have removed palm trees for sure on our property. I’m not 100 percent sure if we removed palm trees on the DLNR property,’ he said, adding that they intend to replant any trees that have been cut down. ‘It’s just we can’t get in to do the demolition if there are trees prohibiting us from getting into the concrete.'(So this means they get to cut down trees that are in their way on State lands?)  https://www.thegardenisland.com/2023/04/22/hawaii-news/coco-palms-developer-responds-to-dlnrs-alleged-land-use-violation-letter/

RP21 only recently filed application for the following RPs. We understand that I Ola Wailuanui has also filed applications for the same following RPs and lease. They intend to conserve the site to honor the royalty, their traditions and cultural practices that were a significant part of the area’s historic past. From Mr. Manning’s remarks in TGI and those of the RP21 representatives that appeared before you on April 14th, it is unclear weather they know where State, Conservation, and Crown lands are. Someone needs to check the trees marked for removal, and they need to stop removing any vegetation from State lands. When Coco Palms was destroyed in 1992, it had less than 100 hotel rooms. Now they want to put 350 on that site, and they say they don’t know if the State’s land is an integral part of their plan.

RP7407 – 0.412 acres TMK (4) 4-1-003:044
RP7444 – 0.855 acres TMK (4) 4-1-003:017
RP7613 – 0.122 acres TMK (4) 4-1-005:017
State land lease – 14.8 acres Public Trust Land, Coconut Grove TMK (4) 4-1-003:005

In their current permit applications on file with the county, the RPs and lease are clearly an integral part of the development, because while the hotel rooms are on fee land that is currently the subject of a disputed court action on appeal, the State lands are being relied on for parking areas and access roads, as suggested in Mr. Manning’s above statements. We urge the State to get copies of their County permit applications.

On the YouTube recording of your April 14th meeting, the following is confirmed (https://www.youtube.com/watch?v=trRz9lHDQhI):

• RP21 Coco Palms Llc, does not have an RP for any State land on the Coco Palms site. 3:04-3:06
• Chair Chang established that Mr DeCoursey and RP21 is not affiliated with and does not represent Coco Palms Ventures Llc. 3:06:40
• Chair Chang established that the State is the land owner and the County failed to come to the owner before issuing building permits. 03:06:58
• Chair Chang made it Clear that RP21 Coco Palms Llc is not on the lease. The lease is still in the name of Coco Palms Ventures Llc, the State is the lessor, and there can be no assignment without prior approval by the BLNR board. 03:10:00

Recent videos showing the extensive work being done at the site:

https://drive.google.com/file/d/17eN2o4VW6VhOFXd_xNxD76LH7p0vR71c/view?usp=sharing

https://drive.google.com/file/d/1Ekg4etnNtgN1EntRBg_g2knCHQCohuYC/view?usp=sharing

https://drive.google.com/file/d/1czWJ_an2B7lxOz4nSHu4JDkyryCZh_jE/view?usp=sharing

Mahalo nui loa,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
Donate
friendsofmahaulepu.org
[email protected]
(808)742-1037

Posted 3/29/2023

Posted 3/23/23

Posted 12/12/2022

Friends of Maha’ulepu

FOR IMMEDIATE RELEASE – December 12, 2022

Media Contact
Bridget Hammerquist, Friends of Maha’ulepu, Kia`i Wai `o Wai`ale`ale:
p: 808 742-1037 | e: [email protected]

Good news for east Kauai streams? The Department of Land and Natural Resources announced Friday December 9, 2022 that they had received timely notice from KIUC that they would not be renewing their Revocable Permit with the State to divert waters from Wai`ale`ale, Waikoko and other streams along the transmission system. Their decision not to renew the permit they have held since 2003 came after significant public concern which include 2 lawsuits filed earlier this year by Friends of Maha`ulepu and Earthjustice because ditch repair of the transmission system has prevented KIUC from using the diverted waters for hydro power production since June 2019. Despite their inability to make any beneficial use of the diverted waters, KIUC has paid the State more than $180,000 since June of 2019. That money has gained Coop members nothing. Now that KIUC can no longer use the waters from the poorly maintained ditch system, they have announced their intent to terminate their permit, attempting to evade their responsibility for the deferred maintenance and repairs.

We are pleased that KIUC has finally chosen to terminate their permit. However, we ask the State to make sure that KIUC satisfies their contractual requirements, one of which provides that the State, in recovering their water transmission system, should make the needed repairs and bill KIUC. The photos in the supplement to our Comment and the report of North Shore Hydrology confirm significant disrepair and disabling damage to the entire water transmission system because of KIUC’s failure to comply with RP 7340, a notarized copy of which can be found in the supplement to the FOM Comment. The ditch damage is resulting in at least 4 million gallons of water loss daily. For more details view the following.

Friends of Maha`ulepu BLNR Testimony 12/9/2022
https://youtu.be/ieC1jF8eZpk

—
Mahalo nui loa,

Posted 12/7/2022

It’s Amazing

Aloha,

After years of appearing before the State Board of Land and Natural Resources (BLNR) objecting to the ongoing base flow diversion of the waters of Wai`ale`ale and Waikoko streams, KIUC notified the Board that they will not be seeking renewal of their permit to use the diverted waters for the minimal hydro power production at their two 100-year old hydro power plants. The Comment FOM filed today with the Board details that KIUC has not been able to use the diverted waters since June 2019 because of damage to the ditch system which they have failed to repair. Despite the fact that they couldn’t use the diverted water for the last 3 years, the State has continued to renew their permit in December 2019, 2020 and 2021. Since 2019 KIUC has maintained that they were trying to decide whether or not they would repair the damage to the States ditch system from deferred maintenance and storms. In stark contrast to KIUC’s position, the contract KIUC signed with the State when they took over the operation of the diversions and ditch system mandates that they do the repairs and maintenance they now claim they are considering. See RP 7340, the complete agreement entered by KIUC in the supplement to the FOM Comment. RP S-7340, in fact, details numerous condition/requirements/mandates that KIUC has consistently ignored. On behalf of FOM we applaud KIUC’s decision not to seek renewal of RP S-7340. The waters diverted, as described in the report of facilitator Robbie Alm, were up to 40 million gallons daily which was an exorbitant amount for 1% of the islands daily power need. As further detailed in our Comment, their failure to maintain the system has created an abundant water waste that is occurring and must be addressed.

If you would like to comment on the upcoming hearing this Friday December 9, please direct you testimony to the addressees identified in our transmittal email below.
Mahalo nui loa,

Posted 11/9/2022

Aloha,

As we approach the end of the year we realized FOM members have not had an opportunity to meet for some time. If you can, join us this Saturday November 12 at Koloa Union Church, 3289 Poipu Rd, Koloa, 1-3 pm for an update on FOM projects, our Supreme Court victory and more. The highlight of the meeting will be a book talk on Water and Power by authors (our attorney) Bianca Isaki and recent past Chair of the Hawaii State Land Use Commission (LUC), Jonathan Scheuer. Finding a location for our meeting was very difficult. We are grateful to Koloa Union Church for the use of their facility as all neighborhood centers and libraries were completely booked. The Church has made their facility available to us and asks only that all who attend wear a mask which can be removed once you’re seated inside and the program begins. A small ask in exchange for staying safe and having a chance to meet again.

If you can’t come Saturday, the following is a podcast link that will take you to an interview earlier this week on KKCR as FOM was interviewed about our work this past year on island. You’ll find the interview direct and frankly critical of public officials who are developing the island beyond its infrastructure capacity.

FOM interview on KKCR begins at 47:32.

Thanks again to all are recent donors who make our work possible. If the opportunity presents itself before the end of the year, just a reminder, all donations are tax exempt as we maintain our valid 501(c)(3) status, are EIN # is 47-2596342. If you make any purchases on Amazon, please use https://smile.amazon.com/ch/47-2596342. If you don’t use this link, be sure to use smile.amazon.com and choose Friends of Maha`ulepu as your charity. When you do this, there is not increase in the price but Amazon donate 2% of their proceeds from your purchase to FOM. It all helps!

—
Mahalo nui loa,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
Donate
friendsofmahaulepu.org
[email protected]
(808)742-1037

Posted 10/9/2022:

1.    Long-term commitment to pumped storage/ hydropower has significant impacts on natural streams, the historic landscape, and cultural resources.
a.    Project prevents stream restoration agreed to in the mediated West Kauai Settlement Agreement after the end of sugar.
b.    No disclosure of foreseeable impacts of already documented failure to meet interim instream flow standards.
c.    A 65 year water lease, which KIUC is seeking, constitutes a significant impact requiring an environmental impact statement (EIS).

2.    The Need for the Projects energy is not sufficiently described, thereby curtailing discussion and assessment of reasonable alternatives.
a.    No discussion of other renewable energy initiatives on island or integration of these projects into KIUC system.
b.    Without a ceiling to actual energy needs, project and alternatives cannot be meaningfully assessed.
c.    Significant impacts of building two new hydroplants outweigh their need.

3.    Projects likely to adversely impact development of resilience to climate change.
a.    No disclosure of reduced rainfall on Project operations.
b.    Increasing power and its reliability historically increases reliance and expansion of energy-consumption.

4.    Significant impacts of the project on social and economic welfare undisclosed.
a.    The impact to the West Kauai environment and depletion of its natural resources is being done to produce power elsewhere on island.
b.    Projects displacement of impacts to West Kaua‘i community is an environmental justice issue.
c.    Financial benefits of the project will not remain in Kaua‘i (off island operator, AES).
d.    Information disclosed in the DEA conflicts with what KIUC disclosed to the Public Utilities Commission (PUC). To the PUC KIUC reported payments to AES would be $0.07-0.08/kWh but in the DEA KIUC reported payments of  $0.14-0.16/kWh to AES for power generated likely increasing the cost to ratepayers.

5.    Project water allocations significantly impact food production and agriculture.

6.    Additional feasible alternatives were not considered.
a.    Develop several closed-loop pumped storage projects in areas across Kaua‘i, including areas where most of the energy need is generated, Lihue, Princeville, etc..
b.    An ocean reservoir closed-loop project would not remove freshwater from natural sources but can be used to provide power as has been successfully done in other communities.
c.    Remove the Pu‘u ‘Ōpae hydroplant from the proposal. Pump storage makes sense but pulling out 23.5 million gallons daily from the watershed does not.
d.    Before spending more of ratepayers money to make power that is not yet needed, KIUC should implement mandatory energy usage reductions.

7.    Failure to Adequately Address the Significant Economic Impacts for the Proposed Project to ratepayers. No mention of the current Coop $256,000,000 debt or how ratepayers will cover this debt and that which will be added by these projects.

Posted 9/24/2022:

Aloha,

Big news, at 9:30 am this morning the Hawaii Supreme Court issued a 54 page unanimous decision overturning each of Judge Watanabe’s decisions granting 4 judgements in favor of Kauai Department of Water (KDOW). Bottom line, WE WON BIG!

The five Justices ruled that KDOW “did not provide a candid assessment” (they lied) in the environmental review process. They also ruled that KDOW did not comply with State law, the basis of our original claim to the Circuit Court. In the unanimous decision of the court today, they reversed Judge Watanabe’s grant of Summary Judgement against our 10 causes of action. The Justices ruled that “KDOW must issue a new EA”, remanding the case to judge Watanabe to consider granting us injunctive relief. See Conclusion and quoted references above page 52 Supreme Court Decision attached.

If you recall, we shared that KDOW had not been honest when they told the public the reasons for the new 18 inch main that would be added to an existing 16 inch main taking water from KDOW/Grove Farm’s Waiahi surface water treatment plant (SWTP). When the draft EA was released in the Fall of 2017, they claimed the addition of a larger new main was to address a pressure problem in their line. However, after we filed the suit to challenge the inadequacy of their EA, we found an initial EA on the State OEQC website that stated the actual reasons for the new 18 inch main, the need for increased water capacity to service Grove Farm’s Lihue Development Master Plan. See KDOW’s own statements in the 2016 EA contrasted with the 2017 Public Notice below:

Withdrawn 2016 KDOW EA (check out stated purpose for increased capacity to meet Grove Farm’s housing development needs)

“Project Summary

Provide a description of the proposed action and purpose and need in 200 words or less.

The County of Kaua‘i, Department of Water (DOW) Ka‘paia Cane Haul Road 18-inch Main project proposes 9,000 linear feet of 18-inch waterline along Kapaia Cane Haul Road from Ma’alo Road to Kuhio Highway. The project is needed because the existing transmission facilities along Kuhio Highway from Ma’alo Road to the Lihu‘e area are not adequate to utilize the capacity from the Waiahi surface water treatment plant (SWTP) for the planned affordable housing development of the Lihu’e area…”

2017 KDOW EA published for public comment in Fall of 2017 without reference to the earlier withdrawn EA

“Project Summary

The Department of Water, County of Kauai (”KDOW”) proposes to construct an approximately 9,000 foot long, 18-inch diameter water transmission main (”Relief Line”)…” Claiming later in the EA that the line was needed to relieve pressure.

News Coverage

Let’s Join An Effort to Reopen the Road to Maha`ulepu. Sign by October 1st.

The other news is we need signatures on a petition to Grove Farm by October 1st. Many have written and asked what can be done to persuade Grove Farm to reopen the road into Maha`ulepu Beach. The following link allows you to join and sign with many others who believe Grove Farm should open Maha`ulepu Road so young and old can access that beautiful coastline.

https://chng.it/8RCYHzBRm5

Posted 9/13/2022:

Posted 8/1/2022:

Posted 12/7/2021:

Another Win. Just a short update:

1. This last week, thanks to public input and a very organized group in Princeville (Save Open Space), who FOM joined, our County Council enacted into law Bill 2838 which prohibits any commercial campground facilities or structures on land zoned Open Space (OS). This law allows for resident and visitor camping by permit on a temporary basis but prohibits any permit structure or commercial operation. After months of public objection to Starwood Capital’s plan for a 50 unit glamping facility in Princeville, and no doubt having seen the writing on the wall when Mason Chock and Luke Evslin formulated a bill to prohibit organized commercial campground sites in Open Space, Starwood Capital withdrew their glamping application on file with the Planning Commission 11/30/2021. Great result, our Open Space remains open.
2. On December 1st the County Council adopted the 10 year Solid Waste Management plan which was modified in response to public comment. Based on their adopting resolution, I think every member of the Council is more keenly aware of the need for concrete waste diversion operations like curb-side recycling.

Wish us well as we are once again contesting the renewal of KIUC’s month to month revocable permit to divert waters from Wai`ale`ale and Waikoko streams. It its recent application for renewal to be heard 12/10, KIUC admitted that they have not used the water in these streams in all of 2020 and 2021 due to massive damage to the ditch system. The two 100 year old hydro power plants, which the water used to serve, produced less than 1% of the islands power revenue. Bottom line, KIUC has covered the power needs of the island without the water it used to divert. They also acknowledge that the ditch repair will cost at least $1 million. Consequently, we have asked the Board to deny their application for a temporary permit renewal because rate payers are covering a $60,000 annual cost for a permit for nothing for the last 2 years. Not a good use of hard earned rate payers money.

Have a happy holiday.

Mahalo nui loa,

Posted 11/23/2021:

Please Help. As mentioned in our last email, the one important environmental issue for Kauai between now and the end of the year, is the County Council’s action on the 10 year Integrated Solid Waste Management Plan (ISWMP). State and Federal law require every County to adopt a 10 year plan for the management of that County’s solid waste.

As many of you are aware, our landfill in Kekaha is at the end of its life and we are on borrowed time with the EPA for the continued use of that location. The County had selected a sight for a new landfill at Kalepa, mauka of Hanamaulu. After spending hundreds of thousands of dollars completing an EIS for that location, the County has elected not to go forward at that sight because of the expense associated with its construction.

The final ISWMP that is before the Council December 1st, is lacking in firm goals/priorities to decrease the waste that goes to the landfill through well established waste diversion programs. We have been asked by Zero Waste Kauai (ZWK) to join their efforts at moving the County toward real waste diversion. The plan before them is vague, missing objectives and time-frames. When the consultant responsible for the final plan was questioned recently by the County Council about the cost of a Materials Recovery Facility (MRF) and curbside recycling, previously approved by Kauai County for construction and operation by 2011 with a location and approved final EIS, it was disclosed that the current cost to each household would be just $7.50/month. As Council-member Evslin and other members noted, at least 36% of what now goes to the landfill is recyclable material (paper, glass, plastic and metal). If curbside recycling was implemented, the specialist in waste management at Zero Waste Kauai testified that the recyclables reaching the landfill would likely drop to 11% or less. So, Mr. Evslin asked the consultant how much would their current waste collection and disposal cost decrease once that percentage of waste was diverted from the landfill to an MRF. The consultant responded that that calculation was outside the scope of their study. How could such an obvious cost savings be outside their scope? PLEASE TAKE THE TIME TO SIGN THE ZWK PETITION that seeks to achieve real waste diversion for Kauai which will irrefutably add years to any landfill. Bottom line, if only curbside recycling were instituted that would significantly reduce the 36% of recyclables that currently go to the landfill. ZWK is a fellow environmental organization advocating that the Council adopt a resolution incorporating the following four goals at a minimum.

The four recommended priorities are:

1. 1. Build a Materials Recovery Facility (MRF) and Establish Curbside Recycling
   2. Develop Regional Composting Facilities that take food wastes and sewage sludge in addition to green waste.
   3. Institute Incremental Material Bans at the Landfill for Certain Construction and Demolition (C&D) Waste and Require a Demolition and Deconstruction Disposal Plan as a condition of a Building Permit Where Demolition is Planned.
   4. Provide adequate staff and resources to establish, oversee and coordinate the implementation of the three aforementioned priorities

Please send your testimony to [email protected] as soon as possible and not later than Tuesday November 30. In the subject of your email please enter C 2021-252. In the body of your email please indicate that you are requesting the Council adopt a resolution for the ISWMP that incorporates the above four goal/priorities/objectives.

Even the County’s consultant acknowledged that the minimal cost associated with curbside recycling and the money made by the Materials Recovery Facility sales would undoubtedly lessen the County’s current cost of trash collection and disposal. They just didn’t bother to determine the cost savings. As ratepayers, I hope you join us in asking for real trash diversion programs used in Counties throughout the US with great success.

Mahalo nui loa,

Posted 11/19/2021:

Success! In the last year we have succeeded on several environmental fronts. As we approach the Thanksgiving holiday we want to acknowledge and thank our many supporters who keep FOM funded and/or who keep us informed on Public Notices and developments that threaten our quality of life on Kauai. Every win for the environment is a win for us and all living things that benefit. The following recaps some of this years successes many of them were the subject of FOM member comments and testimonies and we thought you would appreciate knowing the status. We also extent kudos to our friend Carroll Cox of EnviroWatch.org who gave us countless hours of radio time, helping to spread the message about the pending disaster if the industrial dairy at Maha`ulepu had been allowed to operate. Carroll’s work was recently featured in the Washington Post and Seattle Times when he exposed millions of gallons of runoff from the Paradise Bottling Company on Oahu, runoff that was polluting a stream so thoroughly that the alcohol content in the stream was 1.2%.

1. Probably our biggest win for the year was our part in forcing the Hokua Place developer to withdraw their application before the Land Use Commission (LUC) to build 769 condos and homes on the hillside behind Kapaa Middle School. A real win for the entire island which would have suffered miserably under the increased traffic burden not to mention the lack of available water and wastewater services.
2. On March 18, 2021 the Commission of Water Resource Management (CWRM) directed A&B, doing business as McBryde, to restore stream flow to Lawai Stream. Many offered testimony in support of our fight to restore flow in Lawai Stream. Lawai Stream had been diverted since 1906 by the sugar industry. The design of their diversion took all of the flow from the stream at some times causing dry stream bed and interrupting the migratory patterns of fish, Hawaiian shrimp while killing numerous native plants and other vegetation. Thanks to all of you who filed the comments that supported our complaint to CWRM. If you wish to view the recent public meeting, in the first 4.5 minutes of the video on the linked page, you will see pictures of the new concrete diversion that only allows A&B to take medium flows, leaving base flow and high flows in the stream year round. It has been over 100 years since the stream has enjoyed such flows and already biologist are noticing a difference. https://dlnr.hawaii.gov/cwrm/surfacewater/ifs/kauai/2050-lawai/
3. Koloa/Poipu Development Update: On August 10th we and many members offered testimony to the Kauai County Planning Department objecting to developer Gary Pinkston’s proposed parcel consolidation to support his 282 unit condo plan for the last undeveloped parcel along Kiahuna Golf Village Drive right opposite Hapa Trail. Not only would there be a tremendous increase in vehicles on this road with one ingress and egress from the Kiahuna Golf Village developments but also of significance is the highly likely impact to the endangered Blink Cave Spider and amphipod. Entomologist have identified the Koloa/Poipu area as the only place in the world these endangered species can be found. Following the August 10 hearing and likely in response to many comments, the Planning Department Director sent the Developer a letter, see attached. In the letter the developer was told that his permits to build would not issue if it was determined that there was any habitat for the endangered species on Mr. Pinkston’s 24 plus acre parcel. As confirmed in a recent letter to the Planning Department from the US Fish & Wildlife Director, Aaron Nadig, while the larger parcel, the subject of the consolidation effort is not a USFWS designated habitat it is likely a habitat to these unique species endemic to Koloa but at least 3 other endangered species. Another huge problem identified after the hearing is that one of the parcels in Pinkston’s application for consolidation is an Ag parcel while the other appears to be Urban. It’s unlikely that these can be consolidated without going back to the LUC for a district boundary amendment, a requirement for changing zoning. Properties owners are not supposed to consolidate to change the zoning classification of a parcel.
4. Shrimp Farm Update: We now know that the shrimp farm (Sunrise Capital Inc., Kauai Shrimp, etc.) is owned by Hendrix Genetics, a company from the Netherlands. Since our comments were filed 10/29/2021, asking the State to require the shrimp farm to use their engineering skills to better manage their wastewater, we have learned that the State is not supposed to allow the operator to have contamination testing done one mile out to sea unless it is “impracticable” (not code for expensive) to test at their point source of discharge (their plumbing which dumps 5-20 million gallons of wastewater daily into Kinikini Ditch that flow directly over the beach and into the ocean at Kekaha). We have yet to hear what the State intends to do.
5. Glamping Bill Update: Mahalo to all who offered testimony to the County Council in support of the Bill (2838) to restrict developed camp grounds (concrete slabs, permanent camping structures with bathrooms and kitchens, etc.) from development in areas that are zoned Open Space. No question we need Open Space preserved wherever it is on island and we will send out a notice when this Bill comes up for a final vote.
6. Integrated Solid Waste Management Plan Update (ISWMP): Earlier this year we asked our members to offer and we offered comments on the draft ISWMP. The final ISWMP was just presented to the County Council who differed action or approval until December 1, 2021. https://www.kauai.gov/Portals/0/PW_SolidWaste/ISWMP_DOCUMENTS/KauaiCo_ISWMP_Update_Draft4.pdf Please take a minute to let the Council know how important it is to add curbside recycling, a cost of $7.50/household (made clear by the questioning of Luke Evslin), not to mention the cost savings in curbside trash pickup and disposal with the development of curbside recycling. The landfill will be spared and this program is in place around the world and needs to be done on Kauai, especially to lessen the burden to our landfill. Send your comment no latter than November 29, 2021 to [email protected].
7. Finally, we filed a Comment last November objecting to the State’s proposed NPDES wastewater permit for the Waiahi Surface Water Treatment Plant (SWTP)even though the State terminated their permit in 2016 and they continue to operate while polluting the environment without any permit. The new operator, another Grove Farm subsidiary, was asking for a permit renewal relying on an application that had previously been submitted for the terminated permit. Council-member Felicia Cowden asked the DOH Director to further review this irregularity. This is the same water treatment plant which our State Supreme Court agreed to review after ordering the matter transferred from the Interim Court of Appeal. It has been the subject of a $450,000 penalty and is still being allowed to operate without the Federal and State required NPDES wastewater permit. After receipt of all our Comments last November, we received no response from the State Department of Health (DOH). We recently served a FOIA on the State and their response can be found below this email. Bottom line, nothings changed. The pollution of the environment continues and Grove Farm’s SWTP continues to operate unpermitted. Grove Farm is owned by billionaire Steve Case who lives in Connecticut and is doing as little as possible to control their well documented pollution.

Needless to say it has been a busy year. As the year comes to a close please keep us in mind when making charitable contributions. We are a 501(c)(3) non-profit. Tax I.D. number 47-2596342. Your contributions support our work. Thanks to all who contributed this year. Your Board, myself included, are not paid. FOM does its work with one paid typist.

If you shop online with Amazon, please register for Amazon Smile and select Friends of Maha`ulepu as your charitable organization. Amazon in turn sends us a percentage of your purchase without any increase in cost.

Mahalo nui loa,

Posted 11/5/2021:

Did You Know. The shrimp farm in Kekaha may be producing food but is also producing a lot of pollution. It’s not locally owned as many think. Our objective is to assure that the State requires filtration and testing of its wastewater at the point source, where it leaves the farm and drains into Kinikini Ditch. The pollutant exceedences that are now found more than one mile from shore, as detailed in our comment and discussed below, require that the operator test its wastewater at the point of discharge into the ditch because there is no other way to safeguard the people swimming, surfing and wading in those near shore waters or its marine life.

Mahalo to all who submitted a public comment on the wastewater permit application for the Kekaha shrimp farm. If you haven’t already, would you please forward a copy of your filing. Many on island are under the impression that the shrimp farm in Kekaha, Sunrise Capital Inc., is a locally owned operation producing quality food for our residents. In fact, it is another seed farm/CAFO (concentrated animal feeding operation) with one of their primary products the genetic development of shrimp larvae that are packaged and shipped all over the world by the owners/operators Hendrix-Genetics a company based in the Netherlands. That company owns at least 54 companies many of whom are engaged in genomics and aquaculture. On Kauai, since 2017, Hendrix-Genetics has been the sole owner of Sunrise Capital who does business under the Trade Names, Kona Bay, Kona Bay Shrimp, Kona Bay Marine Resources and Kauai Shrimp.

Hendrix-Genetics sells the shrimp they are perfecting here utilizing genetic engineering to deliver seedlings as far away as Ecuador, Indonesia and beyond. FOM does not take issue with the production of shrimp but rather with the failure to use their engineering skills to properly filter their wastewater for pollution that is detected more than a mile offshore. In their own test results, they frequently report Nitrate, Ammonia and Enterococcus (fecal waste) exceedences. Their reports can be found on the Department of Health website but they are also well documented in their NPDES application linked above. In our attached comment we have linked some DOH reports that also document fish kills and pollutants on the beach and near shore waters adjacent to Kinikini Ditch which receives wastewater from the large canal ditch that drains the 5-20 million gallons daily wastewater that is produced by Sunrise Capital from the shrimp farm. The farm is one mile long and .2 mile wide. The google earth images which can be accessed in the links that follow demonstrate the many ponds and large aspect of this operation.

https://www.google.com/maps/search/west+side+of+kauai/@21.9939075,-159.7539071,15.38z?hl=en
https://www.google.com/maps/search/west+side+of+kauai/@21.9939075,-159.7539071,2096m/data=!3m1!1e3?hl=en

Both of the above are google map links for the shrimp farm. The first link allows one to see the many shrimp ponds and also depicts the blue water lines of the canal. The second link shows the shrimp farm but if you zoom in on it, you can see the large canal running around the farm that collects their wastewater, ultimately draining into Kinikini Ditch that drains directly to the ocean. We are hopeful that the State will, at a minimum, convene a public hearing before any permit issues so that we can stress our interest in having a clean ocean, avoiding more unnecessary death of near shore marine life and hazardous exposure to swimmers, surfers and beach goers. Feel free to share this email.

Mahalo nui loa,

Posted 10/26/2021:

Urgent: Please Help. When the environment is threatened we call for public comment because without your help we can’t preserve our environment and the quality of life. We received a very important Notice from the Department of Health that proposes to set a dangerous precedent for the State of Hawaii. Our State Department of Health is proposing to issue a permit to the shrimp farm on the West side that will allow them to pollute the ocean where their wastewater now drains and will continue to drain. The unconscionable proposition in the permit is that the testing point for the pollution, “zone of mixing”, is one mile off shore. That means, that the testing for pollutants harmful to humans and lethal to marine life will only be assessed after they travel one mile out to see. There will be no way to know how bad the water will be where people swim.

By definition, having the “zone of mixing” as the place for the water quality testing will relieve the shrimp farm from testing at the point of discharge where their runoff (5 million – 20 million gallons of wastewater per day) enters Kinikini Ditch. Under the proposed permit, not only are they relieved from testing at the point of discharge but there will be no way to control the contamination that enters the ditch, the beach and near shore waters.

The shrimp farm, as TGI has reported, has had problems with odor and muddy drainage causing the death of white juvenile ulua, `o`opu and `opai who rely on the ditch for their migratory pattern of reproduction, as well as the death of other marine life. In 2016 there were hundreds if not thousands of dead marine life found on the beach where the ditch drains. Any permit to pollute must, at a minimum, require testing the wastewater “at the point of discharge” (where the shrimp wastewater enters the ditch) not at the “zone of mixing”/one mile off shore. We need as many members of the public to make this simple and obvious point. There is no question that it doesn’t make sense to require the polluters to meet a standard that is set for waters one mile off shore. By than the dilution of the contaminates is huge and the beach goers and surfers will have all been exposed to unknown and uncontrolled pollution.

Please comment no later than midnight Friday October 29, 2021. In your comment we urge you to request a public hearing for the permit application. Please send your comment to [email protected]. Federal and State laws provide for a public hearing, if requested, particularly if the community expresses significant concerns.

In Hawaii, the State Department of Health administers the Federal Environmental Protection Act. Any industry whose wastewater has the potential for polluting the ocean, its near shore waters, beaches, etc., must obtain an NPDES permit (Nation Pollution Discharge Elimination System permit). Clearly the permit which DOH proposes to issue to the owners, Sunrise Capital, Inc., of the shrimp farm on the Kekaha coast of Kauai does not even come close to meeting State law which emphatically requires the protection of our beaches and ocean:

“The Pacific Ocean surrounding Kinikini Ditch, is classified by the DOH as a Class A, Wet Open Coastal Waters under HAR §11-54-6(b). It is the objective of Class A waters that their use for recreational purposes and aesthetic enjoyment be protected. Any other use shall be permitted as long as it is compatible with the protection and propagation of fish, shellfish, and wildlife, and with recreation in and on these waters.”

Act now, demand the public hearing and demand that this permit not be issued when it is so clear that testing should done at the point of discharge not at the “zone of mixing”, one mile off shore.

Please share this email and forward it to your family and friends. If the State is going to allow near shore water pollution on the West side of Kauai, what will stop them from permitting muddy discharge and pollutants into our ocean and onto other beaches. The West side deserves the same protection and preservation as the rest of the island and State.

Mahalo nui loa,

Posted 9/30/2021:

Save Koloa. In our last FOM email we shared our support and efforts to help Save Koloa, a community group, dedicated to preserve what remains of Koloa’s historic field system that supported the agriculturally based Hawaiian community that occupied the area between Poipu Rd and the Waikomo Stream up to the Koloa Mill between 1350 and 1880. Sweet potatoes, taro and fruit were cultivated using a complex water diversion system, remnants of which still remain along with the Hapa Trail. A drive along Kiahuna Golf Village Road allows one to enjoy many of the ancient features of this once thriving Hawaiian community. Save Koloa and FOM are dedicated to preserving as many of the historic and archaeologic features that are still present. We also join Save Koloa in protecting the endangered species known to habitat the area from the obvious dangers and harm that will be inflicted by development, runoff, drainage problems, increased traffic and other nuisances certain to occur if Gary Pinkston’s 282 unit development is built.

We are pleased to share and grateful for an environmental letter from a Bay Area law corporation, Soluri Meserve, copy attached, requesting that US Fish and Wildlife Service assure the protection of the Kauai cave wolf spider & Kauai cave amphipod found only in Koloa, Kauai.

smile.amazon.com

Without the continued support from our community, we would hard pressed to continue our efforts to protect Koloa and the South Shore. As we approach the holidays, please remember FOM when shopping on Amazon. When ordering from Amazon, please order from smile.amazon.com. FOM is one of the listed charities you can designate to receive a percentage of you spend on your order. It adds nothing to the cost of the product, but Amazon donates to group of 501(c)(3) charities and FOM is fortunate to be one of them.

Mahalo nui loa,

Posted 9/13/2021:

Thumbs Up From The Supreme Court. In our last hui email we shared that Earthjustice had filed an application to join in our arguments to the Supreme Court in our water case involving addition of an 18 inch main without proper review which involved diverting 30 plus million gallons a day from the east Wailua watershed without stream diversion permits or any environmental assessment. It only took the Supreme Court 24 hours from the filling of the Earthjustice application and brief to grant their application. The brief filed by Earthjustice on behalf of Earthjustice and the Sierra Club has been accepted by the Supreme Court and is now part of our water case.

Our next challenge, and our latest effort to protect and preserve Koloa and Poipu is described in the following that was emailed to County officials today.

Aloha Chair and members of the Kauai County Planning Commission and Subdivision Committee,

Please accept the following amended additional public comment and petition for your assistance, for help from the County Planning Department and all County officials involved. Koloa is a special place and we need your help to preserve this community. In the following, there is some additional information, the links are easier to access and please forgive the frustration expressed in my initial email. Having been an attorney, it was particularly troubling that the attorney who now represents Gary Pinkston and who negotiated the fee he will pay the County in lieu of building any workforce housing is the same attorney who, while working as a County attorney for Kauai, signed a third party agreement with former developer/owners regarding the same parcel that Mr. Pinkston now seeks to develop adjacent to Kiahuna Golf Village.

RE: Application No. 8-2021-7 – YELLOW HALE. LLC. – TMK 2-8-014:32 – Agenda item I 1c from August 10, 2021

Please accept the following additional public comment/concerns filed on behalf of the Friends of Maha`ulepu, most of whom live in the Koloa/Poipu south shore community of Kauai. The following information is submitted in strong opposition to any further Commission or County action on the subdivision application submitted by Gary Pinkston, owner of Yellow Hale LLC who has already begun marketing lots in the proposed subdivision area under Ka Ua Noe O Koloa, Meridian Pacific, Ltd and Kauai Vacations Now LLC.

Gary Pinkston’s plan to merge and subdivide, per application No. 8-2021-7, for the development of TMK 2-8-014:32 in Koloa should not be considered until he has properly applied with the State Land Use Commission for the rezoning of that property from Ag to Urban. When the LUC Decision and Order (D&O) was entered for the adjacent Kiahuna Golf Village development, that D&O did not include either of Gary Pinkston recently acquired parcels TMK 2-8-014:32 or TMK 2-8-014:41. The State has never granted a district boundary amendment for TMK 2-8-014:32 or TMK 2-8-014:41. The final EIS offered in support of the application for the dba of Kiahuna Golf Village identifies the TMK parcels which were the subject of the FEIS. All TMK parcels which were included in the FEIS are listed on pdf page 21 of the FEIS. The LUC D&O of July 12, 1977 identifies the specific TMKs included. As the D&O reflects in the text below, the subject parcel of Application No. 8-2021-7 is not listed in the D&O or the FEIS as the following text from the D&O confirms:

“2. The subject parcel is situated at Poipu,
Kauai, Hawaii, and contains an area of 457.54 acres.
Petitioner’s Exhibit “A” is a true and correct metes and
bounds description of the outside perimeters of the subject
area. The subject area is more particularly identified by
the following Kauai Tax Map Keys:

(a) 2-8-12-01, and 2-8-14-01, 05, 06 and 08,
owned by the A. F. Knudsen Trust and the Eric A. Knudsen
Trust;

(b) 2-8-12-09, 2-8-13-2 and 05, 2-8-14-07,
and 2-8-15-77, owned by Grove Farm Company, Inc.;

(c) 2-6-04-15, owned by McBryde Sugar
Company, Ltd.; and

(d) 2-8-13-04, owned by the Roman Catholic
Church.”
D&O – pdf page 11-12

Consequently, the application before you seeks to subdivide and proposes urban development of State Ag land which has never been the subject of a dba or an EIS. In addition, the application submitted for your approval is inaccurate in the stated acreage. The applicant purposes to consolidate Lot 88 (TMK 2-8-014:32) and Lot B (TMK 2-8-014:41) and than subdivide that into 4 parcels. The applicant claims that the area involved is 27.885 acres but fails to include TMK 2-8-014:41 in his application. According to County of Kauai Tax Map Key records, TMK 2-8-014:32 is 25.39 acres not 27.885 as stated in subdivision application no. 8-2021-7. If the applicant had properly included and identified Lot B in the application, TMK 2-8-014:41, the total acreage in his application would be correct. As subdivision Application No. 8-2021-7 stands, not only does it propose to create an urban development on State Ag land but it is purposing to consolidate Lot 88 and Lot B without identifying that lot B is TMK 2-8-014:41.

Before the County takes any further action on either of these TMK parcels, they must undergo a State Land Use District Boundary Amendment (dba) and they must be the subject of an environmental impact study (EIS), particularly because of the archaeologic features in the area dating back as far as 1350s, the rich traditional and cultural practices, known lava tube and cave formations and surrounding designated habitat for several endangered species endemic to Koloa. Please see the 22 min video of the Koloa field system in an archaeologic symposium given by Hal Hammett last year. Mr. Hammett’s presentation details the rich history and archaeologic features throughout the Koloa field system on Knudsen Trust land which was developed into Kiahuna Golf Village. In the application before you, the parcel(s) are not only absent from the FEIS and every LUC Decision and Order for the Kiahuna Golf Village and they are not the subject of the survey Mr. Hammett describes in his 2020 symposium.

Another irregularity that mandates no further action be taken: when Application No. 8-2021-7 was heard by the subdivision committee August 10, 2021, a supporting document from the Housing Agency signed by Director Adam Roversi stated that Mr. Pinkston’s “Yellow Hale LLC satisfied its workforce housing requirements by entering into a workforce housing agreement with the Housing Agency. Under this agreement Yellow Hale LLC agrees to pay various in-lieu fees totaling approximately $5 million.” That statement was not accurate. Mr. Roversi’s agreement to accept payment in-lieu of constructing any workforce housing, was not included in the agenda packet August 10. The actual agreement, obtained through a recent UIPA/FOIA to the Housing Agency, reveals that Mr. Pinkston will pay, “the sum of $1,113,900.00 which shall be due within five (5) days after closing on the Property…” That sum was determined by the requirement that Mr. Pinkston pay $3950/unit (282 x $3950 = $1,113,900.00). In addition, the County will receive $10,000 at the close of each escrow (282 x $10,000 = $2,820,000.00). The sums of $1,113,900.00 + $2,820,000.00 which barely exceeds $4,000,000.00. See actual agreement. Those additional fees will trickle in to the County assuming Mr. Pinkston is ever allowed to develop these lots, making it very difficult for any workforce housing to be built by the County and putting the County in a position of a vested interest in the development of these lots. Under our current housing policy the type of development proposed is supposed to be 20% workforce housing which for the development Mr. Pinkston seeks to build would otherwise yield 56 homes (20% of 282). The in-lieu of agreement Mr. Pinkston signed will not come close to constructing 56 homes anywhere on Kauai.

Another troubling aspect of Mr. Pinkston’s application involves the clear conflict of interest between his attorney who negotiated his in-lieu of payment for workforce housing, Laurel Loo, Esq. Laurel Loo was the County’s Attorney who signed an earlier County Approval for the development of the same TMK 2-8-014:32 in 2003. At the time she obviously represented the County and now represents Gary Pinkston in regard to the same parcel, a clear conflict of interest.

In a recent interview with Hawaii Business Magazine, Mr. Pinkston revealed plans that will dramatically change Koloa if allowed. Not only is the County purposing to relieve him of any requirement to construct workforce housing for Application No. 8-2021-7, but Mr. Pinkston stated that he plans to build 15 houses a year in Kukui`ula development for sale well in excess of $1 million without constructing workforce housing and 100 condominiums in Koloa without any workforce housing as well. He has already purchased the land in Koloa in the Koloa town special planning area exempting him from any workforce housing. Koloa residents who are part of the South Shore workforce live in the Koloa Apartments on the land he recently purchased. Some of them have already received notice that they will need to find other housing at the end of their current rental agreement. The Koloa Apartments, built in the 60’s, are affordable. When Mr. Pinkston tears them down and builds his 100 condominiums, per his recent interview, not only will he be exempt from any workforce housing requirement, the new units will likely be unaffordable to Kauai’s workforce.

Before you proceed further with any application from Gary Pinkston, it may be important to be aware that he and his wife have pleaded guilty to federal income tax evasion. The IRS filed the action against the Pinkstons for fraudulently transferring the value of land into the structures on the land thereby sheltering his income with an unlawful increase in depreciation. It is illegal to depreciate the value of land.

On behalf of our members, the endangered species and the cultural and archaeologic resources that will be negatively impacted please take no further action on the parcel or parcels which are the subject of Application No. 8-2021-7. If there are any questions or problems accessing the information linked, please feel free to call. We look forward to your serious consideration and attention to our concerns. Koloa and its rich heritage are very special and deserving of preservation.

Mahalo nui loa,

Posted 8/12/2021:

The Good, The Bad and The Ugly. In case you wondered if we are on the right side of the water issue, we received more support for our case. Not only did the Hawaii State Supreme Court step in and Order our case transferred from the Intermediate Court of Appeals before they could decide the issue, but we just received an excellent brief and Motion filed yesterday with the Hawaii Supreme Court by EarthJustice on behalf of Hui Ho‘opulapula Nā Wai o Puna and Sierra Club in support of our appeal. Such good news to have strong legal environmental support for our water case. Please see their recent filings. We’ll let you know when we hear more. Keep a good thought.

In our last email, we asked for comments and thanks to many of you who did. Unfortunately, as one of the commenters to the following TGI article on the Planning Commission meetings noted, the County has once again shirked their duty and done nothing to further real workforce housing. See the TGI article and great comments that were made. It’s clear the public understands what’s really going on. We, the voters, need to take action and rid our government of officials who keep selling out their constituents. We’re not done yet. Stay tuned for more.

www.thegardenisland.com/2021/08/11/hawaii-news/planning-commission-approves-subdivision-of-kauanoe-o-koloa/

Mahalo nui loa,

Posted 8/5/2021: Sweetheart Deal From the County. No rest for the weary. On June 8, 2021 our Housing Director gave a sweetheart deal to the developer, agreeing to the construction of 282 condos with no requirement for the development of workforce housing, on just 27 acres of undeveloped land, the remaining area of land adjacent to the Kiahuna Golf Village. The condo project, if ultimately permitted, will add a dense collection of condominiums to an already crowded and desirable VDA just mauka of Pili Mai.

There are a host of infrastructure issues, increased wastewater to a challenged South Shore wastewater treatment plant that has odor problems, spills and in need of significant upgrades and repair, traffic and evacuation issues with our limited exit roads, drainage problems that threaten the protected Hawaiian Honu, Monk Seal our beaches and reef, none of which seem to be of concern to our County. More importantly, there are several conditions that were imposed by the State Land Use Commission when this land went from ag to urban that are not yet satisfied.

The known Hawaii burials on the parcel, traditional and cultural practices and the designated and protected habitat of the endemic Koloa spiders are also being ignored. So what does our County do? The Planning Department doesn’t call US Fish and Wildlife, doesn’t get a comment from the State Historic Preservation Division, doesn’t care that there is a LUC requirement that there be a survey and protection of the endangered species before there can be any development but rather agrees to accept a mere $5 million from the billionaire developer Gary Pinkston in lieu of the required 20% of development for workforce housing.

Really, $5 million? Clearly, the developer’s gross sales on the 282 units will average at least a half million per unit so how does a $5 million dollar payment meet or satisfy the 20% requirement of housing for our workforce/Kauai residents? Exactly how much of our housing shortage will this $5 million address? Please help, your comments are needed to be filed with the Planning Commission, [email protected], no later than 4 pm Sunday, hearing is 8:30 am Tuesday 8/10. Points to consider for comment below:

Suggested Comment

To: The Subdivision Committee of The Kauai Planning Commission

Re: Agenda Item I-1c, Subdivision application: S-2021-7

I OPPOSE the Consolidation and planned Subdivision of TMK (4) 2-8-014:032 scheduled for hearing by the Subdivision Committee of the Kauai County Planning Commission at 8:30 am, 8/10/2021.

TMK (4) 2-8-014:032 is home to endangered species, including the blind cave spider, found nowhere else in the world. Portions of the TMK have been designated by the Department of the Interior as protected habitat for the endangered species. It is also a recognized Hawaiian burial site and replete with traditional and culturally sensitive historic practices.

This parcel has been listed by the US Fish and Wildlife Service as ‘Critical Habitat’ and the last remaining ecosystem on the planet for at least 2 Endangered species – the Endangered Kauai Cave Wolf Spider (Adelocosa Anops) and the Endangered Kauai Cave Amphipod (Spelaeorchestia Koloana). These creatures exist only in Koloa – the lava tubes and areas running under and adjacent to this property (TMK (4) 2-814:32).

The agenda item on the Planning Commission lists the proposed activity – the building of 280 condominiums.

In sum – OPPOSE any activities on this property including: drilling, grubbing, grading, the administration of poison and other activities that would lead to the decimation of this ecosystem and listed Endangered Species. See also Land Use Commission requirements that have yet to be satisfied:

https://luc.hawaii.gov/wp-content/uploads/2014/01/A76-418-OP-Response-to-Motion-4-4-14-FINAL.pdf

https://luc.hawaii.gov/wp-content/uploads/2014/03/A76-418_Moana-Corporation_DO_7-11-1977.pdf

https://luc.hawaii.gov/wp-content/uploads/2014/03/A76-418_Moana-Corporation_Bill-of-Particulars_5-16-1996.pdf

The Land Use Commission Docket contains multiple applications to modify the 1977 District Boundary Amendment requirements. In 1997 the LUC added conditions 10-22, see links that follow. No County action should be taken on TMK (4) 2-8-014:032 until the LUC conditions have been met, particularly those addressing traditional and cultural practices and the Endangered Species Act.

Mahalo,
(signature and phone number)

To hear and join the meeting for in person comment:
Microsoft Teams Audio: + 1 469-848-0234, Conference ID: 747 174 28#

Mahalo nui loa,

Posted 7/27/2021:

Mid Summer News. Hopefully you are having a nice summer and enjoying our lovely trades and cooler than normal climes. Some fun news, FOM was contacted by a national organization letting us know that we are being added to their directory of successful environmental justice groups. We’ll share more soon.

As you may recall, the Hawaii Supreme Court issued an Order interrupting the normal processing of our water appeal, directing the Intermediate Court of Appeals (ICA) to stop work on our water case and transfer it directly to the Supreme Court. We have received questions from some of our members asking about our water case. The following link to a recent interview may help:

Larry Graff, PAL Kaua’i Executive Director, interviews Bridget Hammerquist
https://www.youtube.com/watch?v=Yi5_cHvYITc

We recently reached out to our members about the call for comment on the County’s Draft Integrated Solid Waste Management Plan (ISWMP). The comment we filed on behalf of all members follows. If you also filed a comment, we would appreciate your forwarding a copy for our records.

——– Forwarded Message ——–
Subject: Draft ISWMP Comment
Date: Mon, 19 Jul 2021 15:50:22 -1000
From: Bridget Hammerquist <[email protected]>
Reply-To: [email protected]
To: [email protected]

Aloha Solid Waste Management Division,

Please accept this comment to the Draft Integrated Solid Waste Management Plan (ISWMP) on behalf of more than 1000 members in Friends of Maha`ulepu and Kia`i Wai `o Wai`ale`ale, committed to the improvement and preservation of a clean and healthy environment for the people of Kauai now and for the future.

There is noticeable and distinct deficiency in the Public Works section of the Kauai.gov website that applies to all of its divisions including Solid Waste. There is no transparency as to how Solid Waste is managed, its organizational structure and positions of responsibility are not identified. Many of the positions in Solid Waste, including the Chief Engineer, have been unfilled and the Draft ISWMP lacks any information as to the organizational structure of the Solid Waste Division of Public Works. At a minimum, the management position responsible to implement the ISWMP should be identified in the plan. Absent this information, there is no accountability and the taxpayers are left without knowledge of how their tax dollars are being managed or any assurance that the ISWMP plan will be implemented.

As currently drafted, the ISWMP raises serious doubt of any intent to effectively manage the island’s Solid Waste, particularly in view of the complete failure to implement and accomplish most of the clear goals and objectives identified in the 2011 ISWMP, adopted by our County Council:

“Important program and policy changes have been implemented
since the adoption of the last Plan. Unfortunately, funding
was an issue and several of the recommended actions were not
implemented, including a centralized compost facility, a
material recovery facility (MRF), curbside green waste and
recycling, a waste-to-energy (WTE) program, HHW program
expansion, and market development grants.” Draft ISWMP pdf page 11

Noticeably, the 2011 plan was more specific as to its goals, objectives and implementation timeline. The Draft ISWMP is less specific and may fail to comply with its statutory mandate because of its vagaries and statements that planned objectives are contingent on funding. As currently drafted, it is arguably not a plan but rather a statement of unfinished objectives without any concrete timeline to measure its success or failure. Rather than conduct another Waste to Energy study, when at least 3 independent reviews have concluded the Kauai waste stream isn’t sufficient to support a Waste to Energy operation, the key objective and allocation of all available funds should be directed to construction of the MRF and curbside recycling. This would achieve the greatest waste diversion impact. At present, the MRF has been approved for construction and operation at KRC. While there was a law passed requiring a one half mile distance between a landfill and a school, hospital or residence, there is only one residence within a 1/2 mile of KRC and it is old and abandoned. The MRF is not a landfill, will have a roof and has been fully vetted for its current planed location.

In response to a recent UIPA, we were told that the MRF may need to be re-sited, not likely because of the old abandoned home but because of a desire to add two relatively small operations to the KRC. Unfortunately, the response raises significant concern when it suggests that the KRC site functionality will be reduced if the MRF was added even though it admits that the HI5 redemption would be preserved when the MRF was added. Adding the MRF and retaining the HI5 redemption program will obviously increase the functionality of the KRC. Re-siting the smaller operations will not require near the expense or time of re-siting the MRF, clearly supporting the need for a trained waste management engineer to be onboard with our County.

“The County currently uses this facility to operate a HI5 redemption center, accept household batteries and florescent bulbs for recycling, store and distribute backyard composting bins, store and distribute HI5 bins and HI5 event loaner bins, store supplies for Refuse Transfer Stations, provide workspaces for three County positions (two HI5 Specialists and our Solid Waste Programs Manager), and operate a successful Reuse program that assists thrift stores throughout the County. Finally, we plan to start a Household Hazardous Waste Drop and Swap at the KRC that would be much more accessible than semi-annual events. If we were to use the KRC for a MRF, we would lose most of the functionality of the site and would probably only retain the HI5 redemption center. Hence, we would like to explore other options for a MRF site.” 7/7/21 Solid Waste UIPA response

The UIPA response also mentioned the need to re-site the MRF because of proximity to the airport. That explored and addressed in the approved EA and is a non issue, because, again, the MRF is not a landfill. Its operation will be in a structure with a roof and is not reported as an operation likely to interfere with the safe operation of our airport. If re-siting of the MRF is related to a plan to expand the airport, there is little question that the public is feeling the impact from the return of tourism and the obvious infrastructure limitations of the island making any effort to bring in more visitors untenable.

We look forward to your anticipated serious consideration and integration of our ISWMP comments.

Mahalo nui loa,

Posted 7/13/2021:

Airport Expansion?? More Tourists on Kauai?? Kauai County is undergoing its once every 10 year mandatory development of an integrated solid waste management plan (ISWMP). A draft plan has been released for public comment, see attached, and our comments must be filed no later than 4 pm July 19, 2021, [email protected].

After review of the draft proposal, the clear weight of public comment offered during the virtual meeting June 17, 2021, was frustration and disappointment that the County has yet to implement most of the plan for reducing and diverting solid waste that has caused our landfill to exceed its permitted capacity. One of the principle waste diversion operations, the Material Recovery Facility (MRF) with Curbside Recycling, approved since 2011 with and approved and accepted environmental assessment for its location and operation remains unfunded and undone. As of 2011, 10 years ago, the MRF was to be built fronting the Lihue transfer station, part of the Kauai Resource Center (KRC). When Waste Management staff was asked why the County is considering a forth waste to energy study with our tax payer dollars after each of the first three studies independently concluded that our quantity of waste produced was insufficient to sustain a waste to energy program, we were told that there was an issue with the proposed and approved MRF location. We asked what the issue was and we were told, proximity to the airport. If proximity to the airport was not a problem when the environmental assessment was completed and approved, what has changed? Is there a plan afoot to expand the airport because our existing runways and jetways are at capacity? Why else would they want to relocate MRF, requiring another extensive and time consuming environmental review?

We tried to find an answer to these questions and served Solid Waste Management with a Freedom of Information request. Here is the County’s Waste Management response. No where in the response do they offer why the airport is an issue for the approved MRF location. Also see below my exchange with the County Solid Waste Program Coordinator in which she admits that the only current problem with the MRF site is a single abandoned home within 1/2 mile. The coordinator admits however because the residence is abandoned, the new DOH law, requiring at least a 1/2 mile distance between a landfill and a residence, school or hospital, passed in 2020, may not even be in issue. So why is there no plan to build the MRF as approved so curbside recycling can finally become a reality on Kauai?

Please take the time to let the County know how you feel about this plan being kicked further down the road. On pdf page 163 of the attached ISWMP you can find a detailed description of the majority of the Solid Waste Management objectives intended for completion by 2020 that remain as yet undone. The following is a brief paragraph from the current draft that summarizes what should have been accomplished but for the lack of political will and funding. Please lend your voices to insist the County build and operate what’s already been planed and approved, the MRF with curbside recycling rather than spend any more taxpayer dollars lining the pockets of consultants who conduct unnecessary studies. If Oahu, with its population, more than 10 fold that of Kauai, cannot produce enough waste for a successful waste to energy operation, a news item release last summer, we should be confident that our little island is certainly not going to have a sufficient waste stream to have any different result if a forth study is conducted. Rather, we need to insist on the MRF to reduce our landfill.

“Key Components of the Future System

The County has several existing programs and policies that contribute to a relatively stable diversion rate of 43 percent (based on the baseline FY 2019 diversion rate). Many of these programs have been in place for over a decade, while some were programs and policies that were implemented as a result of the last Plan, which was adopted in 2010. Important program and policy changes have been implemented since the adoption of the last Plan. Unfortunately, funding was an issue and several of the recommended actions were not implemented, including a centralized compost facility, a material recovery facility (MRF), curbside green waste and recycling, a waste-to-energy (WTE) program, HHW program expansion, and market development grants.”

Mahalo nui loa,

Posted 7/6/2021: Supreme Court Order for FOM. Great news! Favorable Supreme Court Order for FOM issued today. FOM’s water hui, Kia`i Wai `o Wai`ale`ale, filed a lawsuit in 2018 objecting to Kauai Department of Water’s (KDOW) self approved environmental assessment (EA) for the addition of nearly 2 miles of a new 18 inch main that would be added to our current Puhi, Lihue, Hanamaulu, Kapaa water plan without any assessment of the streams in the East Wailua watershed, the source of the water to be carried by the new main. When the surface water treatment plant was built by KDOW and Grove Farm (2/3 cost by KDOW, 1/3 by Grove Farm) in 2004, no environmental assessment was done at all, a complete violation of Federal and State laws.

When KDOW proposed the new main and again failed to consider the environmental impact to the source waters, our Wailua watershed streams, Kia`i Wai timely objected and filed its lawsuit. The Circuit Court Dismissed our case prompting us to appeal to the Intermediate Court of Appeals (ICA) as we felt the Dismissal was a clear error. When our challenge of the inadequate EA by KDOW was Dismissed, we had the right to appeal to the ICA. After all the briefs were filed with the ICA we applied to the Supreme Court requesting they transfer the case and take jurisdiction over this very important environmental issue. Review by the State Supreme Court, however, in Civil cases, is only granted when the High Court agrees to hear the case. Generally, that happens after the ICA has rendered their decision. In our case, we filed an application requesting the High Court intervene now and relieve the ICA of any jurisdiction over the case because this matter is worthy of the High Court’s determination. The Hawaii State Supreme Court issued a unanimous Order today granting the transfer.

Their Order prevents any further action by the ICA and validates FOM’s position that this environmental issue is of sufficient importance to warrant transfer to the State’s High Court now. A great win for our environment, water and Kauai. For more info see attached press release and pertinent court documents. Fortunately the unanimous decision by our High Court today confirms they were unpersuaded by the unfounded allegations in KDOW’s opposition to the transfer which KDOW failed to support with any references to the record on appeal.

Does our need to protect the environment stop? Probably not anytime soon. Our North Shore is now threatened by billionaire corporation, Starwood Resorts, is considering a plan to add 50 glamping units (glamorous clamping) on a 9 hole wooded golf course that is zoned Open Space. The County allowed the Open Space zoned land to be used for golf and ancillary golfing activities, finding that use compatible with the concept of Open Space and promoting the enjoyment of Open Space. When was the last time you heard of anyone being allowed to spend the night on a golf course? Starwood’s proposed plan to add 50 glamping units involves pouring concrete footings, concrete pads with fixed walls similar to a yurt that allegedly will have kitchenettes, bathroom facilities and a locking sliding glass door. Not only will the glamping units cover over an important golf course ground that absorbs runoff from the neighboring homes and streets it will add to the wastewater treatment and water consumption needs and is hard pressed to claim an ancillary activity to golf.

So what can you do? Draft Bill 2822 offered by Mason Chock and Luke Evslin will be considered by the Planning Commission Tuesday July 13, 2021. The Bill precludes/prevents glamping/developed of commercial campsites on land that is zoned “Open Space”. Help us preserve our Open Space. Unfettered glamping on any part of our island is just not sustainable.

Please write to our Planning Commission not later than July 9th, 2021, [email protected]. In the subject line of your email it would help if you enter “Strongly Support Bill 2822”. In your email please describe any concerns you have about the strain on infrastructure, the drainage issues, eliminating open space that is currently absorbing water which, when covered, may well contribute to ground softening and more land slides on the North Shore. When we speak out, we limit corporate abuse and protect our fragile island ecosystem which must be protected especially on Open zoned land.

Open Space is vitally important to every resident of Kauai. We must protect Open Space for the quality of life on our island, both now and for generations to come. Voice your support of Bill 2822 to the Planning Commission to preserve our environment, the beauty of the island, and to reduce the negative impacts of unrestricted tourism.

Dial into: Microsoft Teams Audio: +1-469-848-0234, Conference ID: 889 153 263# 9am 7/13 to hear testimony and comments from all interested persons regarding Bill 2822 which is item 4 on the Planning Commission agenda 7/13.

Mahalo nui loa,

Posted 6/15/2021: Mountains of Waste and Where to Put It? Don’t put your feet up just yet. Yes, we succeeded in helping to stop the Hokua Place planned development of 769 units on the hill behind Kapaa Middle School, an impending traffic nightmare with 10 years of heavy construction and obvious road congestion right above the busiest traffic corridor on island. A good victory. The following link contains the final 10 minutes of hearing ending the Hokua Place bid to change 97 acres of ag land to urban. For lack of water, wastewater and traffic capacity, that development is not going to happen. The LUC chair thanked us all for bringing detail and data to their attention as we supported the intervenor, Liko Martin, the sole member of our community who stood up and said, Enough is Enough!

https://drive.google.com/file/d/15Zxgl52SD9_Bfpz7mCe2Kb-iHLRVL6yW/view?usp=sharing

Community Input/Action Needed!

Now, another big problem threatens our clean water and the environment. Kauai is mandated to adopt an Integrated Solid Waste Management Plan every 10 years. The last plan, approved in 2011, set out specific goals and objectives which the current proposed plan admits were never achieved due to a lack of funding, a problem our Mayor and County Council need to address. Our waste program plan needs public input. When I spoke today with the Solid Waste Program Coordinator, she agreed that it would be helpful if as many as possible weigh in by registering for the meeting this Thursday, via link that follows or submit email, on or before July 19, 2021 at the address below. If you’re willing to help, you can find support for all of the talking points that follow on pdf page 163, section 13 of the proposed waste management plan.

https://www.kauai.gov/Portals/0/PW_SolidWaste/ISWMP_DOCUMENTS/KauaiCo_ISWMP_Update_Draft4.pdf

Public Hearing on
Integrated Solid Waste Management Plan Update
Online via Microsoft Teams
June 17, 2021 – 3:30 p.m. to 6:30 p.m.

Click here to register per program manager, later registration will be accepted, (see Notice)

Written comments may also be submitted by email to [email protected] at any time before or after the Public Hearing until close of business Monday, July 19, 2021.

This process and our opportunity to have input only happens every 10 years and here is why we need to comment:

• When we reviewed section 13, based on the content and table within, it was obvious that the action plan of 2011 never was fully implemented, and the documented reason is lack of funding. Absent interest and strong objection from the public, our County government will continue to defer much needed funding because handling our trash will not be a priority until enough people insist on it!
• If we are going to have visitors and are going to generate trash on an island in the pacific we need a comprehensive plan for waste disposal or waste diversion that is adequately funded to keep our water and environment clean.
• The County’s biggest deterrent to effective waste management is the lack of staff to manage solid waste. The solid waste engineer position was eliminated by the County. Only in the last month did the County move a hydrolic engineer from the Water Department to manage the Solid Waste Division of Public Works. The staffing under him remain woefully inadequate with a Program Coordinator trained in psychology and 2 State paid positions that manage recycling/HI5.
• Without qualified trained personnel to manage a solid waste plan, there is no potential for a successful solid waste program as evident by the County’s failure to implement the 2011 plan, a fact openly admitted to in the current plan.
• The current plan open to public comment, makes more than one reference to the fact that many of the necessary steps to waste management of the waste generated on Kauai are not met because of the lack of funding. Please help us tell them that managing waste is more important than completing a bike path or funding a public golf course, etc..
• Without qualified personnel to run the Solid Waste Division of Public Works, our waste management has reached a crisis level. Our current landfill has less than 7 years before the EPA issues a cease and desist while those experienced in the procedures necessary to identify and secure an alternative site have already determined it will take a minimum of 10 years, if not more, to secure a new approved site.
• Until the County develops the political will to properly staff the Solid Waste Division of Public Works, and diverts sufficient funding from its $240 million County budget and at least a minimum restore the three engineer/management positions, we will suffer the consequences of inundation of untreated, unmanaged waste. Instead, isn’t it time to take care of:
  1. Completing the Materials Recycling Facility (MRF) that already has an approved site and approved environmental review and is ready for engineering plans and construction. People are clamoring for curbside recycling, which can’t be handled without a MRF.
  2. Food waste makes up 10% of the landfill, emitting the greatest percentage of greenhouse gases from the landfill. If properly handled, it could be used to provide a rich compost.
  3. Construction waste is currently not sorted and comprises a mix of treated lumber and chemical laden materials that are toxic. While some feel these materials can be eliminated in a waste to energy burn operation, such a belief ignores the air pollution from dioxins and carbon dioxide and vaporization of our fresh water that would result form that process.

Mahalo nui loa,

Posted 5/30/2021: A Real Win For Kauai! As you may have seen, TGI had front page coverage of our victory. Bravo to our legal team, Lance Collins and Bianca Isaki who filed compelling testimonies with strong supportive exhibits weeks prior to the start of the hearing, assuring that our Commissioners were well informed and ready to bear when the questioning began. A hui of volunteers helped gather the evidence our legal team put together.

Yes, it took all of us but we “stopped” Hokua Place. The 769 unit development would have imposed a 10 year period of infrastructure development, construction and finally per the developer, this dense development was expected to add 1900 cars seriously impacting travel through the Kapaa corridor. Instead, we won, and their plan has been withdrawn.

After hearings that spanned two months, HoKua Place failed to address impacts to traffic, wastewater, drinking water, solid waste disposal, nearshore waters, streams, wetlands and Hawaiian cultural practices, much of which they admitted to themselves in their “Petition to Withdraw”:

“9. Petitioner wishes to withdraw its Amended Petition to address the concerns expressed by Commissioner Okuda, Commissioner Giovanni, Commissioner Chang, other Commissioners, and the public. Addressing these concerns requires significant attention and time.” Petitioner’s Withdrawal here

Thanks to so many who have already donated. We have spent $15,000 more than the donations received and additional attorney fees and costs are yet to be billed. If you can help, your support will mean so much as we continue in our effort to preserve the environment, our water and our quality of life on Kauai: https://www.gofundme.com/f/stop-hokua-place-kapaa-development

HoKua Place application withdrawn
https://www.thegardenisland.com/2021/05/30/hawaii-news/hokua-place-application-withdrawn/

Denying HoKua Place is a great victory
https://www.thegardenisland.com/2021/05/30/opinion/letters-for-sunday-may-30-2021/

Mahalo nui loa,

Posted 5/24/2021: Another Grab At Water. Good coverage on FOM’s efforts to preserve clean water on Kauai:

https://www.thegardenisland.com/2021/05/23/opinion/voices-water-is-life-but-at-what-cost/
Tune in today for more on KKCR at 4 pm.

Now, another threat to our stream water, a proposal to burn waste to heat water to supply steam turbine energy.

Three County Tax Payer Funded Studies have already concluded that a Waste to Energy facility on Kauai is Not Feasible! The Mayor’s budget, currently before the County Council for approval, has funding of up to $300,000 for yet another Waste to Energy study, looking at the feasibility of burning our trash, creating toxic gasses and toxic ash which will need to be handled by a properly permitted landfill. Whose pockets are being lined? Rather than spending $125 million, the projected cost for a Waste to Energy burn facility, and spending up to $300,000 for yet another study, wouldn’t it make more sense to restore a line item of our current budget that had proposed money for the design engineering of a curbside recycling program via a Materials Recovery Facility (MRF). The MRF has already passed environmental review and its proposed cost of $12 million is one tenth of the cost of a burn facility and nowhere near the environmental impact.

Unfortunately, funding for the curbside recycling has been zeroed out. What are our County officials thinking? How can an island of 70,000, only some of whom are taxpayers, support a $125 million burn operation? Curbside recycling and the sale of the materials recovered makes so much more sense than using millions of gallons of water daily to operate a Waste to Energy plant that burns all its materials and emits harmful gasses in the process. Please read more below and send your comment to the County Council by end of day Tuesday, May 25, 2021.

Email your testimony to [email protected] and copy the mayor at [email protected].  Reference Bill 2819. Send it anytime before midnight on May 25th.

A lot of us would like Kauai to become more sustainable. The good news is we are not alone. According to the Kauai General Plan, becoming a Sustainable Island is Kauai’s Number One Goal.

Curbside Recycling is an essential component of a Sustainable Solid Waste System, but it cannot happen on Kauai without a Materials Recovery Facility (MRF). At a MRF, recyclables (paper, cardboard, glass, plastics and metals) are efficiently cleaned, sorted and baled–transformed from trash into saleable commodities, also known as “feedstock” because they are used for the manufacture of new products.

Curbside Recycling could divert 30% of the throw-aways going into the landfill today. With a MRF, the County will gain an extra year of landfill life every three years.

The Countyʻs current solid waste plan, adopted in 2009 and presently being updated, calls for the building of a MRF by 2011. . . Yes, we are ten years late, distracted by the false god of Waste-to Energy (WTE)! Over the past 10 years the County has done three WTE feasibility studies. All of them have concluded that WTE is not financially feasible on Kauai. This is before accounting for the negative environmental impacts. Ironically, there is presently $300,000 in the current County Budget for another WTE study!

If sustainability is our goal, it is time to get serious and build a MRF which costs $12 million. A new landfill is estimated to cost $80-100 million and a WTE facility, about $125 million. Kauai cannot afford NOT to build a MRF.

A conceptual design and an Environmental Assessment have already been completed for a MRF. A Finding of No Significant Impacts (FONSI) has been issued. The next step is a construction design, which will cost $450,000. This needs to be included in the FY21-22 budget that will be voted on by the County Council on May 26.

If you want to see curbside recycling on Kauai, please let your voice be heard. For more details visit https://zerowastekauai.net/iswmp.html.

If you are able to submit testimony on short notice, mahalo.  If you cannot, donʻt worry–at least you now know more about this important subject. There will be more opportunities in the future.

Thanks for caring. Itʻs the caring and action of our citizens that makes Kauai strong.

Read more on the benefits of curbside recycling:\

https://www.thegardenisland.com/2021/05/23/opinion/voices-bring-back-curbside-recycling/

Email your testimony to [email protected] and copy the mayor at [email protected].  Reference Bill 2819. Send it anytime before midnight on May 25th.

Mahalo nui loa,

Posted 5/21/2021: What Are We Drinking? Who can rely on the quality of water we’re drinking when the County water department would blatantly lie to the public and our courts? What follows is very upsetting and should be known by all. We are on appeal and we intend to seek the strongest rebuke and remedy that our Supreme Court will grant.

Hard to believe, but it wasn’t until the fall of 2017 that our County Council realized their water supply and the water supplied from Puhi to Kapaa was ditch water. I attended the County Council meeting where Chair Mel Rapozo actually said after a report from the Water Department, “you mean we’re drinking ditch water in Wailua and Kapaa?” To which then Chief Engineer, Kirk Saiki, said yes. As you’ll see from the text below, the public was not really in the know about the Waiahi Surface Water Treatment Plant’s (SWTP) processing of ditch water for the public. It was built by the County and Grove Farm in 2003 but there was no public notice and no environmental review in total violation of the State Constitution and State and Federal laws. When tax payer funds are used, as in this case, the Hawaii Environmental Protection Act mandates an assessment of the environment and particularly the stream sources of the diverted ditch water. To date, this has never done.

Rather, in 2018, the Kauai Department of Water (KDOW) published a Draft Environmental Assessment (DEA) for the installation of a lengthy 18″ main that would carry water to Grove Farm’s housing developments from Puhi through Hanamaulu. On review, we noticed that there was no environmental assessment of the water source, the streams in the Wailua watershed. Millions of gallons are taken daily and diverted to the Kapaia Reservoir, but there was no consideration of the impact to the steams being diverted to the reservoir. The County’s position, per their 2018 DEA, was that there was no increase in the capacity of water to be taken from the watershed, relieving them of any need to consider the environmental impacts to the watershed. That was there contention in the 2018 DEA. Our comment objected, noting that adding a new 18″ main would, of course, increase the capacity of the water diverted from the steams. Our comment was due March 12 and the County didn’t wait or even respond to our comment but prepared a Finding of No Significant Impact, dated March 12, 2018. Our only alternative was file a complaint in the Environmental Court. We did that and in June 2020, Judge Watanabe, ruled in favor of the County accepting the declaration of their attorney that the new line would not take more water from the watershed. We had filed a declaration of a hydrologist demonstrating that there would be an increase in the capacity of the system and the waters taken. His declaration was not opposed by any engineer or hydrologist, only the declaration of the County’s attorney. So now we’re on appeal and we just discovered a huge fraud on the Court and the public.

It turns out KDOW had published an earlier DEA for the same 18″ main in 2016. They withdrew it, claiming an error in the address of their consultant, Kadani Engineering. Unfortunately, we believed their stated reason for withdrawal. While working on the appeal, we decided to review the 2016 DEA and were shocked to learn that KDOW openly admitted that the 18″ main was being added to meet the increased capacity need for Grove Farm’s developments. So all their claims about no need to increase capacity or volume of diverted water taken are false. Below you will find text from the 2016 DEA which you can compare against what they published the 2018 DEA for the same project.

“In 2009, Kodani & Associates Engineers, LLC prepared the Līhu’e-Hanama’ulu Master Planned Community Water Master Plan for Grove Farm Company, Inc. (Grove Farm). In part, the Master Plan was prepared for the future development process of Grove Farm property. Phase I of the Master Plan included the proposed development of a 9,000 linear feet (L.F.)of 18-inch waterline along the main Kāpaia Cane Haul Road from Ma’alo Road to Kūhiō Highway (See Exhibit E).

The County of Kaua’i, Department of Water (DOW) Kāpaia Cane Haul Road 18-inch Main proposed project is currently described in the 2015 Proposed Capital Improvement Project (CIP).1 The DOW wishes to increase potable water capacity in the Līhu’e area to satisfy existing and future potable water needs. Grove Farm is the owner of the property on which the main portion of the transmission line is proposed to be constructed and is able to satisfy a portion of the increased capacity needs of the DOW.” (Emphasis Added) See page 8 of KDOW 2016 DEA link below

http://oeqc2.doh.hawaii.gov/EA_EIS_Library/2016-09-08-KA-DEA-Kapaia-Cane-Haul-Road-Main.pdf

http://oeqc2.doh.hawaii.gov/EA_EIS_Library/2016-10-23-KA-Withdrawal-of-DEA-Kapaia-Cane-Haul-Road-Main.pdf

In contrast, the following is from the 2018 DEA published for public comment, claiming no increase in the capacity of the water to be taken.

“2.1 Description and Technical Characteristics

The Department of Water, County of Kauai (“KDOW”) proposes to construct an approximately 9,000 foot long, 18-inch diameter water transmission main (“Relief Line”) beginning at the intersection of `Ehiku Street and Kūhiō Highway, crossing into private property and traveling along the Kapaia Cane Haul Road from Kūhiō Highway toward and ending at Mā`alo Road. The proposed Relief Line will connect to existing KDOW 16-inch diameter water transmission mains on each end.”

“2.2 Purpose and Need

No additional source or storage is required for this project.

The Waiahi SWTP is a major source of potable water for the Līhu`e system. The current capacity of the Waiahi SWTP is 3.0 million gallons per day (MGD) in accordance with various governmental regulations and approvals. The capacity of the Waiahi SWTP will not increase due to the installation of the proposed Relief Line.”

http://oeqc2.doh.hawaii.gov/EA_EIS_Library/2018-03-23-KA-FEA-Kapaia-Cane-Haul-Road-Main.pdf

While on appeal, we also obtained a copy of a critical email from KDOW Engineer Dustin Moises to Mike Dahilig, than County Planning Director. Excerpts from his email, See here, confirm that KDOW has never done the required environmental review and validates our case, now on appeal.

“Finally, I think their statement “No environmental assessment or statement was prepared for Grove Farm SWTP operations and the DEA should include this assessment within its scope.” is the biggest one of this comment. The original treatment plant did not have an EA done and since the very first trigger for HEPA is use of ”county funds”, one could question validity of the existing SWTP development since KDOW paid 2/3 of the cost with GF and will own it. It would have been helpful to have that done then to fall on now but without one that I am aware of, i would say that should be revisited now with pipeline DEA.”

“How do you address the EA not being done a decade ago as related to DHHL comment #2 when DOW funds were used the same way the EA was triggered for this pipeline? SWTP is a private system so we have to separate ourselves from that and diversions but we can’t separate from the 2/3 DOW $. I think this is the biggest issue related to the EA comments. We don’t have anything to stand on from a decade ago to help us now.”

“KAE in drafting it with KDOW should be transparent to the community and disclose anything that could be an issue related to EA whether involves GF, County or KDOW. In doing so, evaluate the 13 administrative criteria for significance and determine CWRM vs KDOW vs others responsibilities during the process. Utilize the OEQC guide for HEPA implementation.” (None of these recommendations were followed by KDOW.)

Our appeal and the remedy we seek is probably years away because of court congestion. Your continued support is much appreciated as we work to protect our environment and require are public agencies to fulfill their constitutional duty to protect one or our most valuable public trust resources, water.

Mahalo nui loa,

Posted 5/19/2021: Over-Development Over? The last two days of hearings before the Land Use Commission (LUC) were not only illuminating, but the second day of testimony ended with potential exciting news for Kapaa and the island. When developer, HG Kauai Joint Venture LLC, rested/ended its presentation Thursday afternoon, a Motion to Dismiss made by Commissioner Gary Okuda and seconded by Kauai Commissioner Dan Giovanni, made it clear that, for at least several Commissioners, the Petitioner/Developer had failed to meet its burden of proof in its bid to the LUC to change 97 acres of Ag to Urban for the development of Hokua Place (HP).

If built, HP would be the largest and densest development on island to be located in the densest part of the island, already overburdened with so much traffic the highway is known as the Kapaa crawl. Putting this dense a development behind the Kapaa Middle School and just mauka of the Kapaa Bypass, would make travel through the Kapaa traffic corridor like going from a bad dream to a total nightmare.

Thankfully, the Commissioners recognized and identified serious deficiencies in the traffic impact, potable water, sewer/wastewater and environmental assessment. Because the pending LUC Motion, if passed, will deny Petitioner’s bid to re-zone 97 acres of historic Ag land, all parties have been given an opportunity to submit written arguments in either support or opposition to the Motion to Dismiss. Our lawyers are hard at work preparing our support for the LUC Motion as well as a Motion to Dismiss on behalf of Interveenor, Liko Martin. All arguments are due May 27, 2021. The Commission will meet next June 10 and we hope to have good news to share soon thereafter.

Needless to say, the LUC decision will be critical to our quality of life on Kauai. It was good to hear our County Attorney bring to the LUC’s attention the fact that one of the four pivotal goals of the 2018 Kauai General Plan Update is to “Keep Kauai Rural”. Bottom line, we deeply appreciate all donations received to fund our opposition to this bad idea. For those who can still help, the link below will help us cover our legal fees and costs which to date are in excess of $25,000. It does look like we will have another success in our efforts to protect and preserve the environment and lifestyle on Kauai.

Link for donation
https://www.gofundme.com/f/stop-hokua-place-kapaa-development

Thursday Press Release

TGI Coverage this Past Sunday
Land Commission may deny Kapa‘a rezoning
https://www.thegardenisland.com/2021/05/16/hawaii-news/land-board-may-deny-kapaa-rezoning/

Links to LUC Hearings Last Week

Topic: State Land Use Commission Hearing
Date: May 13, 2021 08:46 AM Hawaii

https://us02web.zoom.us/rec/share/Eb4Pf7CMlwq_CsS8B5OYAl-vpm_cKUUpwjCTxyURAC3u59ghcRRd47-kkiPZcvbv.IF8adL_osqsFMo8h
Passcode: *8nFQ=QR

Topic: State Land Use Commission Meeting
Date: May 12, 2021 08:43 AM Hawaii

https://us02web.zoom.us/rec/share/Lmsxjt-DykK2Vvsnkyi7VIpBKGt-ZxuKifhN009j0-J6TmTPEZJGd0ylUM6wzek.bLG-YQz71KstkMf_
Passcode: &Q85c2!u

Mahalo nui loa,

Posted 5/7/2021: Bravo Environment Hawaii! Thank you to all who have already financially supported our effort to stop another billionaire from “bringing a bad idea to Kauai.” As you know, FOM was asked by members of the community and Interveenor Liko Martin to help with the effort to stop what would be the largest and most dense development ever built on Kauai, 769 units on less than 96 acres. Not only are there serious infrastructure issues, lack of available water or sewer hookup, which the State requires, but Robert Roche, owner/developer, is purposing this development right adjacent to the busiest traffic corridor on the island. We need your continued financial support as more than $24,000 have been spent on attorney fees and costs thus far. Let’s not make the Kapaa crawl any worse then it already is. Please know that any donation you make is illegible for a tax exemption as we are a 501(c)(3) organization:

Link for donation
https://www.gofundme.com/f/stop-hokua-place-kapaa-development

Recent article by Environment Hawaii confirming the community has reason to oppose this project:
https://www.environment-hawaii.org/?p=13534

Recent Testimony Excerpts

Please see below critical parts of traffic engineer, Randal Okaneku and hydrologic engineer, William Bow’s testimony offer for the developer.

April 15 – Randall Okaneku

2:20:20 – Yee asks Okaneku if he agrees the TIAR will need to be updated at some point… if needed at request of DOT and/or Public Works. Feels it can stand as is.

Bianca (cross)
2:42:00 – Collected midday did not include it…
3:08:00 – When next survey… no date… wait for tourism to return…. 5 years???

LUC

Giovanni
3:05:30 – Update to TIAR – delayed – not for 5 years – not sure – depends – has written scope of work for update – will submit it

Ohigashi
3:21:00 – What is preventing an update to the TIAR – Did not submit additional data… Nothing preventing his update with the 2017 data…

Okuda
3:27:20 – List what can be updated in the TIAR with current data – update baseline conditions – have some 2018 data from region – that and the 2017 data is what he will rely on if he does not do another field study – can do another field study
3:30:00 – Proposal to update TIAR – what was the scope of that proposal.
3:31:39 – why that proposal? Update was result of a comment by an LUC Commissioner. Proposal was made after FEIS…
3:32:30 – Reasons why no updated as of today… needed more field studies – has some data from 2018
3:37:00 – Yuen indicated to Okaneku data was rather old and an update to the TIAR should be prepared. Okaneku presented proposal for update to TIAR. No time frame for update.

Giovanni – followup
3:28:00 – 2017 field investigation took about a week
3:42:00 – You were there at a luck time

Wong
3:44:00 – Visit to Aunty in Kapaa… Traffic is nuts…

Schueur
3:49:24 – Preponderance of evidence
3:50:00 – Do you believe we have a Sufficient evidentiary basis to grant Petition? or are further updates to the TIAR necessary? Point out the answers to the LUC concerns… evades…
3:53:00 – What will be produced if not an update to the study… not in evidence before LUC
3:54:30 – Okuda points out it is the “clear” preponderance of the evidence…

March 25 – Bow

Okuda
4:14:35 – Supplemental EIS
4:18:57 – Part of any discussion to submit Bow’s analysis as a supplemental to EIS? Talked about it but told to far along with EIS that the changes working on not material to EIS by Bill Yuen with Ron Agor, not sure who made the statement.
4:25:49 – Unlikely original engineering plan from EIS would be permitted
4:26:13 – In any event after review of the EIS engineering drainage report you concluded more analysis was needed? Yes
4:26:45 – Honua Engineering report of silent about size of retention basin
4:27:00 – Honua report deficient on location of flow and amount of pre-development drainage. That needed to be quantified to work.
4:27:44 – More analysis was needed to make sure the plan worked
4:31:25 – EIS drainage report from 2011 did not include rainfall/point precipitation information
4:31:50 – Per Bow, Rainfall intensity has increased between 2011 and now
4:33:50 – Hawaii Supreme Court decision: Unite Here Local 5 vs City and County case – if there is a substantial change in data, that is a reason for a supplemental EIS
4:35:00 – December 4, 2020 NRCS soil study second exhibit to Bow’s engineering report of Jan 2021… another post EIS report needed along with rainfall data to add to software generated determination of pre-development drainage which determines size of detention basin (while not discussed here, EIS relied on topography to retain drainage increase from development, Bow’s engineering report actually relied on the addition and installation of manufactured detention basins.)
4:38:01 – Prior to December 20, 2020 the flood boundaries and construction limits had not been determined. In Bow’s 3rd attachment to his engineering report that determination was made.
4:45:20 – Exhibit 27 Hokua Place concept proposed drainage map dated Dec. 2020 Exhibit 34 Hokua Place conceptual subdivision/wetlands map Feb. 2021 (more post EIS reports) – first time developer disclosed map with the wetlands (overlayed HP map with USGS wetlands map)
4:49:03 – Believes based experience the information in report should be included in an EIS
4:50:00 – None of the parties have had a chance to examine exhibit 45 or question Bow on it.

Ohigashi
4:50:45 – Exhibit 45 title subdivision cost summary – what does that include?
4:51:00 – Bill Yuen acknowledges that Mr. Collins has said he wants to ask questions about exhibit 45… exhibit not yet in evidence, so admitted.
4:52:15 – Subdivision cost summary includes everything from clearing, preparing the land, roads, water, sewage, drainage… everything that needs to be done before the vertical construction.
4:55:00 – Bow did not include any offsite improvement cost for wastewater facility – did not know what was needed
4:55:20 – There will be additional offsite improvements not yet included in Bow’s cost estimates

Chang
4:58:00 – At this point there is no real design… just a bubble diagram
4:58:30 – Relied on workforce housing development in Waimea and Koloa for a per acre infrastructure cost to come up with the $83 million dollar estimate. Didn’t have info on roadway sizes, offsite infrastructure improvements or any specifics to rely on so used the experience from the two Kauai workforce housing sites.
4:59:00 – Dawn Chang expresses difficulty as a LUC commissioner if asked to approve a plan that appears speculative wit a lot of unknowns
5:01:30 – Feels confident in the onsite infrastructure estimate but not confident about what the offsite infrastructure costs might be because they haven’t had any discussions with the County on what offsite and mitigation costs might be.

Scheuer
5:05:50 – Establishes that the results of Tom Nance’s study is a shortfall from the actual water need for the development. Takes Bow through the measurements and Bow concludes that yes there is not enough potable water to meet the needs of the proposed development even with Tom Nance’s prediction for the fresh water well gallons per minute. Knows of no other fresh water source.
5:10:45 – per page 6 of Bow’s report which contains average daily potable water demand, the well production predicted fails to meet even average daily let alone maximum and pead demand
5:11:15 – Thinks Tom Nance’s solution will be to drill a bigger will with a larger diameter well casing
5:12:02 – Bow admits that although his report found the well pumping experience sufficient for the developments demand, he now acknowledges that that data proves they will be a little short… akin to a little pregnant.
5:13:39 – Well makai of the UIC line, contrary to State law
5:14:00 – No analysis of capture zone or drainage from detention basins or ag lot use on water source contamination

Giovanni
5:17:00 – When Bow formed estimate on intersection costs and roundabout costs it did not include bicycle or safe crossing
5:21:56 – Lance asks for further cross of Bow because of added new exhibit 45
Right to recall bow later if needed

Yee – Has right to ask to re-cross for only new exhibit (45)

Wait till after we hear from Mr. Nance

Giovanni asks for Mr. Bow Back after Okaneku and Nance because of the overlap between Bow and Nance on water and between Bow and Okaneku on TIAR and cost of roads

Mahalo nui loa,

Posted 4/13/2021: Billionaires Proposing to Build Largest Development Yet on Kauai. As we work to preserve and protect our environment and our natural resources, FOM agreed to join Sierra Club Kauai, Community Coalition Kauai and other community groups opposing the development of 769 homes mauka of the Kapaa bypass and behind the middle school. The plan currently being presented to the Land Use Commission seeks to change 96 acres of Ag land to Urban to facilitate the development Hukua Place, a development that is to add 83 single residences 686 condo units on a hillside with a view of the bay and coastline in front of the old Coco Palms hotel. This dense complex is expected to add at least 1900 vehicles to the Kapaa-Lihue highway corridor. Not only is there no potable water present now but the units are expected to add wastewater in excess of the current capacity of the already overburdened Wailua wastewater treatment plant with the closest hookup being at least a mile from the proposed development site. There are seven years left on Kauai’s ability to dispose of solid waste at the Kekaha landfill. We still do not have an alternate landfill. Now is not the time to further tax our infrastructure.

We have hired lawyers to represent the community to keep the land Ag until Kauai’s infrastructure is able to accommodate such a large development. Princeville, probably the island’s largest development has 750 condo and family units on 9000 acres and is nowhere near as taxing on the environment as these 769 units will be on a mere 96 acres. We need help with legal fees. The hearing is going well thus far us but our legal fees are mounting. We can’t imagine anyone wanting to add 1900 vehicles to Kapaa. This crowded traffic corridor cannot handle this increase. This project threatens to impact us all, anyone traveling to or from the North Shore will be affected. If you have not already made your tax exempt donation for the year, we implore you to consider helping us with this worthy cause by click on the following link where you can read more and donate now to help:

https://www.gofundme.com/f/stop-hokua-place-kapaa-development

Mahalo nui loa,

Posted 3/18/2021: There’s Hope For Wai`ale`ale and Waikoko. Mahalo to all who worked on the effort to restore continuous flow to Lawai Stream. Most noteworthy was the Commission on Resource Management (CWRM) deliberation conclusion that what they did for Lawai Stream is what they need to do for all the streams in the State.

A big mahalo to the Aha Moku Advisory Committee, a committee created by State legislation that encourages and facilitates action by community members for resource preservation. In 2012 our legislature finally recognized the skill and cultural practices of those who preserved and maintained our natural resources for centuries throughout the islands. Aha Moku provides a direct line of communication to the State from anyone concerned about the degradation or harm to one or our natural resources. When the Aha Moku Executive Director, Leimana DaMate, received the complaints of de-watering for several streams on Kauai, including the historically important Wai`ale`ale and Waikoko streams, she took those complaints to the State hydrologist who reached out and began his work with stream studies and community outreach. It took years, but the result is great! Thanks to all our supporters we were able to organize and contribute to a great outcome. See TGI and Hawaii News Now coverage below:

www.thegardenisland.com/2021/03/18/hawaii-news/state-seeks-to-end-lawai-stream-diversion/

https://drive.google.com/file/d/15asgRsVLpVteMVIl3vi7WMrHoAY0CSW5/view?usp=sharing

https://www.hawaiinewsnow.com/2021/03/17/state-commission-rules-end-diversion-kauai-stream/

Mahalo nui loa,

Posted 3/16/2021: CWRM – Historic Ruling For Lawai Stream Today!

Friends of Maha’ulepu
FOR IMMEDIATE RELEASE- March 16, 2021

Media Contact
Bridget Hammerquist, Friends of Maha’ulepu:
p: 808 742-1037 | c: 808 346-1973

Historic Restoration of Uninterrupted Flow for Lawai Stream

More than 100 years of total base flow diversion of Lawai Stream ended today. In its ruling this morning, the State Commissioner on Water Resource Management (CWRM) adopted a motion that starts a new era of stream restoration. No longer will diverters be allowed to take 100% of base flow, all the flow from our streams when its not raining, as has been historically done throughout the State. This is a new standard for Lawai Stream. In their deliberations, the Commissioners made clear their recognition of the need to preserve base flow in all our streams. The Commissioners’ decision followed an outpouring of community support from Friends of Maha`ulepu members, a non profit 501(c)(3) with a mission to restore and preserve healthy stream flow on Kauai. Other water groups on Kauai, Kia`i Wai `o Wai`ale`ale and Ho’opulapula Nā Wai o Puna, also submitted testimony in strong support of setting an instream flow standard that would guarantee mauka to makai flow in Lawai Stream.  Supportive testimony was also offered by Earth Justice, a successful champion of the stream restoration achieved on Maui.

This historic decision is the culmination of the community’s outreach to State DLNR. In response, the State’s hydrologist came to Kauai, met with concerned residents, toured the stream channel while measuring and studying flow patterns over the past 2 years. The Commissioners adopted the amended recommendations of the hydrologist today, noting the importance of balancing stream flow and health against the off stream agricultural use. Restoring continuous flow will discourage hau bush and other invasive vegetation from blocking the stream channels. Keeping the stream channels clear will go along way to reduce flooding that has been caused by the overgrowth of vegetation. Continuous flow will also benefit healthy near shore waters, fishing and other traditional and cultural practices. Some who testified discussed their plan to restore loi kalo (taro), which before sugar was well established along Lawai Stream.

For more details, see is the amended Lawai Instream Flow Standard adopted by the CWRM as submitted by the DLNR hydrologist and supported by today’s community testimony as his email below reflects.

Mahalo nui loa,

Posted 2/25/2021: DOH Oversight Bill. When FOM was fighting to prevent an industrial dairy from operating in Maha`ulepu, with the help of Surfrider and their water quality testing we learned about significant fecal bacteria counts in the Waiopili Stream and the near shore waters at Gillian’s Beach. Despite regular testing with chronically significant elevations, neither FOM nor Surfrider were able to persuade the State Department of Health (DOH) to post a legally required warning when the bacteria counts are that high. You may recall, we had to file a formal complaint with the EPA, providing them all of the Surfrider water quality test results to secure signage and increase public safety. After our success with the dairy fight, FOM requested a meeting with Senator Mike Gabbard, the senator responsible for State DOH oversight. We arranged the meeting and invited key representatives from Surfrider to join us. Senator Gabbard was quite concerned at the lack of response by DOH to clear evidence of wastewater contamination of the Waiopili and other Kauai island streams. We also shared some serious misrepresentations by then DOH Director and the State Clean Water Branch. In response, Sen. Gabbard introduced SB 350 which has passed out of its initial committee hearing. We need as many of our supporters as possible to register their support for SB 350 to the Senate Way and Means Committee (WAM) not later then 9:30 am Monday March 1, 2021. Your support can be as simple as a statement in both subject and the body that says “Please support SB 350”.

To submit your support for SB 350, you will need to click on the following link to register on the Legislature’s website: http://www.capitol.hawaii.gov/login/register.aspx. Once registered and verified, then you can click on the following link to get to SB350 where you can comment and indicate your support for the bill.

A short summary of the bill follows:

Requires the Department of Health to fill the vacant division chief staff position within the Environmental Management Division by 10/1/2021, and consider environmental justice issues when making certain assessments and determinations. Requires the Clean Water Branch to perform water quality testing during brown water advisories, inform the public of health risks associated with water runoff during brown water advisories, and establish an Environmental Management Division Oversight Advisory Board. Requires the Legislative Reference Bureau to conduct a comprehensive review of the Environmental Management Division. (SD1)

What they will notice are hundreds of individuals that “support”. They often don’t have time to read comments. If you would like to add an additional comment as the reason for your support, please feel free to incorporate any or all of the following:

1. Prior conduct of State DOH confirms the need for Department oversight because of its failure to protect our environment from confirmed contamination.
2. There will be no significant cost associated with passage of SB 350.
   1. DOH has had funding for an Environmental Management Director for years but the position remains vacant.
   2. The bill seeks to assure that beaches are tested based on public health risk and are not restricted to testing beaches on tourist body count.
   3. Testing schedules need to be maintained, even during Brown Water Advisories (BWA).
   4. Cost of warning signs for contaminated waters not expensive $5,000-$10,000 for the entire State.
   5. SB 350’s DOH audit requirement already under that department’s budget; DOH failed most recent self-audit.

Mahalo nui loa,

Posted 2/18/2021: Protecting Our Water! By the time we successfully defeated the proposed 2000 cow industrial dairy that had been planned for Maha`ulepu, we realized how little protection there was on Kauai for our fresh water streams and rivers. As you may recall, we realized from documents filed with the State that waters from Wai`ale`ale and the East Wailua watershed can be ditched all the way to the Waita Reservoir in Koloa. That earthen reservoir now holds more than 3.9 billion gallons of water diverted from Kauai streams. After our dairy fight was won, we began focusing on restoration of natural stream flow. After 2 hearings before Department of Land and Natural Resources (DLNR), the Land Board ordered a partial restoration of stream flow to both Wai`ale`ale and Waikoko streams. That ended a 100 year practice where stream diversions were designed to take all of the flow on days without rain, often leaving more than a mile of dry stream bed in these historic and precious streams. Since Kauai is the oldest of the Hawaiian island chain, there are hulas and chants to Wai`ale`ale and practitioners who describe her as the piko for the Hawaiian Islands. What better place to protect. As the Hawaiians learned long ago, protecting mauka to makai flow is the only way to protect natural stream habitat and biota as well as the health of the reefs and near shore waters of which our fish population depend.

Unfortunately, as we began the effort to restore water to these and other streams, we learned that Grove Farm was diverting nearly 30 million gallons daily (MGD) from these East Kauai streams to the Kapaia Reservoir where they built a surface water treatment plant (SWTP) in 2004 via a public/private partnership with the County of Kauai. Pursuant to their partnership agreement, the County, us as tax payers and water rate payers, paid 2/3rds of the cost and Grove Farm 1/3. In total violation of State and Federal law, in effect than and now, there was no environmental review or State permit issued for the millions of gallons removed daily from our streams and aquifers under that agreement. See Department of Water engineer, Dustin Moises’s email confirming these facts.

To address these ongoing violations in the operation of the KDOW/Grove Farm SWTP, an operation that lost its required NPDES wastewater permit in April 2016, has been plagued with aluminum sludge and other exceedences and is still without the required NPDES wastewater permit to operate, we filed a lawsuit in 2018 that is now on appeal. Judge Watanabe of the Fifth Circuit in Lihue granted three Summary Judgement Motions filed by KDOW as they claimed there was no merit or triable issue of fact to any of the claims in our complaint. Please find here our Opening Brief, with Appendices, just filed this week. We believe there is strong merit to our case and we may have to go all the way to the State Supreme Court but believe we will prevail. The Supreme Court in Kauai Springs objected to removing 600 gallons a day without proper environmental review. At least 30 MGD is being diverted from the Wailua watershed.

There is little question that the potable water source that services Puhi-Lihue to Kapaa, the Waiahi SWTP that Grove Farm and KDOW built, has never been environmentally reviewed. In its response to our KDOW comment objecting to these violations, KDOW stated that they did not review the “raw (water) sources”. KDOW claimed it was a technical but important distinction, a serious environmental lapse that does not comply with the Hawaii Environmental Protection Act (HEPA) as argued in our attached Brief.

Finally, because we know there is a serious water issue with the volume and quality of our stream diverted ditch water used by Grove Farm and KDOW to service commercial and residential costumers from Lihue to Kapaa, we were asked to help review the advisability and feasibility of Hokua Place, a 769 unit development proposed for 96 acres of prime ag land mauka of the Kapaa bypass. A hearing will be held before the Land Use Commission (LUC) March 10-11. The LUC has been asked to change the 96 acres of prime ag land and reclassify it as urban. With serious infrastructure shortages, including water, the following links contain the testimonies from several key experts and members of the community that have been put before the LUC objecting to changing this valuable land from prime ag to urban.

Statements and Rebuttals
https://www.dropbox.com/sh/aroqsjaqvvm3mhw/AACzT4bxLkqtju6hpF8uDbX5a?dl=0

Book and Cover Letter
https://drive.google.com/drive/folders/13KUOt_1NB_CrI1Yx2eZutfL-XokCxgEL?usp=sharing

Many have been busy trying to keep our island safe and I, for one, am glad that our Board of Directors, along with the much needed donations from our members, have voted unanimously to support each and every one of our current efforts to support the public’s health and environment of Kauai.

Mahalo nui loa,

Posted 1/22/2021: Water Update: The lawsuit filed by Kia`i Wai `o Wai`ale`ale contesting the County’s purchase of water from Grove Farm without any permit from the State Commission on Water Resource Management (CWRM) as State law mandates and without any environmental review of the streams and tributaries that are diverted into Grove Farm’s Kapaia Reservoir is not before the Interim Court of Appeal (ICA). Our opening brief is due Feb. 19, 2021.

Recently, KIUC renewed its application for a Revocable Permit (RP) to continue diverting water from Wai`ale`ale and Waikoko streams, ‘Blue Hole’, despite not having the ability to get the diverted water to their Waiahi hydro power plant for the past 18 months because of major damage and disrepair of the 5 mile Ili`ili`ula ditch system. In their renewal application to the Board of Land and Natural Resources (BLNR), KIUC admitted to the fact that the water is diverted from the 2 State land streams, and per their RP is supposed to be diverted for hydro power production, but they have been unable to use the diverted waters since March of 2019. The BLNR staff recommended that BLNR renew KIUC’s RP at the December hearing because KIUC has continued to pay the State $4800 plus per month even though they couldn’t use the diverted water. The water is flowing freely and is lost to the stream or any productive use and KIUC ratepayers are picking up the tab. Our thanks to all who submitted testimony objecting to the renewal of KIUC’s RP. Once again BLNR ignored our testimony, a strong testimony offered by Earth Justice and the multiple requests for a Contested Case. This is a copy of the Contested Case hearing request filed with BLNR and supported by 11 sworn testimonies. BLNR has not responded. At the hearing in December, BLNR renewed KIUC’s RP.

Where do we go from here? We conferred with several law firms and mounting a State Court action will probably be futile because the State hasn’t show a willingness to enforce their own laws or the Constitution. We are now exploring a Federal Court action.

On another front, KIUC has filed with the PUC seeking permits for a pump storage hydro power operation in West Kauai plus they also seek to construct a second hydro power plant which can be fuel based on DHHL land. Earth Justice has intervened on behalf of Po’ai Wai Ola/West Kauai Watershed Alliance and is asking the PUC not to grant any permit until KIUC complies with the law and completes and EIS in compliance with the Hawaii Environmental Protection Act (HEPA). Just as with Blue Hole, KIUC wants the permit first, promising to meat the legal requirements after the fact.

Mahalo nui loa,

Posted 12/30/2020: New Year Wish and Update. Thanks to all who submitted testimony opposing the renewal of KIUC’s revocable permit (RP) for the diversions at Wai`ale`ale and Waikoko Streams. Not only has KIUC failed to maintain these dam diversions, but they have not even used the water diverted from these two State land streams because of extensive damage to the ditch system. We were hopeful that their non use of the water and the poor condition of the diversions would prompt the DLNR Board to not renew. KIUC only received 4 votes from the DLNR 7 member Board but that was sufficient to allow 14 million gallons daily (MGD) to continue being removed from these revered streams. Please find some of the declarations filed in support of our request for a Contested Case Hearing. We await a written response to this and our objections to DOH’s proposed NPDES permit for Grove Farm’s Waiahi surface water treatment plant (SWTP), an operation that has been without this Federal and State required permit since 2016. We’ll keep you posted as we learn more. For now, have a good end of year and stay safe out there.

Mahalo nui loa,

Posted 12/9/2020: Oppose KIUC RP7340 Renewal!
Aloha Director Case and Members of the Board of Land and Natural Resources,

The following testimony is offered in opposition to any renewal of KIUC Revocable Permit 7340.

KIUC, per their 2020 RP7340 renewal application, confirms that no water has been diverted from Wai`ale`ale and Waikoko, State land streams, this year. “No diversion of water in 2020 due to damage to the ditch system.” Agenda Item D-5, Exhibit A. They offer no evidence of any detrimental consequence from the loss of this water. This confirms what we have always maintained every year we have objected to the renewal of RP7340, that the 40 MG diverted daily from State land and other Wailua streams is not necessary to meet the power needs of Kauai. For this reason alone RP730 should not be renewed.

KIUC does not offer anything to suggest that the damage and no water taken were in anyway detrimental to KIUC’s production and delivery of power in 2020. In their most recent Currents issue, KIUC reports that both of the Waiahi hydro power plants generated a mere 8/10ths of of 1% of the total power revenue for the island of Kauai in all of 2019: page 19. There are no figures available for power, if any, generated by the Waiahi hydros in 2020.

RP7340, if renewed and assuming the required ditch repair, would allow KIUC to resume diverting up to 25 MGD to operate the upper Waiahi hydro and 40 MGD to operate the lower hydro:

“KIUC needs up to 25 MG in the upper forebay of the Upper Hydro and 42 MG in the lower forebay of the Lower Hydro.” See Report On Facilitated Discussion by Robbie Alm, where he reports on the required water need of each hydro which he learned from KIUC, a fact that had previously eluded the public.

When the Board deliberates on whether or not to renew KIUC’s RP7340, we request that the Board, in keeping with their Public Trust duties, consider the significant volume of water required to operate the two Waiahi hydros which is diverted 5 miles from the point of origin to the Waiahi hydro. Please see Wailua schematic map prepared by CWRM hydrologist, Ayron Strauch. Not only are the waters of Wai`ale`ale and Waikoko (at least 14 MGD) diverted 5 miles without any EIS for these 2 State land streams in a Conservation district, but none of these diverted water are returned to their streams of origin, clear violations of HRS §171-58c. The Wai`ale`ale stream dam diversion is within a protected habitat for at least 1 endangered species. See prelim DEA comments from KDOW engineer Dustin Moises. In his email, Dustin is focused on the failure to complete the required environmental review as it pertains to the operation of Grove Farm’s Waiahi surface water treatment plant. The connection to RP7340 is the fact that water from KIUC’s hydros is release to Grove Farm from locations indicated on the Wailua schematic for use and sale to KDOW from their Waiahi water treatment plant. One of the conditions of RP7340 is that ratepayers are not supposed to be charged for any of the water used by the hydros. Ratepayers are paying for water in their bill to KDOW as Grove Farm openly admits to selling KDOW water for more than 15,000 accounts or 20% of the potable water consumed on Kauai. Please see link to Grove Farms Newsletter Sept. 2020.

https://www.grovefarm.com/news/grove-farm-newsletter-september-2020-edition

As Mr. Moises points out, the arrangements for taking the water transferred from Wailua to Lihue watershed is all done without any EIS as required by HRS §171-58.

In the last legislative session DLNR offered a bill to amend HRS §171-58 that would have changed the requirement for an EIS to compliance with HRS §343, changing the required standard to EA or EIS, confirming that DLNR and the Land Board know that an EIS is required before water can be diverted from the streams covered by RP7340. That bill did not pass and the current law applicable to this RP renewal application has not been satisfied. KIUC’s application for renewal of RP7340 must be denied.

The CWRM Wailua schematic map and the Report on the Facilitated Discussion by Robbie Alm confirm that the ditch systems involved pull at least 40 MGD from Wailua streams, reducing aquifer and well recharge. Kauai should not be subjected to the massive shift of water between neighboring watersheds for so minimal benefit. Grove Farm, even though advised to do so, has never come before the Board or joined in KIUC’s permit despite testimony given by their project manager, Arryl Kaneshiro, that they rely on and use the water after it passes through KIUC’s hydros. Testimony of Mr. Kaneshiro, BLNR meeting April 26, 2019 on Agenda Item D-9.

Compounding the above is the recent climate prognosis that Kauai will experience as much as a 50% drop in rainfall in the near future due to drought. This information was part of the recently released Kauai Low-Flow study, requiring agencies to, at a minimum, not support water permits, where the diversions are operated in violation of State law. Attached are photos of the Wai`ale`ale and Waikoko diversions taken in 2000 which show the dam diversions in good repair. See attached Water Booklet. In the attached there are also several recent photos that demonstrate the lack of maintenance and repair and depict exposed rebar which is a hazard that has not been taken care of since we brought it to this Board’s attention every year since 2017. Here is a copy of RP7340 with conditions and each condition requiring the maintenance that has not been done are highlighted.

USGS Low-Flow Characteristics of Streams from Wailua to Hanapēpē, Kaua‘i, Hawai‘i
https://pubs.usgs.gov/sir/2020/5128/sir20205128.pdf

KDOW’s manager advised the Kauai Water Board in 2019 that he could not recommend KDOW exercise its option to purchase Grove’s Waiahi SWTP as Grove did not have a permit for the water they were diverting into Kapaia Reservoir before its treatment and sale to KDOW.

Link to KDOW Manager’s report 1/25/2019 see page 68
https://drive.google.com/file/d/10zQPcb2Ftvk0zDLWGqulUZnJdHNNV-tx/view?usp=sharing

Link to Grove Farm KDOW agreement
https://drive.google.com/file/d/1H69xZ-JhuJta4s-TbwGPeATnSuCbJUWp/view?usp=sharing

On behalf of Kia`i Wai o Wai`ale`ale and Friends of Maha`ulepu, we hereby Request a Contested Case Hearing on this matter if RP7340 is renewed.

Mahalo nui loa,
Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder

Posted 12/7/2020: Another Grab at Wai`ale`ale. It’s that time again. KIUC has filed a request to renew its Revocable Permit 7340. BLNR is scheduled to decide on their bid for renewal this Friday Dec. 11, 2020 at 9am or soon thereafter as the matter is called. All public comments must be filed not later than Wednesday 12/9/2020 to [email protected]. If you intend to file comment opposing the KIUC renewal, please add Oppose RP 7340 in your subject line. The basis for your opposition may include any of the following:

1. As stated by KIUC in their petition for renewal, Agenda Item D-5 – Exhibit A, KIUC did not divert water from Wai`ale`ale or Waikoko in 2020 due to ditch system damage. The island power system was not interrupted, proving that KIUC does not need nor should they continue diverting water from these State land streams in a protected conservation district,
2. KIUC reported in their Fall 2020 edition of Currents that the Waiahi hydro power plants, together, accounted for only 8/10ths of 1% of all the power KIUC sold in 2019.
3. We have known for sometime that the 2 Waiahi hydro power plants produce only 1% or less of the island’s power. Now that we know they generate 8/10ths of 1% of the total revenue for KIUC, there is substantial support for BLNR to non renew KIUC’s RP 7340 which, when the ditches are repaired, diverts an average of 14 million gallons daily from Wai`ale`ale and Waikoko not to mention the many other stream diversions along the 5 mile Ili`ili`ula ditch system between Wai`ale`ale and the upper Waiahi hydro that add the necessary 20 plus million gallons to operate the upper Waiahi hydro power plant.
4. In addition, two other ditch systems, South Intake ditch and North Intake ditch, collect from the upper Waiahi hydro and additional streams to provide the 40 million gallons daily required to operate the lower Waiahi Hydro… all this water pulled from Wai`ale`ale and the other Wailua streams to increase KIUC’s revenue by 8/10ths of 1% of their total power revenue. See the attached schematic of State hydrologist Ayron Strauch regarding the ditch system and flow of water to the Waiahi hydro power plant. Also please see a report filed with BLNR by mediator, Robbie Alm, confirming the amount of water KIUC said they need to take for their minimal power production at the Waiahi power plant.

Please feel free to add any or all of the other reasons we have raised previously in objection to this continued devastation of our natural stream flow, biota, traditional and cultural practices and the preservation of the ascetics that are grossly impacted by deteriorating dam diversions with exposed rebar not to mention the threat to human health and safety. Dam maintenance is a requirement of at least 10 of the conditions of RP 7340 and KIUC has failed to comply with any of them. This stream diversion permit needs to be denied. They obviously don’t need it. By their own application for renewal, they admit it has not been in use all year… and their power for Kauai has not been interrupted.

Share this email and please send us a copy of your comment.

Mahalo nui loa,

Posted 11/30/2020: Trying to Save Us and The Environment From Toxic Water. We’ve been hard at work and just wanted to share a couple comments filed yesterday with the Department of Health (DOH). There is no question that Grove Farm is still polluting by their own fillings with DOH. If you read the attached 09-12-2016 emails, at that point they had lost their NPDES permit. It was Terminated by DOH 4/30/2016 and they were admitting to discharging at least 20,000 to 30,000 gallons daily of aluminum, bacteria and mud laden water. Grove continued this operation from April 2016 to present and only after being penalized $450,000 in June of this year for polluting before and after their permit expired did they begin the process to obtain the proper permit. As previously mentioned, they based their per application on an old outdated form with none of the information the current EPA form requires. Please read the comment that follows and the Hammerquist NPDES comment.

For any who filed a comment, we would appreciate receiving a copy of your comment.

Mahalo nui loa,

Aloha Director Elizabeth Char and Staff of the Environmental Health Clean Water Branch, State Department of Health,

Please accept this objection to the Department’s proposal to issue an NPDES wastewater permit (Permit), HI0021894, to Grove Farm’s Waiahi Water Company LLC. The permit must not be issued for the following reasons:

1. 1. The operator, Grove’s Waiahi Water Company, has failed to comply with the Code of Federal Regulations. In their application for the Permit, the operator has not submitted the required EPA Forms 1 and 2C, a necessary prerequisite to the Permit. Had the applicant been required to use the EPA Form 2C, effective March 2019, they would be required to identify the quantity of aluminum and other contaminated sludge produced and the method for its treatment and diosal.”Should a user of the privately owned treatment works desire a authorization to discharge non-domestic wastes, the Permittee shall submit a request for permit modification and an application, under 40 CFR §122.44(m), describing the proposed discharge. The application shall, to the extent possible, be submitted using EPA Forms 1 and 2C…”DEPARTMENT OF HEALTH STANDARD NPDES PERMIT CONDITIONS (Version 15)https://www.epa.gov/sites/production/files/2019-05/documents/form_1_epa_form_3510-1.pdfhttps://www.epa.gov/sites/production/files/2020-04/documents/form_2c_epa_form_3510-2cr.pdf
   2. Rather, Grove’s Waiahi Water Company is asking the State to accept and rely on the untimely and outdated EPA Form 2C submitted by Grove’s Grove Farm Properties LLC, Feb. 2016 for Permit HI0021824. DOH rejected that application.
      https://drive.google.com/file/d/18UcXhCufXgQEwtBfq3LUUcCbGXL8eV3y/view?usp=sharing
   3. The outdated 2016 Form 2C was also found insufficient to support an administrative extension and Grove’s Permit HI0021824 was “Terminated” by DOH.
   4. If HI0021894 is issued to Waiahi Water Co., our Department of Health will be violating the Department’s own NPDES Permit Conditions (Version 15). Waiahi Water Co. has not filed an EPA Form 1 and 2C as Version 15 requires. The only Form 2C to support the current Permit proposed is an EPA Form 2C permit application for HI0021824, submitted by Grove Farm Properties LLC, whose permit was terminated in April 2016 and who has since executed an AOC with DOH for multiple violations of the Clean Water Act as set forth below that resulted in a $450,000 penalty. Despite the name change and apparent attempt to distance themselves from their prior violations, there is little question this is the same operator as both companies are owned by billionaire Steve Case, owner of Grove Farm. Is the public being asked to bend over backwards for a billionaire who has yet to properly address the environmental pollution caused by this surface water treatment plant pulling aluminum laden water from an earthen reservoir with a high concentration of bauxite?“IV. ViolationsUnauthorized Discharge of Pollutants to State Waters During Permit Term27. GFP reported fifty—seven (57) exeeedances of Total Recoverable Aluminum for the time period of May 2011 to April 2016 (attached as Exhibit H). Based on this information, DOH alleges that GFP violated HRS § 342D-50(a) on fifty-seven (57) counts.28. GFP reported one (1) exceedance of Total Recoverable Chromium for the time period of May 2011 to April 2016 (attached as Exhibit H). Based on this information, DOH alleges that GF P violated HRS § 342D~50(a) on one (1) count.29. GFP reported thirty-two (32) exceedances of turbidity for the time period of May 2011 to April 2016 (attached as Exhibit H). Based on this information, DOH alleges that GFP violated HRS § 342D-50(a)- on thirty-two (32) counts.30. GFP reported sixteen (16) exceedances of Total Suspended Solids for the time period of May 2011 to April 2016 (attached as Exhibit H). Based on this information, DOH alleges that GFP violated HRS § 342D-50(a) on sixteen (16) counts.Unauthorized Discharge of Pollutants to State Waters After Permit31. OFF reported thirty-one (31) exceedances of Total Recoverable time period of May 2016 to March 2020 (attached as Exhibit 1-1). Based DOH alleges that GFP violated HRS § 342D~50(a) 011 twenty-six (26) counts.32. GFP reported nine (9) exceedances of turbidity for the time p March 2020 (attached as Exhibit H}. Based on this information, DOH alleges HRS § 342D-50(a) on ten (10) counts.33. GFP reported one (1) exceedance of Total Suspended Solids May 2016 to March 2020 (attached as Exhibit H). Based on this information GFP violated HRS § 342D-5 0(a) on one (1) count.34. GFP reported one (1) exceedance of Chromium for the time period of May 2016 to March 2020 (attached as Exhibit H). Based on this information, DOH alleges that GFP violated HRS § 342D-50(a) on one (1) count.See AOC emphasis in original.
   5. In stark contrast to the foregoing violations and the penalties imposed therefore, Grove Farm told the public in their Sept. 2020 Newsletter that they have never had any toxic discharge to the environment. Needless to say Grove Farm has not been truthful with the public:”Is the discharge water harmful to the environment?No. In the 15 years of operating the facility, we have passed all toxicity testing – all results have been meeting the standards 100% of the time!The discharge is carefully monitored by the State of Hawai‘i Department of Health – Clean Water Branch. The Clean Water Act exists to protect waterways from becoming toxic environments for aquatic life and to protect our environment.”https://www.grovefarm.com/news/grove-farm-newsletter-september-2020-edition
      In fact, even under the new company, Waiahi Water Company, owned by Grove Farm, they continue to pollute the environment as documented in their exceedance reports, which DOH is well aware of. See link to DOH spreadsheet for toxic exceedance between Feb. 2019 and Oct. 2020.
   6. Why is Grove’s dishonesty important as it pertains to Permit HI0021894? Had Waiahi Water Company been required to submit the required Form 2C, their submittal would have to be under oath/penalty of perjury for the conditions and contaminates in the wastewater as of their 2020 application. Not only has Grove deceived the public in their Newsletter, but more importantly, they violated the law when they built their surface water treatment plant. See attached email from KDOW engineer Dustin Moises to former Planning Director Mike Dahilig. In his comment to the Kauai Planning Director, Mr. Moises admits Grove Farm began its surface water treatment operation without proper permits or environmental review:Water in the reservoir comes from State land StreamsState streams Wai`ale`ale and Waikoko are both in a conservation districtGrove Farm failed to apply to CWRM or any other division of DLNR to use the diverted stream water as required by HRS §§171-58 and 343. See link to recent KDOW Manager’s report page 68, where the manager advises the Water Board against purchase of the SWTP because Grove has no permit for the water it is taking and selling to KDOW.Grove Farm has never done a required environmental review despite County funds and State land involved.Link to Grove Farm KDOW agreement.
   7. Article 11 of the Hawaii State constitution mandates the protection of public trust resources. It specifically mandates that all State agencies have a duty to protect public trust resources which include water. HRS §171.58 among other State laws prohibits the sale of water by anyone other than a public utility. In view of the confusion rampant in the State’s documents, e.g. the exceedance spreadsheet for Waiahi Water Company reports for a terminated/expired permit HI0021824 and the States duty to protect our water and land from unlawful contamination, this department, must, require a proper application by the company now seeking a permit and must assure that the operation is not contrary to State law. Moreover, in the Kauai Springs case, the Hawaii Supreme Court has already expressed concern that Grove Farm was operating as a public utility in its sale of water to Kauai Springs when they are not a regulated public utility. See attached Kauai Springs Supreme Court Decision pages 14-15. In the current situation, Grove Farm believes that because they are selling the County potable water they are not acting as a public utility. However, if you consider Grove Farm statements to the public about it production of drinking water for 20% of the island, its operation and the numbers served would be determinant of whether or not they were holding themselves out as an unregulated public utility. That appears to be the case and for this reason alone, Wahahi Water Company should complete the Forms required by the DOH and EPA.
   8. Grove Farm is an operator who thinks they are above the law. See testimony of former Grove Farm manager, Mike Tresler, to the Board of Water Supply:
      “Mr. Tresler was opposed to that idea and stated| that they control the waterways and they don’t want anyone’s approval on what they do with the water. He understood that they have a commitment to provide the water, currently 3 million gallons a day and it will increase on their expansion.” Kauai County Board of Water Supply minutes Dec. 2009 pdf page 19.
   9. Assuming the Department is concerned that Grove’s Waiahi Water Company is the only source for the 20% of the island residents and visitors it serves, please see the following notice to the public, letting them know that all water needs will be met by wells available to KDOW because of problems with the potable water from the SWTP. www.thegardenisland.com/2020/07/22/hawaii-news/water-source-switch-in-effect-for-lihue-hanamaulu-part-of-kapaa/

The people of Kauai deserve better than what the Department of Health is proposing to do based on outdated and previously rejected documents and an operation known to be problematic up to and through the present.

John J. Kechloian, Treasurer
Friends of Maha`ulepu, a 501(c)(3)

Posted 11/24/2020: Fraud? It’s Really Messy. Amazing find since our last email. See email from KDOW engineer, Dustin Moises, to Mike Dahilig, when he was the Planning Director. You won’t believe what you are about to read. As you’ll recall, we have a lawsuit ongoing against KDOW for their plan to add 9000 feet of a new 18″ main. We objected to their EA on the grounds that there was no permit for the water being diverted from the Wailua watershed which includes State stream diversions on Wai`ale`ale and Waikoko. We also objected to the lack of any environmental assessment of the streams, animal or plant life because KDOW limited their EA to an evaluation of the Kapaia Reservoir and some wells in the area, deliberately failing to evaluate the environmental impact to the source of the water diverted to the Kapaia Reservoir. As you read the email from our water engineer, Moises, to the Planning Director you will find that KDOW admits that they are not doing what is legally required.

Our water department, KDOW, is cooperating with Grove Farm to deceive the public and prevent disclosure of the lack of proper permits and environmental review for the water KDOW purchases annually from Grove for $2.4 million in addition to paying 2/3’s of all operating, maintenance and expansion costs plus 100% of the power bill to operate Grove’s water treatment plant. See attached KDOW/Grove Farm agreement.

KDOW pays those bills with the money they collect from us. Even the County engineer knows that County funds were used to construct the WTP and use of government funds mandates an environmental review of the water source and surrounding area before the plants construction. Dustin Moises admits in his email that no environmental review has been done even with the current EA that prompted our lawsuit.

The email attached is nothing short of a total admission to every claim made in our lawsuit. If successful on appeal, it will be dispositive of our claims. Basically the engineer admits:

1. KDOW-Grove Farm Surface Water Treatment Plant was constructed with County money, without any EIS or EA in violation of HEPA and HRS 343
2. The plant has operated since 2004 with aluminum exceedences and has continued problems with the State on a wastewater permit they lost April 30, 2016. (This fact we know from the recent Public Notice and its the one item not discussed by Moises.) See link for aluminum exceedences from 2009 – 2019:
   https://drive.google.com/drive/folders/1Ck14Wt938OfjkaEuN37RO5AOxVgvpLfL?usp=sharing (missing reports for 2018-2020 have been requested)
3. The SWTP operators have never obtained the State required permit for the diversion and sale of State water. (Moises refers to the operators failure to clear the operation with CWRM which confirms the merits of our claim that this operation has been, since day one, in violation of HRS §171.58.)
4. Moises admits that the public is not being informed in the DEA about the need to install the pipe because of the known plan to expand the SWTP from 3 MGD to at least 4.5 MGD giving rise for the need for increased capacity and the need for the new 18″ main. So while the 18″ main is proposed as an alleged relief of a pressure problem caused by a segment of 12″ main, Moises reports that there is a question as to whether that pressure problem is even real and he refers to hand written notes and calculations by others in the Department and by then Director Bryan Wienand.
5. He admits that they should study the environmental impact to the Wailua tributaries that are diverted into the Kapaia Reservoir noting that they have a problem and should include the upstream flow or water source because no EA or EIS has ever been done.
6. He reports on the need for a Cultural Impact Study and suggests that his review of the EA did not find it sufficiently open and transparent with the public.

Now Grove is asking the State to issue the required NPDES wastewater permit that they lost April 30, 2016. In fact, if you go on the State’s website you will find: their permit was “Terminated.”

So how can the State now propose to give Grove an NPDES wastewater permit when so many laws have been violated in the construction and operation of the Waiahi WTP already?

Your comments to the DOH proposal to issue an NPDES wastewater permit, a permit that should have been in place between 2016 and now, are due not later than Sunday, November 29, 2020. All public comments should be emailed to:

[email protected]
[email protected]
[email protected]

Waiahi Surface Water Treatment Plant DOH Notice of intent to issue NPDES permit (relies on Feb. 2016 untimely application)
https://drive.google.com/file/d/1qjmCN_ilb67R9X4WRfVl2BjllokdAglF
Supporting Docs for DOH Notice
https://drive.google.com/drive/folders/1pLtZtXa9rJxDmNqX5HbMIbhb6NF9hEYe

Feel free to use any of the attached for comment we have due Nov. 29 on the NPDES wastewater permit the State has given Notice of their intent to issue to Grove. Let’s demand that the State stop the deceit.

Their operation has violated multiple State laws, they don’t have the permits to capture or sell the water from State land and East Wailua streams and now they want to use an outdated application filed in 2016 which on its face expired in 1998 rather than complete the application legally required per the EPA Form 2-C NPDES wastewater permit application effective March 2019. See link below for current wastewater application Form 2-C and see attached for the outdated Form the State is proposing to rely on to support the new wastewater permit. The new permit is to be issued to Waiahi Water Company while the outdated Form DOH is relying on was submitted by Grove Farm Properties.

Current EPA Form 2-C NPDES Wastewater permit app
https://www.epa.gov/sites/production/files/2020-04/documents/form_2c_epa_form_3510-2cr.pdf
Share this and get many friends and family to comment. If Grove and our Water Department can operate in violation of the law to the extent they have, how can we trust the quality of our drinking water?

Mahalo nui loa,

Posted 11/5/2020: Is DOH Protecting Kauai’s Drinking Water? As you may recall, in 2018 we learned that stream water diverted from State land streams, Wai`ale`ale and Waikoko, was carried 5 miles in the ili`ili`ula ditch system, primarily an earthen ditch transmission system that also collected water from additional streams on Grove Farm land, providing the flow needed by the Waiahi power plants and thereafter being transported along with more water taken by Grove Farm from South Fork Wailua to the Kapaia Reservoir. Thereafter, Grove used the ditch water in the Kapaia Reservoir, directing it through Grove’s Waiahi surface water treatment plant (SWTP) before selling it to Kauai Department of Water.

When Grove treated the ditch water, they added agents intending to remove the high concentration of free aluminum along with other metals found in the water because of the bauxite in the soil of the earthen Kapaia Reservoir. Over the years in its operation and sale of the processed water to Kauai Department of Water, every water quality report filed with the State reported exceedences of aluminum in the wastewater from the treatment process. When we learned of this, you may recall, we had testing done on the drinking water because we were concerned that if there was such exceedences in the wastewater of the processing plant, what was in the drinking water? We learned in our first round of testing that some of the potable water samples also had aluminum in excess of the EPA safe limit. In the second round of testing, there was no aluminum detected. We don’t know what was done at the SWTP, if anything, to account for the change. There are attachments that contains much of the reports and correspondence concerning this issue and the facts leading up to the ultimate loss of their NPDES wastewater permit, April 30, 2016. See both Waiahi NPDES permit history and viewer links. In these attachments, there are many communications between the State and Grove informing them that their NPDES wastewater permit had expired and informing Grove that they had not timely submitted a renewal application. Grove acknowledged in a letter to DOH that they had continued to operate the SWTP without the required NPDES wastewater permit. The State informed Grove that they needed to file a new application and they needed to take care of the aluminum waste one of two ways. Grove knew as of 2018 that they were not disposing of the aluminum waste properly. Rather, they were taking the wastewater from the retention basins and returning it to the reservoir, a reservoir whose water is partly released into the ocean through the Hanamaulu Stream. They were informed by the DOH Wastewater Branch Chief that they could not continue contaminating waters of the US. DOH conducted an inspection. Told them not to do what they were doing, but there was no enforcement action by DOH. Nothing was done and Grove continued operating its SWTP at least until this past July.

Last Friday and now with a new Director at DOH, the DOH is giving Public Notice of its intent to grant Grove a 5 year extension on an NPDES wastewater permit they no longer have. In fact DOH had, in earlier correspondence to Grove, confirmed that the permit expired without any administrative extension.

Grove Farm’s SWTP has continued to sell water to KDOW from a plant operating without legal permits. KDOW has continued to charge the more than 15,000 homes and businesses for this water until July of this year. In July, a TGI article informed readers that, “until further notice”… the SWTP was going to be offline and the water for the 15,000 accounts it serviced would now come from wells. The change from the SWTP treated water to well water was reportedly based on problems with the color of the potable water coming from the SWTP.

www.thegardenisland.com/2020/07/22/hawaii-news/water-source-switch-in-effect-for-lihue-hanamaulu-part-of-kapaa/

The next notice we found was a Public Notice that appeared in TGI last Friday, copy attached.

What a mess. It is clear from the attached that Grove Farm’s surface water treatment plant NPDES permit expired 4/30/2016 because of a failure to timely file an NPDES renewal application no later than 180 days prior to the April 30 date. See attached March 16, 2018 DOH letter. See also Waiahi NPDES permit history on Grove Farm stationary. Grove responded then by saying they had tried to apply for renewal by filing in Feb. 2016. See attached NPDES Form 2C. Up until the present notice, the State has taken the position that the Feb. 2016 renewal application was untimely. How is it now timely to support the DOH Notice of a proposed intent to issue a 5 year NPDES permit extension? How is it now OK to put the contaminated decant back into the reservoir when that was not an option according to Sina Pruder’s letter of 2016? See attached. What about the aluminum exceedences in the wastewater? Per the following link, the public has until November 29 to comment on the DOH proposal to grant a five year extension of a permit that expired 4 years ago. All comments should be sent to [email protected] no later than November 29, 2020.
Waiahi Surface Water Treatment Plant DOH Notice of intent to issue NPDES permit (relies on Feb. 2016 untimely application)
https://drive.google.com/file/d/1qjmCN_ilb67R9X4WRfVl2BjllokdAglF
Supporting Docs for DOH Notice
https://drive.google.com/drive/folders/1pLtZtXa9rJxDmNqX5HbMIbhb6NF9hEYe

If they couldn’t use a renewal application in Feb. 2016, why is that document being used today? Are they taking advantage of our new Director’s lack of institutional knowledge/memory?

When you file your comment, please feel free to use any part of this email and share this notice with anyone.

Mahalo nui loa,

Posted 10/19/2020: Housing Bill Up For Final Council Vote. For those in our hui who have been following this issue: County Council Bill 2774 proposes to amend Kauai’s Housing Policy and provide, for the first time, a complete exemption from the need to provide a certain percentage of affordable homes with developments of 10 or more housing units. Kauai has had an affordable housing policy for more than 30 years which was codified in 2008. The pending bill with the new exemption section is to be voted on by the County Council on Wednesday October 21.

It would give exemptions to builders in the town cores of Lihue, Kaleheo and Koloa and to developers of multifamily developments outside the VDA (Visitor Destination Area).  This is likely to make it even harder than it is now for working families and older people to find affordable housing while increasing the potential for buyers from off island to easily pick up real estate on Kaua’i.  A flier from a Kaua’i real estate agent today noted:  ‘I have not seen the market like this since the boom of 2005.  Real estate is on fire!’

Please consider writing to our County Council members by end of day Tuesday. Please send your comments to [email protected]. The following letter is a suggestion for you, but it would be preferable if you reword the following to make it your own (otherwise the letters will be counted as one letter).  Your letter needs to go out today, Monday 10/19 or tomorrow Tuesday 10/20. Please add your name and address.

Please do not vote to approve Bill 2774, Draft 5 at your meeting this Wednesday.  Please take the time to draft a bill that will effectively address our severe affordable housing problem.

We request that you:

1. Remove the exemptions for developers in the town cores of Lihue, Kalaheo, and Koloa and for developers of multifamily developments outside the VDA (R10 or greater). The present exemptions will allow developers to develop their properties without building any affordable housing.
2. Require maximum long-term affordability.
3. Allow the developer to satisfy his affordable housing requirement by donating land and offsite infrastructure (sewers, water, electrical, access and utilities to property border) instead of providing turnkey or finished housing units.  This will save the developer a lot of money.  At the same time, the County will then own land that can be developed into affordable housing – or transfer the land to a nonprofit like Habitat for Humanity or a housing land trust.  This will ensure that the housing will be affordable for generations.

Any Council member who has an interest in property on the island or who works for a company that has an interest should recuse himself/herself.

[Your Name and Address]

Posted 8/25/2020: Public Comment Objecting to Proposed Actions G2, G3 and H3. As a rate payer, a kama`aina and resident of Kauai, please accept this comment filed on behalf of myself and others in the organizations I represent who object to the contract between KDOW and Grove Farm and in particular to the terms and conditions associated with the purchase and sale of water from the Waiahi Surface Water Treatment Plant. The contract and the actions of KDOW and Grove Farm constitute an unfair and deceptive practice in violation of the Federal Trade Commission and HRS §480. KDOW and Grove Farm are operating as if their actions are legal when in fact they violate our State Constitution, its Public Trust Doctrine and HRS §§ 171-58 and 343.

This Board is likely aware of the Notice of Appeal and Civil Appeal Docketing Statement on file with the Interim Court of Appeal that directly challenges the legality of the Kapaia Cane Haul Road 18″ main project. Based on the pending appeal and the legal challenges raised which are not resolved, there should be no further plan to construct or install, no cost incurred that rate payers will have to cover and no further action should be taken by your Board or KDOW which involves the sale of State water without permit, license or lease for that water. Your actions to date have deprived the State of rightful compensation and have further deprived the beneficiaries specifically provided for by the Hawaii State Constitution through the shared allocation of water revenue to DHHL and OHA.

Until the appeal is resolved, this Board and KDOW should cease and desist from any further action under its contract with Grove Farm to avoid the risk of needing to disgorge even greater ill gotten gains. There is no question that KDOW is aware of the legal issues arising from its contract with Grove Farm which has been the subject of prior Board discussions an example of which is found in the January 25, 2019 Manager’s Report:

“The Department has previously requested a copy of the agreements referenced in Section 2.b. Control of Surface Water System, but to date has not received them. Without a copy of these agreements, the Department cannot properly evaluate the possibility of acquiring the SWTP. Without documentation regarding Grove Farm ownership rights to the source water (for e.g. appurtenant and riparian rights), the ditch system, and its obligations to other parties with whom it may have water agreements, the Department cannot ensure the continued supply of water as a transferee of these “rights.”” Page 69, copy attached.

Mahalo nui loa,

Posted 8/24/2020: More on the Lihue Water Issues. As you may recall, we recently appealed the Circuit Court’s denial of our case that objected to KDOW’s illegal purchase and sale of diverted stream water without proper permits from the State, per HRS §171-58 or environmental review of the source waters, HRS §§171-58 and 343. Despite our appeal of the Judge’s decision, KDOW has decided to begin construction and installation of nearly 2 miles (9000 feet) of an 18″ main, Kapaia Cane Haul Road 18″ main. The project will cost ratepayers more than $3 million. If the County proceeds with the project and losses the appeal, KDOW runs the risk of incurring greater expense if it is required to remove what it installs.

This Thursday Kauai Department of Water Board will review 2 agenda items related to the start of construction and installation of the Kapaia Cane Haul Road 18″ main despite the pending appeal. Public comment can be sent by email up to close of business Wednesday August 26: [email protected]. The Civil Appeal Docketing Statement (CADS) which describes our legal bases for the complaint filed against this project. Our main objection is that no one has the right to divert and sell the waters of Wai`ale`ale, Waikoko and our other streams without permit or proper review of the environmental impact. When you comment on this project, addressed in KDOW agenda items G2, page 76 and/or H3, page 136, feel free to use any of the objections raised in our case, set forth in the attached CADS. Our comments may save rate payers, all of us, an expense that should be avoided until proper environmental review is complete and there is compliance by KDOW with the State statues and water code.

We know that KDOW itself recognizes that there is an issue as to its right to sell/deliver the diverted stream water ditched to the Kapaia Reservoir and treated by Grove Farm in their surface water treatment plant. In a KDOW managers report in January 2019, the manager told the Water Board that he couldn’t recommend the Board exercise its option to purchase Grove Farm’s SWTP because Grove Farm has not produced any documents confirming its right to divert and sell State water.

“The Department has previously requested a copy of the agreements referenced in Section 2.b. Control of Surface Water System, but to date has not received them. Without a copy of these agreements, the Department cannot properly evaluate the possibility of acquiring the SWTP. Without documentation regarding Grove Farm ownership rights to the source water (for e.g. appurtenant and riparian rights), the ditch system, and its obligations to other parties with whom it may have water agreements, the Department cannot ensure the continued supply of water as a transferee of these “rights.”” Page 69, copy attached.

Here is a link to the KDOW Board agenda for this Thursday: http://www.kauaiwater.org/AgendaAug20.pdf  Page 76, Manager’s Report No. 17-50 and page 136, Manager’s Report No. 21-04 both relate to the Kapaia Cane Haul Road 18″ main.

Mahalo nui loa,

Posted 8/16/2020: Immediate Action Required! Please share this email with everyone you can. The link that follows enables you to contact the governor directly. He needs to hear from as many of us as possible as soon as possible! The nurse in me can’t sit by without asking for help to assure the Governor takes immediate action to correct either gross incompetence or deliberate criminal negligence by our State Department of Health (DOH). Part of the problem may be due to the fact that its director, Bruce Anderson, is not a physician. Although he has a PhD, the decisions he made that were not corrected by DOH epidemiologist, Sarah Parks, MD left the State with only 10 contact tracers on Oahu and a total of only 4 additional for all of the outer islands.

The State’s inability to trace and contact individuals who were exposed to a person that was confirmed to have Covid is having and will have catastrophic repercussions on Oahu for weeks to come. It is now out that Bruce Anderson and Sarah Parks deliberately lied to the State Senate Special Committee on Covid, claiming there were more than 100 people doing contact tracing. That is and was not true. As Oahu’s new cases climbed into the hundreds, with more than 350 new cases this past Thursday, there were only 10 qualified State employees to call each of the confirmed patients to determine the number and identity of all whom they had 15 minutes or more of recent contact. Those same 10 were then expected to contact each of the contacts and alert them to the need for testing and quarantine. Needless to say it wasn’t happening and it hasn’t been done effectively for weeks. What does this mean for Oahu and the rest of us, there are a whole lot of people who have been in contact with Covid positive patients and they don’t even know it nor do they know of the need to protect their family members.

Our Hawaii US Senators and Representatives secured $50 million for Hawaii for contact tracing and testing. Now a congressional investigation is to determine where that money went.

On Friday, August 14, Tulsi Gabbard, Hawaii physicians and other health professionals appeared in a 57 minute shocking press conference exposing a lack of any true contact tracing on Oahu. But for the courageous actions of Jennifer Smith, MD who has worked in the Department of Health contact tracing unit since 2016 (contact tracing is a routine function of the State’s Health Department for other contagious illnesses like TB, swine flu, Ebola, among others) we would never have know that the department of health was not doing the job the public expects. Rather, the public has been falsely reassured with lies and confabulation.

“Dr. Jennifer Smith says there’s no army of contact tracers — only a group of demoralized workers buried under mounting positive cases and forgotten by their leadership.” 3 minute news video: https://www.kitv.com/story/42499261/whistleblower-claims-state-health-officials-are-lying-about-contact-tracing-program

What can we do? Please write to our Governor. The lies coming from DOH must have immediate consequence. Governor Ige needs to replace Bruce Anderson and the State’s epidemiologist, Sarah Parks now! You can contact the Governor directly through the following link. https://governor.hawaii.gov/contact-us/contact-the-governor/

Use any of the information in this email, and any found below in Tulsi Gabbard’s press release, see link, her letter and/or from the Star Advertiser article today. In addition to calling for their immediate termination, because people of Hawaii deserve better, please share your thoughts about bringing children to school this next week for one week of meetings with other classmates and teachers when medical science and our State has recognized that it is unsafe for the children to be at school which is why they will meet this week and then begin online studies only from home. What about the spread of disease, especially now that Oahu is much more infected? What’s going to happen to parents and grandparents from children returning home to multi-generational families who can be contagious even though they may not become ill for a while or at all. If the Department of Education has determined that online education is necessary for the public health and safety, it makes no sense that they can all be co-mingled for one week.

https://www.youtube.com/watch?v=t2VVYeloUV4

Mahalo nui,

Posted 8/10/2020: Water Problems in Lihue! As you may recall, one year ago we were concerned about the quality of the ditch water diverted from State land streams, Wai`ale`ale and Waikoko and other streams in the East Wailua watershed that is being sold to Kauai Department of Water (KDOW) consumers. Without any explanation, an article appeared in the Garden Island informing some 15,000 plus accounts that the source of their water has been switched until further notice. We have yet to learn the cause for the switch other than cloudy and “discolored water at the tap”:

Water-source switch in effect for Lihu‘e, Hanama‘ulu, part of Kapa‘a
https://www.thegardenisland.com/2020/07/22/hawaii-news/water-source-switch-in-effect-for-lihue-hanamaulu-part-of-kapaa/

The waters diverted from the streams by KIUC and Grove Farm fill the Kapaia Reservoir. Unfortunately, the soil of this earthen reservoir has a high bauxite concentration which leaches aluminum into the water. Grove Farm is well aware of the aluminum issue, because the State refused to renew their wastewater permit in 2016 due to a high concentration of aluminum. In a letter to the State in 2017, Grove Farm informed the State that they had been aware of the high bauxite concentration in the earthen reservoir since the 60’s when they were approached by mainland mining companies wanting to mine aluminum from that area. It is not clear what advise, if any, the Kauai Department of Water obtained before deciding to purchase drinking water from the surface water treatment plant built by Grove Farm in 2004. It is not clear what Grove Farm was relying on when they decided to use the diverted stream/ditch water as the source for their Waiahi surface water treatment plant.

Without permit or lease from the State as required by law, Hawaii Revised Statute section 171-58, the water is taken from the reservoir, processed by Grove Farm’s surface water treatment plant and has been sold to the County for more than $34 million since 2004. In a hearing before the Department of Land and Natural Resources in April 2019, a BLNR Board member told those of us present that Grove Farm and others selling State water without permit or lease needed to come before the Board with proper application if they intended to continue selling State water. Last year when we had the drinking water tested, we did find samples with aluminum in excess of the EPA safe limit. We learned from a water quality engineer that discolored water can represent the presence of aluminum.

From correspondence between our County Water Department, Grove Farm and the State, we learned that the loss of the wastewater permit and the lack of a permit or lease for the diversion and sale of these waters remains an unresolved issue. Late in 2018, KDOW published a Notice of Environmental Assessment proposing to add 9000 feet of a new 18 inch main to increase the water capacity delivered from the Waiahi surface water treatment plant. We filed a comment objecting to KDOW’s failure to review the environmental impact to the waters source, State land and other streams. No review was conducted of an impact to the wildlife, native vegetation or to the traditional and cultural practices impacted by the additional draw from Kauai streams.

KDOW ignored our comment and said that they needed to only consider the impact to the reservoir and a few wells in the area but that evaluation failed to include any assessment of the endangered species that nest or have their habitat in the impacted area (Moorhen, Hawaiian Coot and Newcombe Snail among others). A complaint was filed. As mentioned in our last email, the Circuit Court Judge, Kathleen Watanabe, granted judgement for KDOW even though the County failed to introduce testimony in opposition to our expert testimony. The adverse judgement brings an end to the case unless we appeal. This email will serve as formal notice that we have decided to appeal. Hopefully, we can have your continued support as we pursue protection of our fresh water and an end to the unregulated diversion and damage to our fresh water streams. If you are able to make a charitable contribution, please visit FriendsofMahulepu.org. We are a 501(c)(3) organization and your support helps.

Mahalo nui loa,

Posted 7/10/2020: Community Input Works! Good news.  Bill 2774, to amend our current Housing Code and eliminate the affordable housing requirement has been deferred with Council member comments on the Bill’s need for more work reported in TGI yesterday. Thanks to all who commented on the Bill. As TGI reported, the comments made a difference.

A TGI article by Gary Hooser former State Senator and Councilmember on Wednesday, July 8th, the day the Council met, that explains why it is a bad idea for a total exemption from the need to build some affordable units in our Town Cores and R10 or denser developments (10 residential units per acre or more).

The 1100 unit mixed-use village is a separate development from Koloa Village. Once the 1100 units are approved, the density will be greater than R10 because of the number of units planed for a limited area.

The goal of the exemptions is a claimed need to incentivize developers to build multi-family units, where jobs, schools and infrastructure are located. The idea is to offer housing to the workforce where they can live near their work. Even with the exemption, however, Housing Director Adam Roversi admits that builders can not build at a price point workers can afford:

“The logic behind this recommendation is that these types of projects generally provide the most-affordable housing options, but they typically cannot be rented or sold at a price sufficient to subsidize the lower-income units as required under the current housing policy.”
So how will an exemption help the workforce get into workforce housing if builders can sell all units at market? For answers to this question and more, you may want to view the next County Council Candidate Forum Thursday, July 16, 2020 at 6 pm. Tune in to hear Council candidate’s solutions to this issue and others. The following candidates will be in the Forum:

• Addison Bulosan
• Donovan Cabebe
• Bernard Carvalho
• Felicia Cowden
• Mason Chock
• Mike Dandurand
• Billy DeCosta
• Deborah Desilva-Carveiro
• Luke Evslin
• Ed Justus
• Arryl Kaneshiro
• KipuKai KUALI’I
• Jakki Nelson
• Wally Nishimura
• Clint Yago

Have a great weekend. Feel free to share all our emails with family and friends.

Mahalo nui loa,

Posted 7/6/2020: Council to Act Wednesday – Help Needed! Hopefully you enjoyed a peaceful and healthy 4th of July holiday. We all united to preserve the South Shore of Kauai, saving it from the significant environmental threat of the proposed industrial dairy at Maha`ulepu. It was a nobrainer that our beautiful beaches and South Shore community would have been disastrously impacted. Now Grove Farm, in concert with KIUC, is diverting more than 40 million gallons daily from the East Wailua streams, including the most revered, Wai`ale`ale, to support the much needed water for growth in Lihue and elsewhere. As we learned during the dairy fight, the Grove Farm ditch system transports the water taken from Wai`ale`ale and its neighboring Wailua streams all the way to the Waita Reservoir in Maha`ulepu.

Now, Grove Farm’s project manager, Arryl Kaneshiro, our Council Chair, is offering a bill, Bill 2774, that, if passed by the Council, will exempt developers from the current requirement to preserve a percentage of multi-family units for workforce or affordable housing. Adding an 1100 unit mixed-use condo village at the corners of the Eastern bypass and Poipu Rd will no doubt have significant environmental consequences for the South Shore; drainage, increased waste water burden, Koloa/Poipu area population increase by nearly 30% and more cars on our already over burdened roads. When the South Kauai Community Action Committee met, Arryl pitched the 1100 mixed-use village as a source of “much needed workforce housing” for those working at the resorts and restaurants on the South Shore. We were told that is was being built right up to Poipu Rd. so its residents could walk to work. Now, with the proposed 10 year affordable housing exemption, none of those units will be “affordable” that close to the beach and a much loved visitor destination. Bill 2774 will be considered by the Council this Wednesday, July 8. Not much notice but, public comment may be made to [email protected] by 4 pm Tuesday. Help us to continue to protect the South Shore and preserve the affordable housing requirements of our current Housing Code. For more see Garden Island article yesterday: https://www.thegardenisland.com/2020/07/05/opinion/council-takes-aim-at-affordable-housing/

Please feel free to share our emails with friends and family.

Mahalo nui loa,

Posted 6/28/2020: KDOW Water Decision! On Tuesday June 23rd at 1:30PM, Judge Watanabe, 5th Circuit ruled against FOM and Kia`i Wai finding no material issue of fact sufficient to support our challenge of the Kauai Department of Water (KDOW) FEA FONSI (Final Environmental Assessment- Finding Of No Significant Impact). Our lawsuit was filed in 2018 because KDOW did not assess the impact to source, the stream waters that are diverted, which feed the reservoir that provides the water to their new 9,000 ft. 18″ main added for “increased transmission capacity”. The link to the following depicts the harm that our streams have suffered from unlawful diversions:
https://www.youtube.com/watch?v=f5Eroj8_bV0

The Judge declined to consider Hawaii Revised Statute (HRS) 171-58 which requires an environmental impact assessment before water is removed from State land streams. The link that follows is a recording of the entire hearing last Tuesday. You will hear Judge Watanabe say that HRS 171-58 is outside the scope of her consideration. She, at one point, questioned our attorney, Linda Paul, as to why we were just now raising HRS 171-58 to support our claim that KDOW’s environmental assessment was inaccurate. Ms. Paul had to remind the court that it was in our complaint and is not just being raised now. She also asked Ms. Paul how it was that the State Court could enforce the Statute, suggesting that was something for DLNR to do. Our attorney reminded the Court that every State agency is responsible for assuring the enforcement of the Hawaii Constitution’s Public Trust Doctrine that mandates each agency’s responsibility for protecting water. HRS 171-58 is one of the State Statutes enacted to assure the protection and preservation of fresh water. If our State court cannot enforce HRS 171-58, who can? In the Carmichael Maui Water Case, just argued to the State Supreme Court, the Circuit Judge and each of the Courts of Appeal had no problem enforcing HRS 171-58.

There is no dispute that the KDOW did not assess the environmental impact to the East Wailua Water Shed, whose water fills the Kapaia Reservoir. Their proposal to add 9,000 ft. of an 18″ main alongside 9,000 ft. of an existing 16″ main, claiming they were doing so merely to address a pressure problem, defies common knowledge of the planned Rice Street and new Hanamaulu developments. As the attached declaration from Matt Rosener states, the KDOW EA does admit that the new line will “increase transmission capacity” and KDOW documents also establish their current plan to upgrade the Waiahi Surface Water Treatment Plant because they will be increasing the amount of water that is diverted from streams and delivered to KDOW for water delivery to the Lihue basin and as far as Kapaa. The attorney for KDOW denied there was any need to increase water capacity but KDOW’s own documents show otherwise. This dispute of a material fact fundamental to our lawsuit should have defeated the Summary Judgement Motion.

KDOW did not offer any sworn testimony and there was no testimony from any hydrologist to counter the expert opinions of Mr. Rosener. His opinions clearly contradicted the claims being made by KDOW’s attorney who claimed that they did not need to do an assessment of the source water because they weren’t going to be increasing the amount of water taken. Mr. Rosener actually calculated the increase in the water that will be drained by adding the additional 9,000 ft. of 18″ main. In 25 years of litigation experience, I have never had a Judge grant a Summary Judgement Motion where there was an opposing expert declaration filed without any declarations from the other side. The Court made no finding that there was any problem with Mr. Rosener’s credibly or qualifications.

Not only did the Judge decline to enforce 171-58 as to the environmental impact requirement, she also failed to enforce the statute’s wording that prohibits diverting State water without a permit or lease. At the hearing and in their motion KDOW said they can sell water to the more than 15,000 accounts serviced by the Waiahi Plant without permit or lease from the State.

Yet in January 2019, as the KDOW Manager’s report shows (page 68) the manager told the Water Board that he couldn’t recommend purchasing the Waiahi Surface Water Treatment Plant because he could find no permit, lease or right by Grove Farm for the water being sold to Kauai residents. The State is not being paid for any of the water being pulled off the East Wailua watershed and there is no permit or lease for the sale of this water. As the Judge was unwilling to enforce the statute, she denied our claim on that ground as well.

The Manager’s report has a copy of the 2004 agreement where KDOW has paid Grove Farm more than $2 million a year for water in addition to reimbursing Grove Farm for their cost of maintenance and electricity to operate the plant. This cost is passed onto the Kauai water users and our rates have increased more than 100% since 2015.

Audio for KDOW Water Case Hearing before Judge Watanabe – 6/23/2020
https://drive.google.com/file/d/1gy0hyS7sAlAziTZzB8yW0gviISKGu6r2/view?usp=sharing

At 2 board meetings, BLNR board members discussed their concern that there was no lease or permit for the diverted State stream and ground water that Grove Farm and KDOW were selling to commercial and residential users on Kauai:

BLNR meeting 12/14/2018
https://drive.google.com/file/d/1R3gb_vmQoD3E7jOwuoW2V1d-Fl2Nt8x0/view

Listen from 2 hours to 3 for Board member remarks

BLNR meeting 4/26/2019
http://files.hawaii.gov/dlnr/meeting/audio/Audio-LNR-190426-2.MP3

Listen from 1.00 regarding the need to have a permit or lease from the State before selling State water.

link to FEA/FONSI
http://oeqc2.doh.hawaii.gov/EA_EIS_Library/2018-03-23-KA-FEA-Kapaia-Cane-Haul-Road-Main.pdf

Mahalo nui loa,

Posted 6/22/2020: Hearing Tomorrow! The hearing tomorrow at 1:30 pm before Judge Watanabe on our water case will not be open to the public. The attorneys will appear before the court via teleconference and we are hoping to have a recording made that will be sent to you so you can hear what happened. The court may not rule and may just receive the arguments of counsel. As you may recall, the issue deals with Kauai Department of Water’s sale of State stream water to more than 15,000 residential and commercial costumers without permit or lease from the State. Kauai Department of Water pays Grove Farm, who doesn’t own the water, paying more than $2.4 million a year in addition to covering all the costs of electricity and maintenance for the Grove Farm surface water treatment plant at Waiahi. This continues to be done without any EIS and with a woefully inadequate EA which we are challenging.

We are still awaiting the Supreme Courts decision on the Maui water case, Carmichael.

Stay safe out there and, as always, feel free to share our emails.

Mahalo nui loa,

Posted 6/11/2020: We Do Make a Difference! As you know, FOM continues its work to the protect and preserve our fresh water and Kauai’s environment. We wanted to share news of FOM’s recent $15,000 donation to Surfrider Kauai, another community organization doing great work to keep our streams and ocean clean and safe. The results of Surfrider’s water quality testing were very instrumental in furthering FOM’s successful work in stopping the industrial dairy farm proposed for Maha`ulepu, just 6/10ths of a mile upstream from that beautiful coastline.

Another environmental friend doing great work is Carroll Cox of Envirowatch on Oahu. You may recall that Carroll gave FOM a lot of airtime on his weekly radio program that greatly assisted in informing the public about the detriments of an industrial dairy at Maha`ulepu. Carroll’s work is often featured on the nightly news as it was last night when Hawaii News Now reported on the rare and wonderful find of at least 13 green sea turtle nests on Bellow’s Beach on Oahu. This is a first and pretty exciting as it is rare to find more than one nest of this endangered and beautiful sea turtle. Until Carroll’s involvement, however, the County and City of Honolulu wasn’t doing much to protect these nests. Read below to see what Carroll accomplished.

Carroll has spent a good deal of time protecting the environment both as a Federal officer with the US Forest Service and as an environmental activist since his retirement. Carroll recently sent us a link to a video he made of our local reefs and sea creatures to elevate our mood during this Covid time. Thanks Carroll for all the work you do for our environment.

https://www.youtube.com/watch?v=j9A6N0Bg2ok

Mahalo nui loa,

Posted 6/8/2020: Candidates Live Wednesday 6 pm! Hoping the email finds you well. A few news items to share with you:

1. The hearing on our water lawsuit is still set to proceed before Judge Watanabe 6/23/2020. We haven’t heard if there will be a zoom or other link to observe the argument. As you probably recall, the suit is based on the failure to do an EIS as required by Hawaii State Constitution and statutes. See the statute, 171-58, that prohibits diverting or taking stream or groundwater for any use without prior permit from the State and an EIS to assure adequate protection and preservation of our natural resources, especially water, as well as assuring adequate protection of threatened or endangered plants and animals. Grove Farm diverts between 30-60 million gallons daily off the east Wailua watershed without any permit. KDOW is now selling water, processed by Grove Farm at its surface water treatment facility, to more than 15,000 residential and commercial accounts without permit from the State and without an EIS as required by the attache statute. The defendant contend that our case should be dismissed. Our attorney is confident that this case will result in a favorable decision, if not at the district court, at the Hawaii Supreme Court.
2. No word yet from the State Supreme Court on the Carmichael case, the big water case on Maui.
3. On Wednesday, between 6 and 8:30 pm, you can watch a live forum with 14 candidates for Kauai County Council with a click of the following link: https://bit.ly/2z5FXfh See flyer for more details.
4. Recently, several nominees were selected by Governor Ige to serve on the Aha Moku Advisory Committee. Billy Kaohelauli`i, an FOM supporter from Poipu, has been nominated to be the island Po`o. Billy is and was a Board member responsible for the restoration of Kāneiolouma, the historic site right above Poipu Beach. When we were working to stop the dairy, Billy secured the help of many Hawaiian residents who supported our fight and filed a formal complaint with BLNR in his capacity as the Moku for the South Kona district. The strong support from the Hawaiian community objecting to the proposed industrial dairy helped us reach our ultimate victory. Recently, the Aha Moku system has come under attack as one of our Senators suggested that AMAC does nothing. In the response filed by the AMAC Executive Director, just the table of Issues addressed in 2019 makes it obvious that AMAC is very active throughout the State to assure preservation of natural and cultural resources. Your help is needed. Please take a few minutes to send an email of support confirming that Aha Moku is an asset to the people of Hawaii. Your email should be sent to: Sen. Kaiali’i Kahele, Chair of the Water and Land Committee, ([email protected]) with a cc to Senator Ronald Kouchi, Senate President, ([email protected]) and Senator Kahele’s aid Ikaika Mahoe, ([email protected]).

Mahalo nui loa,

Posted 5/11/2020: Justices Appear To Favor Water Rights. The oral argument before the Hawaii Supreme Court last Tuesday went well. Summer Sylva, attorney from Native Hawaiian Legal Corporation did a great job representing the Carmichael plaintiffs in their struggle to restore stream flow and end DLNR’s failure to follow State law that prohibits the unregulated diversions that have deprived taro farms of water, costing the residents thousands of acres of valuable agriculture. One of the more compelling aspects of the argument came when Ms. Sylva reminded the Court of how unacceptably long the struggle has been, so much so that many of the plaintiffs who were fighting for restoration of water to their taro farms have died waiting. Based on the questions from the Justices, the Court did not sound inclined to support the water diversion practices of A&B or their endorsement by the Department of Land and Natural Resources. We will update you once the Court files their decision.

As mentioned in our last email, we were invited to participate in the Environmental Council meeting to address the draft exemption list filed by Kauai Department of Water. The EC exemption committee expressed appreciation for our comments objecting to KDOW’s attempt to exempt certain actions from environmental review. The committee was unwilling to recommend KDOW’s list for approval and asked KDOW to amend the current wording before submitting another draft. If KDOW does so, we will be given another opportunity to comment. Public comments do work.

Mahalo,

Posted 5/3/2020: Watch Supreme Court Live – Water Rights Case. On Tuesday May 5 at 10 am the Hawaii Supreme Court will hear oral arguments on Carmichael, the important Maui water rights case. It will be live streamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts. See brief description of the Carmichael case.

Needless to say, we will be watching with great interest in view of the recent water rights case we have mounted on Kauai. The defendants in our case have once again asked the Court to delay hearing the pending Summary Judgement Motion. The last date given, May 12, 2020 at 1:30 has been continued to June 23 at 1:30 pm.

In a recent email, we shared a copy of the comment/complaint we filed with the Environmental Council in response to the Kauai Department of Water’s effort to exempt certain actions from an Environmental Review required by State Law. Some of the actions they are now attempting to exempt just happen to be the subject of our water lawsuit. Because of our comment/complaint, the Environmental Council invited us to join in their meeting as they consider KDOW’s draft exemption list. We will keep you posted on the outcome. Meanwhile, stay safe out there. Don’t leave home without your mask.

Feel free to share our emails.

Mahalo,

Posted 4/29/2020: US Supreme Court Decides Against Maui and For Clean Water Act Exciting news: The US Supreme Court ruled that counties, industries and others may not discharge/depose of waste into the ground to avoid the need to obtain a wastewater permit (NPDES – National Pollution Discharge Elimination System), a permit required whenever there is the potential for polluting waters of the US, a requirement of the federal Clean Water Act statute (CWA). That statute is enforceable everywhere in the US. In this case, Maui County was injecting wastewater into the ground without a permit because they felt that by putting it in the ground they weren’t putting into waters of the US (streams, rivers, ocean). In fact, because of our topography and ground waters runoff to the ocean, Surfrider Kauai, with others, was instrumental in helping environmentalists on Maui to prove that the wastewater from the injection wells was making its way to the ocean. Earthjustice successfully championed the case all the way to last Thursday’s victory in the US Supreme Court. Congratulations to Earthjustice.

The Supreme Court ruled Thursday that sewage plants and other industries cannot avoid environmental requirements under the CWA when they dispose of waste that takes an indirect route but ultimately reaches rivers, oceans and other navigable waterways.

Rejecting the Trump administration’s views, the justices held by a 6-3 vote (Justices Kavanaugh and Roberts siding with the majority) that the discharge of polluted water into the ground, rather than directly into nearby waterways, does not relieve an industry of complying with the Clean Water Act.

“We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge,” Justice Stephen Breyer wrote for the court.

The decision came in a closely watched case from Hawaii about whether a sewage treatment plant needs a federal permit when it sends wastewater deep underground, instead of discharging the flow directly into the Pacific Ocean. Studies found that Maui County wastewater soon reaches the ocean, also damaging a nearby coral reef. The Supreme Court’s decision follows:

https://www.supremecourt.gov/opinions/19pdf/18-260_5i36.pdf

There is little question that the current pandemic is raising awareness of societies impact on the environment. Hopefully, the high court’s ruling will bode well for the struggle to restore stream water to taro farmers on Maui when the Hawaii Supreme Court hears oral argument May 5 in the Carmichael case seeking to return sustainable agriculture to areas robbed by stream diversions. The decision will be released sometime after oral arguments. Our best wishes for Native Hawaiian Legal Corp and all the firms fighting for stream restoration and enforcement of the State’s Water Code.

KIUC Board Meeting Tomorrow/ you can attend by phone

On Kauai, KIUC diverts at least 40 million gallons daily (mgd) from Wai`ale`ale and other Wailua watershed streams to operate 2 100 year old hydro plants which, at full production can only generate approximately 1% of the island’s daily power need. Kauai also has mounted an effort to restore stream flow as more and more alternative energy sources come online lessening the need for such a massive diversion of water through an old 5 mile ditch system which the State studied and found it suffered from at least 20% loss. What will happen to our environment and the ocean’s need for fresh water if massive stream diversions are not stopped? KIUC Board usually meets the last Thursday of the month. Because of covid-19, the public can now attend by joining in a conference call that will allow us to listen in on mute. There is a meeting tomorrow at 1 pm. The phone and access number are listed below. If you check KIUC’s website in the future for the meeting agenda and wish to comment, comments are due by noon the day prior to the meeting.

Phone 808-451-3671 access code 434658342#

Mahalo,

Posted 4/23/2020: Watch Tonight 6:30 pm KGMB – Return the Waters. Tonight at 6:30pm KGMB will host a 30 min special program on the issues surrounding water diverted from Hawaii streams. This program previews what the Hawaii Supreme Court will hear in oral argument May 5, 2020, on the long-contested Carmichael v. BLNR and Alexander & Baldwin case over state water diversion permits in East Maui, see notice below.

FOM and Kia`i Wai `o Wai`ale`ale initiated a court action to challenge the legality of diversions taking water from Wai`ale`ale and Waikoko streams without any State permit or environmental review in violation of Hawaii Revised Statues (HRS) §§171-58 and 343. Our case is pending hearing before Judge Watanabe May 12 at 1:30pm.

Our case differs somewhat from Carmichael in that A&B has had a revocable permit for the millions of gallons diverted from East Maui streams. On Kauai we also have millions of gallons (at least 30 mgd) from the Wailua watershed with no permit whatsoever.

At 8pm tonight, on PBS, you may want to watch the 4 outer island mayors discussing their thoughts on when, if and how the islands should be reopened to visitors.

Stay safe out there and know that we are thinking of all our supporters.

Mahalo,

Posted 4/10/2020: Hearing Continued Again. A quick hello from our Covid-19 isolation. The hearing on our water case that was to be April 7 has been rescheduled for May 12 at 1:30pm. We still don’t know if the hearing will be in person or telephonic. We will keep you posted. Meanwhile, stay safe and be well. Keep your mask on when outside of the house and use frequent hand washing. Best regards.

Mahalo,

Posted 3/20/2020: What We Can Do! The corona virus is impacting our lives daily. Recently, we had a hearing scheduled for March 11, 2020 before Judge Watanabe in Lihue. The hearing was postponed until April 7 at 1:30 because the attorney for Kauai Department of Water, from a firm on Oahu, was ill. Since then, the Hawaii State Supreme Court has advised courts to conduct hearings telephonically, particularly when any of the attorneys would have to travel between islands. It is unlikely we will be able to attend. Rather, as soon as our attorney lets us know the result of the Summary Judgement hearing, we will let you know.

Friends of Maha`ulepu proved that a small group of concerned citizens can make a difference in protecting themselves and their environment. We have that opportunity once again. On behalf of your board of directors, we are very concerned about the State’s response to the corona virus. Our State Government officials should hear from as many as possible. Right now they are considering a plan to quarantine all incoming passengers to Hawaii. Kauai has 111 hospital beds, 9 of them ICU beds, and a total of 18 ventilators/respirators. Without visitors, our resident population is approximately 70,000. In my recent surgical experience, I developed a complication that required a second abdominal surgery three days after the initial surgery. Because I was rather ill, the surgeon wanted me taken from recovery to intensive care. There were no intensive care beds available. This was before the corona virus had hit Kauai. Our hospital beds and resources are already full. The excellent nursing staff on the fourth floor stepped up to provide me the intensive care I needed. The good news is I am on the mend and doing relatively well. Despite staff at Wilcox that are devoted to their work and really try to cover our needs, it is obvious that it would take very few corona patients to overwhelm our healthcare. Many could die.

The following are links and an email address to contact Governor Ige, Lieutenant Governor Josh Green, head of the Corona Advisory Task Force and our State Senator, Senate President Ronald D. Kouchi. Please let them know how you feel. A 14 day mandatory quarantine for all incoming with returning residents allowed to quarantine at home should be done at a minimum. With our extremely limited health resources, we must act.

Contact the Governor

Email the Lieutenant Governor

Senate President Ronald D. Kouchi [email protected]

Please feel free to share this email with your family, friends, and contacts.

Mahalo nui loa,

Posted 3/8/2020: Unlawful Taking of Our Fresh Water! Important court hearing Wednesday, March 11, 2020 at 1 pm before Judge Watanabe. Friends of Mahaulepu and Kia`i Wai `o Wai`ale`ale filed a lawsuit objecting to the increased off-stream use of State water without permit or proper environmental evaluation. The Kauai Department of Water (KDOW) has asked the court to grant summary judgment and end the case we filed.

Hopefully, if your schedule permits, you will be able to attend. As explained in the following, this is a very important issue involving the future sustainability of our fresh water. Can commercial users like Grove Farm continue their diversion and use of State water without permit or compliance with State statutes that mandate an evaluation of the environmental impact. Unfortunately, having just gone through two major abdominal surgeries, 2/21 and 2/24, I will not be well enough to attend but truly look forward to hearing from you if you are able to attend.

As you may recall, KDOW released plans to lay 9000 feet of an additional 18 inch main along side 9000 feet of an existing 16 inch main. The water delivery to these mains comes through a 12 inch segment from Grove Farm’s Waiahi surface water treatment plant (SWTP). In their required Environmental Assessment (EA), KDOW stated that the new 18 inch main was necessary to relieve pressure in the existing system but not to increase capacity of the water delivered. In their Reply brief they state it will allow for increased capacity. Despite their claim that the new line is to relieve pressure, there is no plan to remove the 12 inch line where the water initially traveled, which unquestionably delivers water to the 16 inch main under pressure. The public was given a comment period ending March 12, 2018.

Many of us commented because KDOW’s EA did not consider the stream sources of water delivered to the Kapaia Reservoir which are taken into the SWTP for delivery to the water transmission lines. The same day are comments were due, March 12, 2018, KDOW wrote their FEA FONSI (Final EA Finding Of No Significant Impact). Public comments included expert opinions from a hydrologist on Oahu, Andy Hood. A major objection to their FEA was KDOW’s failure to consider or evaluate impacts to the sources of the water in the reservoir. KDOW talked about the Kapaia Reservoir but never evaluated the streams or environmental habitats impacted by the waters diverted from 2 State streams, Wai`ale`ale and Waikoko, along with many others. In the process, there was never any justification for the failure to evaluate the impact to the stream sources of  waters diverted to the reservoir. Wai`ale`ale and Waikoko are State streams in a designated Conservation district. As such, HRS §343 mandates evaluation of off stream use of diverted waters.

When the FEA FONSI was prepared and dated the same day as many of the comments there was real doubt as to the ability of the engineers to even evaluate or consider comments filed. We were left with no alternative but to sue within 30 days of the published KDOW FEA FONSI. Now KDOW is trying to have our lawsuit terminated.

See our opposition to KDOW’s motion seeking final judgement in their favor. On page 29 of our opposition, there is an excellent declaration from North Shore hydrologist, Matt Rosener. Also see KDOW’s Reply brief in which they admit to a need to deliver more water to support the Grove Farm Lihue Master Development Plan while at the same time stating that adding 9000 feet of an 18 inch main has nothing to do with increasing capacity.

Mahalo,

Posted 2/4/2020: Warning Sign Removal a Danger to the Public!Keeping you in the loop. Maha`ulepu and the ongoing health risk to Kauai residents and visitors is still not being addressed by our State Department of Health (HDOH). As you read through the following emails, the serious bacterial contamination of our stream in an area right over the drinking water aquifer for all of Poipu and most of Koloa is unacceptable and continues to be dangerously high. How did HDOH respond? They took down the warning signs because Grove Farm didn’t like them not because the bacteria levels had fallen, the only statutory reason to remove the signs.

Please see our formal complaint filed with the EPA below.

Aloha Tulsi,
We wanted you to have a copy of the complaint recently lodged with the EPA. A copy has gone to Senator Mike Gabbard who is supporting SB2776, a bill to restore oversight to the Hawaii State Department of Health. As you and/or your staff review the following, you will understand why our community is very concerned about an inordinate risk to our residents and visitors here on Kauai.

Recently HDOH, without prior notice to any of the local residents, removed warning signs from a stream and beach at Maha`ulepu Kauai where the fecal indicator bacteria, enterococcus, continues to be chronically and outrageously elevated above 8,000, more than 200 times in excess of the minimum EPA and HDOH threshold of 35. The Hawaii Stream Study of 2012, authored by physicians at Stanford and U of H, determined that where fecal indicator bacteria levels are high, other harmful bacteria and viruses are almost always present, posing a risk to human health. With the recent outbreak of a new virus, the corona virus, one would hope that HDOH would operate from a position of caution rather than remove signs that warn the public of a seriously high bacteria risk.

——– Forwarded Message ——–
Subject: Formal Complaint
Date: Mon, 3 Feb 2020 17:05:50 -1000
From: Bridget Hammerquist <[email protected]>
Organization: Friend’s of Maha’ulepu
To: Tomas Torres <[email protected]>
CC: Sen. Mike Gabbard <[email protected]>, Rock Riggs <[email protected]>

Aloha Tomas,

On behalf of the 1500 members of Friends of Mahaulepu (FOM) and Kia`i Wai `o Wai`ale`ale please accept this as a formal complaint for the recent decision by HDOH to remove warning signs from Mahaulepu Beach and the mouth of the Waiopili, signs that HDOH was directed to post by the EPA after more than a year of weekly and monthly extremely high enterococcus counts confirmed by HDOH testing and Surfrider, Kauai Chapter Blue Water Task Force. See EPA-HDOH letter of 7/25/2016. As the geomean for the Waiopili Stream indicates, these chronic and exponentially high bacteria counts have persisted from March 2014 to present. So why have the signs been removed? Per HDOH’s own test results of the area, enterococcus was never detected above any threshold until 2011. That was the first reading above 1 and it was 254 bacteria forming units in 100 ml of water. Since March 2014, that number has increased exponentially. Why? What was new in Mahaulepu… a biosolids disposal operation and perhaps the more likely culprit, a wastewater disposal operation that began in 2006 into a pond over cindery soil. Google Earth pics from 2013-2014 captured the biosolids site and wastewater disposal pool. One of the Google Earth photos actually shows a wastewater disposal truck backed up to the pond where Aqua Engineers disposed of wastewater that they said was not able to be processed at any of their wastewater treatment plants. See email and correspondence from Aqua Engineers. Under the disposal site there is not only a high groundwater table but carst lava tubes that likely aid in the bacteria’s migration to the Waiopili. As the following facts demonstrate, it is unconscionable and a reckless disregard of the public’s health for HDOH to have removed the warning signs without conducting any test of the soil of ground water coming from this site, especially when 32.6% of the PhyloChip samples were found positive for human source in moderate or nominal quantity.

Several FOM members have called to complain about the removal of the signs. One of our members and the Hawaiian Moku for this area, Billy Kaohelauli`i called to report that he had seen a father with small children sitting in a pool on the sand formed by the Waiopili and its seeps just before it enters the ocean. Against the white sand, the grey murky foamy water evident 100 feet upstream, is no longer obvious and the water looks clean. Billy told the father about the bacteria in the water as his young baby was digging in the pool with his hands. The father took his children out and thanked Billy. Billy thought the signs were gone because of a recent high tide. Billy called HDOH and spoke to Gary Ueunten who explained that the signs were taken down by HDOH because Grove Farm didn’t like them and the PhyloChip study had concluded the water was safe because there was no human source for the bacteria present.

As the following link to the PhyloChip meeting and report of Dr. Dubrinsky demonstrates, nothing could be further from the truth. Dr. Dubrinsky was asked by Arryl Kaneshiro, Grove Farm manager and current County Council Chair, how to explain the risk to the public, Dr. Dubrinsky had stated that they were unable to identify the source for the high fecal bacteria found in the stream and he answered Mr. Kaneshiro by stating, “unless you can identify the source, you don’t know what the level of risk is.” 1:49:30 PhyloChip meeting https://www.youtube.com/watch?v=Ye0vr2bIJVU In fact, Dr. Dubrinsky had acknowledged earlier that, on review of his data, 32.6% of the samples tested “confirmed human source.” 1:07:50 PhyloChip meeting. At 26:10 of the video, we were informed that the PhyloChip study was not able to rule out human source as the source of enterococcus in the Mahaulepu watershed.

As you likely know, Dr. Dubrinsky and his associates developed the PhyloChip and proposed its use to identify the likely source of the fecal indicator bacteria. He conducted the test and selected the PhyloChip signal threshold that he believed would indicate a positive hit for human or animal source. Although aware of the 45 acre biosolids disposal site, which we learned after the PhyloChip meeting was also an untreated wastewater disposal site from 2006 – 2014, Dr. Dubrinsky said that that 45 acre site and its ground water were not tested as the sites to be tested were determined by HDOH.

So rather than test a site known to contain both partially treated and untreated human waste, a few hundred yards upstream from the Waiopili and Mahaulepu Beach, HDOH directed Dr. Dubrinsky to test 12 sites of the Waiopili and some sites along the Waikomo Stream, more than 2 miles west of the Waiopili and Mahaulepu Valley. There were residential cesspools in Koloa in the area of the Waikomo which someone at HDOH suggested might be the source for the bacteria that could have migrated underground via lava tubes to the Waiopili. Of note, they never determined that the Koloa cesspools were the source of the bacteria in the Waikomo and never found a connection between Waikomo and the Waiopili.

When HDOH conducted its Waiopili Sanitary Survey Part 1 from 2015-2016, their first effort to identify the source of the dangerously high bacteria found, they ignored data showing human factor in the enterococcus testing performed by Stanford labs, see a copy of that data to the HDOH Sanitary Survey report. The EPA was critical of HDOH for concluding that there was no human source in the bacteria found and for eliminating the biosolids site as a potential source, noting that the HDOH conclusions were contrary to their own data. See EPA letter of 7/25/2016. The EPA told HDOH that further evaluation of the biosolids waste site and area should be done before discounting a link between the human waste site and the chronically high bacteria found in the Waiopili seeps and stream.

After the EPA letter, HDOH announced they had received $100,000 from the EPA to conduct further testing, a PhyloChip study, to identify the source of the high fecal indicator bacteria in the Waiopili. A review of geomean for the water quality test results, chart below, demonstrates that even though other streams on Kauai have occasional high fecal bacteria counts, the geomean for the Waiopili Stream far exceeds the geomean for any other test site on Kauai. Why?? That was what the PhyloChip study was supposed to determine.

Unfortunately, the $100k was spent but, once again, there was no testing done of the 45 acre known human waste disposal site. Nor was there any testing done at the downstream portion of the Waiopili where seeps from somewhere in the Mahaulepu watershed bubble into the stream, a location tested regularly by Surfrider’s Blue Water Task Force which has detected extremely high concentrations of fecal indicator bacteria for more than five years. When the PhyloChip Study was finally released in May 2019, we learned that the samples for the study had been collected in fall 2016 and March 2017. It took more than 2 years for the study to be released, only to learn that no source was identified.

It was not until November 2019 that we learned an amazing piece of new information. Not only was there partially treated biosolids disposed of at Mahaulepu upstream from the Waiopili, but there was also untreated wastewater disposal in an evaporation pond that began in 2006. Local residents had followed wastewater pumping trucks into the biosolids disposal area and had seen the trucks put out hoses and unload liquid into what appeared to be a very large pond.

The public and local residents were unaware of any waste disposal operation in Mahauelpu. It was not until October 2014 when we learned that Aqua Engineers had a permit to dispose of 269 dry metric tons of waste in a 45 acre area leased from Grove farm in Mahaulepu. That information was shared with me and other FOM members who flew to Oahu for a meeting with Sina Pruder of HDOH to report what we thought was illegal wastewater dumping because we were already concerned about the anticipated 200,000 pounds of cow manure daily from a proposed dairy next to the Waiopili. Ms. Pruder told us then about the biosolids permits HDOH had given Aqua Engineers in 2003. We were assured that it was only biosolids and there was no wastewater pond despite what residents from the area had seen. We later searched Google Earth and found the pictures.

We now know, through emails released last year along with the Aqua Engineer’s letter, that there was not only biosolids from 2003 – 2014, but also untreated wastewater from 2006 – 2014 being disposed of in Mahaulepu, just a few hundred yards upstream of the Waiopili and Mahaulepu Beach.

Please respond to this email as soon as possible. The warning signs at Mahaulepu need to be restored. The risk to the public is real and until the source is identified there is no way to know how serious the risk is. Even Janet Hashimoto (EPA on assignment to HDOH) stated that with the bacteria levels reported, no one can say that the waters of the Waiopili are safe for bathing, wading or swimming. 50:45 PhyloChip meeting video.

Mahalo,

Posted 1/2/2020: Comments Due Midnight, Jan 7, 2020! An important reminder: If you are planning to comment on the KIUC Draft EA as part of KIUC’s application for a long term lease (65 years) of the waters from Wai`ale`ale and Waikoko Streams, all comments must be filed by midnight next Tuesday, January 7, 2020. If you filed a comment in response to one of the KIUC earlier notices, please resubmit your comment by email or mail to all of the three addresses listed below. The following is a link to the KIUC Draft EA which they filed with a AFONSI statement (Anticipated Finding of No Significant Impact). DLNR, the Department of Land and Natural Resources, is the agency tasked with deciding whether or not to approve the Draft EA.

http://oeqc2.doh.hawaii.gov/Doc_Library/2019-12-08-KA-Republished-DEA-Waiahi-Hydropower-Long-Term-Water-Lease.pdf

1 – Approving Agency – Department of Land and Natural Resources, State of Hawaiʻi
Ian Hirokawa,
(808) 587-0420,
[email protected]
1151 Punchbowl St., Room 220,
Honolulu, HI 96813

2 – Applicant – Kauai Island Utility Cooperative (KIUC)
Dawn Huff,
(360) 483-6488,
[email protected]
5362 Kumole St.,
Kapaʻa, Hl 96746

3 – Consultant – SSFM International, Inc.
Jennifer Scheffel,
(808) 375-6038,
[email protected]
99 Aupuni St., Suite 202,
Hilo, HI 96720

Our biggest objection to KIUC’s DEA is the fact that current State law requires an EIS, HRS 171-58. The water diverted, nearly 40 million gallons daily, is carried through a 5 mile ditch system before reaching either of the 2 Waiahi hydro power plants which at total capacity can only produce 1.5 megawatts of power daily. Meanwhile just one of KIUC’s other renewable power facilities produces 14 megawatts daily without any impact to the environment. The following is a link to a recent article that details all of KIUC’s many renewable resources and their ability to power the island without fuel, adding that hydro power represents a very small portion of their renewable portfolio. When KIUC CEO David Bissell was questioned by the Commission of Water Resource Management (CWRM) in August 2018  and asked what the cost impact would be to KIUC members if Wai`ale`ale and Waikoko diversions were discontinued, he answered that the cost impact to rate payers would be less than the cost of a cup of coffee per month.

https://pv-magazine-usa.com/2019/12/19/in-the-last-month-kauaii-has-been-100-renewably-powered-for-32-hours/

So why is KIUC wanting so much water diverted from the origin, never to return, for delivery to a distant watershed where the water is conveniently recaptured by Grove Farm? The letter below my signature from the Kauai Board of Realtors may answer this question. Early in the first week of December, Kauai realtors received the letter asking them to write comment of support for the KIUC Draft EA. The letter even provided their members with talking points. So, what do you think? Water for Grove Farms Lihue master plan and development of homes for the realtors to sell?

There has never been an EIS for the Wai`ale`ale and Waikoko (Blue hole) diversions. When water is diverted for commercial use from streams, HRS 171-58 requires and EIS and DLNR should accept nothing less from KIUC. FOM would appreciate receiving a copy of any comment you may file.

Please feel free to share this email with friends and family.

Mahalo,

Posted 12/10/2019: KIUC Required to Re-publish! Happy Holidays and Mahalo for the comments filed on or before December 9 for restoration of Lawai Stream flow, see FOM and Kia`i Wai’s comment. If you haven’t already shared the comment you filed, we would appreciate having a copy for our files.

FOM’s objection to KIUC’s last Notice was effective and we have more time to comment, lightening the load for December. As predicted, the November 25 OEQC re-publication of KIUC’s Draft EA was found inadequate. Instead of giving the public 30 days to comment as mandated by statute, the November Environmental Notice only gave the public 28 days and many of those days around critical holidays. So, on December 8, Notice was again republished for the KIUC Draft EA announcing their proposal to divert millions of gallons of water daily from Wai`ale`ale and Waikoko Streams under a 65 year State water lease. The public now has 30 days from December 8 making all comments due January 7, 2020.

When the second KIUC Notice was published on November 25th, the public was told that any comments filed on or before November 7th would be considered with other comments filed by the December 23rd published due date. FOM and Kia`i Wai `o Wai`ale`ale, however, objected to the fact that there was only 28 days in that comment period. Consequently a new republished Notice came out on December 8 and the new due date is on or before January 7, 2020 but no reference was made to whether comments already filed would be considered. In the interest of caution, please plan to refile, on or before January 7, 2020, any comment already made, making edits if desired.

KIUC may have made changes to their Draft EA in the new publication. The following link will take you to their most recently published 773 page Draft EA. If you plan to work on a comment or want to edit a comment already filed, please find see comments filed November 7 by FOM and Kia`i Wai, Earthjustice and Matt Rosener of North Shore Hydrological Services.

https://oeqc2.doh.hawaii.gov/Doc_Library/2019-12-08-KA-Republished-DEA-Waiahi-Hydropower-Long-Term-Water-Lease.pdf

It has been a good year for FOM and Kia`i Wai. On January 31, 2019, Hawaii Dairy Farms and Ulupono Initiative announced there would be “No Dairy on Kauai”. Via an article in TGI, their spokesperson announced that they would not be doing dairy anywhere in the State of Hawaii. In April, Big Island Dairy announced they were closing and removing the cows that had so badly contaminated O`okala and a major part of the Hamakua coast line. FOM introduced our lawyer, Charlie Tebbutt, to the residents of O`okala and shared our resources to fund and help them gather critical data proving the bacterial contamination of their streams and community.

At the end of April, FOM and Kia`i Wai celebrated with other environmental groups after winning a critical fight over House Bill 1326, Legislation that if passed, would have given water diverters a seven year exemption from the water code. Thanks to a mighty and well coordinated effort, FOM supported numerous trips to the legislature with representatives FOM assembled from Hawaii, Maui, Oahu and Kauai, all of which combined with other environmental groups and we “killed the bill”.

Also in April, FOM testified before the Land Board who reconfirmed their December ruling ending 100 years of 100% baseflow diversions of Wai`ale`ale and Waikoko Streams. The DLNR Land Board ruled that the KIUC operated Wai`ale`ale and Waikoko diversions had to assure a minimum flow of 4 million gallons daily in Wai`ale`ale Stream and 0.8 million gallons daily in Waikoko Stream. Now we’re fighting for Lawai Stream restoration and opposing KIUC’s proposed 65 year water lease which intends to divert more than 40 million gallons daily from Wai`ale`ale Stream while diverting all that water 5 miles to 2 small hydro-power plants that produce less than 1% of the island’s daily power need.

We wish you the best this holiday season. We are a 501(c)(3) non-profit organization and very much appreciate all the support we receive to protect the environment of Kauai. Please feel free to share all our emails with family and friends. It takes us all to keep Kauai, Kauai.

Mahalo nui loa,

Posted 12/3/2019: Help Protect Kauai’s Water! No question December is a busy month. One has to wonder why it is that officials put the close of public comment on many important issues in the month of December but the bottom line is we have two important comment periods about to close. Lawai Stream December 9 and KIUC 65 year long term lease on December 23. This email will address the Lawai Stream issue. Next week we will send more on the KIUC comment.

Lawai Stream is under study by the Commission on Water Resource Management (CWRM) for setting the Instream Flow Standard: Instream Flow Standard Assessment Reports for the
surface water hydrologic unit of Lāwa‘i (2050)
http://files.hawaii.gov/dlnr/cwrm/presentations/pp20191028.pdf

The State has set December 9 as the final date to submit comments in response to the proposed Instream Flow Standard (IFS) suggested in the above link.

Prior to a low rock wall dam diversion, later modified in 2013 with a bank to bank concrete dam diversion, Lawai Stream was one of Kauai’s more beautiful streams that watered the natural botanical gardens and nourished numerous taro patches. See photo below.

McBryde Sugar was responsible for a major alteration in the stream’s health and now the only water that enters Lawai Stream below the concrete dam come from an intake pipe with holes that are often blocked by mud and leafs as seen in the picture below. Bottom line, seven miles of Lawai Stream, between the dam and the ocean, are drying up and dying.

In preparation for testimony due December 9, you may want to listen to compelling testimony offered to CWRM representatives by many who attended the Oct 28 meeting in Lihue.

https://drive.google.com/open?id=1jvMl20xyKH9Pg3ct_6yjmU3Em4jaugqf

One of the strongest points made, that should be incorporated in everyone’s comment is the fact that the USGS (United States Geological Survey) is engaged in a study of “Low-Flow Characteristics for Streams in Southeast Kauai, Hawaii” which specifically includes a study of Lawai Stream. That study is not complete. Even the state hydrologist for CWRM, Ayron Strauch,  acknowledged that the USGS study had to be complete before “any action can be made by CWRM.” (Email below) The purpose of the USGS study is to determine how much water flows regularly in the stream above the dam diversion as basic data from which to determine a minimum instream flow standard for the stream below the dam. Now, without this information, which the State hydrologist also finds critical, the State is taking final comments December 9 on Lawai Stream even though the USGS work is not complete. For this reason, several who testified October 28 requested that no action be taken to set the instream flow standard until the required information is available. The State partnered with USGS on a study that has cost tax payers $759,000.00. The State should not now rush the process and act prematurely to help A&B secure water rights for a 20 acre fishing lake, golf course and ag use for its build out of Kukuiula Development in Poipu.

“Subject:           Re: Lawai River 6/11/18
Date:   Tue, 12 Jun 2018 12:58:42 +0000
From: Strauch, Ayron M <[email protected]>
To:      Ned Leone <[email protected]>, ‘Ned Leone’ <[email protected]>, ‘Hope Kallai” <[email protected]>, ‘Terrie Hayes’ <[email protected]>, ‘Branch Harmony’ <[email protected]>, ‘Kane Tiralde’ <[email protected]>, ‘Bridget Hammerquist’ <[email protected]>, ‘Don Heacock’ <[email protected]>, DaMate, Leimana K <[email protected]>

Aloha Ned,

Thanks for the update. I really appreciated getting to see the stream at your property. If you’re still willing, I hope to get a stream gage installed on Lawai Stream at your property in the coming months.

We are still waiting for the final USGS report to be completed in 2019 before any action can be made by CWRM. I will be back for stream measurements and to visit the stream near the botanical gardens later this year.

Mahalo,

Ayron
———————————–
Ayron M. Strauch, Ph. D.
Hydrologist, Commission on Water Resource Management
Department of Land and Natural Resources
State of Hawaii
1151 Punchbowl St. Rm 227
Honolulu, HI 96813
808-587-0265
[email protected]“

All comments filed should be sent no later than December 9 to any of the following addresses:

E-mail: [email protected]
Facsimile: (808) 587-0219
Mail: Commission on Water Resource Management
State Department of Land and Natural Resources
P.O. Box 621
Honolulu, Hawaii 96809

Mahalo nui loa,

Posted 11/26/2019: KIUC 65 Year Lease DEA Republished! As we mentioned in our last email, KIUC did have to re-submit their Draft EA for a 65 year lease and OEQC was responsible for republication of KIUC’s DEA-Waiahi-Hydropower-Long-Term-Water-Lease. When the OEQC sent out their Environmental Notice 11/23, they gave the public the wrong due date. Consequently, a corrected Environmental Notice was issue by OEQC yesterday, 11/25, informing the public that all comments would be due Dec. 23, 2019. That only gives the public 28 days in which to comment despite the statutory mandate that the public be given 30 days. On behalf of FOM and Kia`i Wai `o Wai`ale`ale we filed an objection to the error in yesterday’s “corrected” Notice, see email below the signature. Stay tuned as the Dec. 23 due date may change.

If you have already filed a comment, the corrected Notice did state that comments previously filed will be addressed. You are also entitled to modify/update your comment and refile on or before the new due date.

In our last email we attached the FOM/Kia`i Wai comment and the comment of our hydrologist, Matt Rosener. We recently received the comment filed by Earthjustice.

If you have not already commented on this important project application, please review the comments that we have shared and file your comment on or before Dec. 23 unless that date is change again.

Technology is moving at a rapid pace. Tying up the fresh waters of Wai`ale`ale and Waikoko for 65 years to be diverted for 5 miles through neighboring watersheds for hydro-plants that, at full capacity, are only able to produce 1% of the island power need is a tremendous environmental expense. The injury to Hawaiian practitioners, to native vegetation, to protected and endangered species is an extremely high price to pay for so little gain. As members of the KIUC Coop, we all have a right to demand that KIUC restore the natural flow of the streams, particularly in light of their new 20 Mega Watt Tesla battery back up solar power facility in Koloa and well as a 15 Mega Watt system at PMRF with even more planned alternative energy producing sources like the pump hydro soon to be built in Kekaha. If you have friends or family impacted by low flow in these streams, feel free to share this and the previous email, KIUC needs to hear from the public on how important it is to protect our fresh water.

Republished KIUC Draft EA:
https://hawaii.us4.list-manage.com/track/click?u=9767098a92149e9396bdccffd&id=5ffa1cd4e6&e=fb76585aa1

Have a wonderful Thanksgiving holiday.
Mahalo nui loa,

Bridget Hammerquist, President

Aloha,

Please accept this email as a formal objection to the improper Notice served on the public today, the “CORRECTED November 23, 2019 issue of The Environmental Notice”. When the Environmental Notice was published on Nov. 23 it failed to provide the public with the correct due date. That necessitated today’s Notice, however, today’s Notice only gives the public 28 days to respond despite a statutory requirement of 30 days, rendering today’s notice just as in need of a correction as the November 23 Environmental Notice was.

Today’s “CORRECTED” Environmental Notice only gives the public 28 days, depriving the public of 2 critical days to comment during a holiday season. Please take care of this error at your earliest convenience.
Mahalo nui loa,

Posted 11/4/2019: Pollution and Water Issues Continue

This email covers a lot of issues so I’ll try to be as succinct as possible.

1. As the latest Surfrider Blue Water Task Force testing below demonstrates the Waiopili remains outrageously polluted with fecal bacteria that pose a risk to human health.
2. DOH Director Bruce Anderson told the public in a July press release that the waters of the Waiopili were safe. Not true and we know more today than we did when HDF and Ulupono announced there would be no dairy on Kauai.
3. Recent documents obtained from DOH and EPA prove that there was not only a biosolids dumping operation at Mahaulepu from 2003 – 2014, but, in fact, there was also a wastewater “de-watering” operation there from 2006 – 2014. See attached documents. Of interest is that as recent as the fall of 2018 Grove Farm and Aqua Engineers were requesting a DOH acknowledgment that they had properly suspended the waste operations at Mahaulepu and were seeking a DOH release from any responsibility for same. In an email chain attached DOH declined to do so.
4. These new documents reveal that the waste operation at Mahaulepu was very much on the front burner of DOH through 2018. At the same time, DOH was conducting a $100,000 phylochip study purportedly to identify the likely cause of the ongoing high fecal bacteria counts in the Waiopili. Conveniently, the DOH phylochip study avoided any testing of or near the Mahaulepu waste site. Instead, they only sampled soil and water along the Waiopili as it flowed through the the proposed diary site to the ocean. EPA, in a letter to DOH, had told them that testing of the waste site was needed. However, the never before used phylochip study didn’t test or even mention the existence of a human biosolids waste site. Here is a link to the pylochip study meeting that took place in Lihue. The designer of the study could not explain why the biosolids waste site was not tested, only to say they tested where DOH directed them. https://www.youtube.com/watch?v=Ye0vr2bIJVU
5. Managing wastewater in the South Shore is an ongoing and growing problem with recent developments. Attached is a flyer for the final public meeting about a location for a new Koloa/Poipu Wastewater Treatment Facility at the Koloa Elementary School on 11/7 from 5:30-7pm. Under the guise of a USDA funded study to obtain public input, locations for open air modular wastewater units have been identified for the public. You might want to attend and be informed
6. Water and the unregulated diversions from streams on private lands was a big part of the October 2019 Land Board meeting. One of the Board members, Stan Roehrig, questioned DLNR’s failure to regulate private land owners and their continued diversion millions of gallons daily from our fresh water streams. His remarks were compelling and now he’s no longer on the Land Board,
   https://drive.google.com/open?id=14dCgpUwM9MrIxsIUftaktO7eV8nZeLj5 Audio – 2 parts
7. A reminder, KIUC is seeking a 65 year lease to continue its diversions of Wai`ale`ale and Waikoko Streams. They take more than 40 million gallons daily from the Wailua watershed, diverting the water 5 miles from the stream of origin to operate 2 old hydro power plants that produce less than 1% of the island daily power need. Comments on the KIUC Draft Environmental Assessment are due November 7, 2019 and must be filed with:
   1. Ian Hirokawa
      Department of Land and Natural Resources
      1151 Punchbowl St., Room 220
      Honolulu, Hawai‘i 96813
      [email protected]
   2. Jennifer Scheffel
      SSFM International, Inc.
      99 Aupuni St., Suite 202
      Hilo, Hawai‘i 96720
      [email protected]
   3. Dawn Huff
      Kauai Island Utility Cooperative
      5362 Kumole St.
      Kapaʻa, Hawai‘i 96746
      [email protected]
8. We are please to inform everyone, especially those who had their water tested, that the results from the latest testing were all within the safe drinking limits for Aluminum, new micro-pore filters are working and those drinking water from Grove Farm’s Surface Water Treatment Plant at Waiahi are now drinking water that tests far better than our initial finding.

Mahalo

Posted 8/8/2019: Who’s Protecting Hawaii’s Environment? On Kauai, KIUC just announced, at their annual Coop meeting 7/31, that they had filed an Environmental Assessment (EA) with the Department of Land and Natural Resources (DLNR) as what they claim is the necessary step to securing a new 65 year lease to continue operating 2 large dam diversions on Wai`ale`ale and Waikoko streams. Although the waters of Wai`ale`ale have been taken by KIUC, using 100% base flow diversion since 2001 with only a revocable permit, KIUC is finally moving to convert their RP seeking a 65 year lease. Kia`i Wai representatives testified before the Land Board in December 2018 voicing strong objection to the continued daily diversion of more than 40 million gallons of stream flow from the Wailua watershed to produce less than 2% of the island’s daily power production.

In testimony to the Commission of Water Resource Management (CWRM), KIUC CEO, David Bissell, admitted that it would make a single dollar digit difference in the rate payer’s monthly bill if the 100 year old generators relying on the steam’s water was taken offline, seriously begging the question for the need for the dam diversions and significant environmental impacts to the streams deprived of their natural flows. Not to mention the impact to downstream agricultural needs of the East Kauai Water Coop and its members.

The Dam diversions are on State land, in a Forest Reserve and are in an area of a designated protected habitat for more than one endangered species. These facts along with KIUC’s acceptance of the $60 million dollar Federal loan, mandate that an Environmental Impact Study (EIS), not EA, be preformed by KIUC before any lease can be issued by the State of Hawaii.

Thus far, the Office of Environmental Quality Control (OEQC), has not published notice of the KIUC EA and we are asking all our members to send an email and/or a letter to both the Land Board and OEQC asap. The purpose of your email is to object to the KIUC EA. Your email can state:

“As a KIUC Coop member, we were recently notified that KIUC had inappropriately filed an EA and I’m writing to ask the State not to accept this filling because KIUC’s water lease application is for a 65 year lease to divert State land streams in an area of endangered species and USGS protected habitat contrary to the State and Federal mandate for an Environmental Impact Study.” HRS §§171.58 and 343, HEPA and NEPA.

With your email to the following 2 addresses we hope to avoid publication of an EA and instead require KIUC to file an EIS as statutorily mandated: [email protected], [email protected].

If the State OEQC agrees to allow KIUC to proceed with an EA it would be a tragic injustice to the environment in an area that has never had any environmental impact study or environmental assessment of any kind.

Emails from as many as possible are needed because as TGI and the Star Advertiser recently reported:

“A scathing new audit of the state Department of Land and Natural Resources’ Land Division cannot be allowed to be go unheeded. Instead, it should be the start of acknowledging systemic problems, then lead to real improvements.”

It is evident from the following quote that even after receipt of the auditors official recommendations, the DLNR Director, Suzanne Case, questions the cost effectiveness of the need for a uniform policy and long term strategic plan while the Administrator of the Land Division, Russell Tsuji, claimed the recommended changes are unnecessary:

“Case told the auditor that DLNR would pursue, as recommended, development of a strategic plan covering lands under lease or revocable permit, as well as unencumbered lands that might be suitable for development — even as she questioned the cost-effectiveness of such a plan.”

“When asked about the lack of a long-range strategic plan, the Land Division administrator “does not see the necessity of such planning, explaining that the division’s focus and direction often change ‘on a dime,’ especially during changes in administration or board composition.”

7/6/2019
Editorial: DLNR must tighten fund management
https://www.staradvertiser.com/2019/07/06/editorial/our-view/editorial-dlnr-must-tighten-fund-management/

6/28/2019
Audit: DLNR mismanaged state land
https://www.thegardenisland.com/2019/06/28/hawaii-news/audit-dlnr-mismanaged-state-land/

A recent visit to Mauna Kea really drove home how ineffective our State is in managing the Environment of Hawaii. After hours of research in the DLNR file room on Oahu, including a careful review of the 1968 lease that granted U of H the right to manage lands the State holds in trust for Hawaiian descendants (Crown Lands), the disregard for the environment was appalling. When DLNR signed the 65 year lease to the University of Hawaii, they did so for the mere charge of $1/year. The State Constitution requires that any revenue from a State lease of Crown Lands be shared 50% to DLNR, 30% to the Department of Hawaiian Homelands (DHHL) and 20% to the Office of Hawaiian Affairs (OHA). The ridiculously low lease rate of $1/year has meant no real income to any of these 3 entities while U of H has received millions annually in rent from the 13 observatories already on the Mountain. Was this a way to enrich U of H while cheating the Hawaiians who struggle daily?

The documents I reviewed revealed numerous toxic spills on the mountain for which DLNR has put out requests for contractors to clean up mercury, lead, silver and a huge spill of a fire retardant, all of which will not disappear on their own over time and which threaten the large aquifers of pristine fresh water in the mountain. The Palila, an endangered endemic Hawaiian bird whose fluffy yellow feathers were used to make the royal Hawaiian capes and other ceremonial artifacts, lives on the mountain and the EIS done for the initial observatory/telescope construction specified that no construction could take place between late spring and 5-6 month after because of the Palila’s breeding and brooding. So, why where there large pieces of equipment ready to roll up there this past June? Why is the State or UH even allowing any more telescope construction when 5 of the 13 existing telescopes have been decommissioned and supposedly there is insufficient funding available for the cleanup and removal as required by their development agreements with UH.

For more information please visit the following sites. The first link informs visitors of the daily classes now being offered at their campus, Pu’uhonua o Pu’uhuluhulu Maunakea. During my recent visit I attended several classes and observed a rather large campus developed by the Hawaiians protecting MaunaKea. It was clean and populated by many young Hawaiians that greeted visitors warmly, introducing themselves and offering to orient anyone to the various services and education classes available. They have a large selection of foods and beverages available at no charge to anyone. The meals were hot and welcomed to those experiencing the beauty of the area and wide range of temperatures from warm sunshine to bitter cold depending on the time of day.

Musicians from all over the State are visiting daily and all the entertainment is free of charge as well. Beautiful chants and Hawaiian dances are preformed throughout the day. During the 3 ceremonial times of protocol, 8am, noon and 6pm, all are reminded of the code of conduct, kapualoha, that everyone anywhere on the mountain, except for the law enforcement standing around, are expected to follow: no alcohol, no smoking of any kind and no weapons even a ceremonial or traditional Hawaiian weapon. Those that have organized this campus are to be commended and it is well worth a visit if you have the time and ability.

Pu’uhonua o Pu’uhuluhulu Maunakea
https://www.facebook.com/puuhuluhulu/

Mauna kea litigation laws and politics
https://www.facebook.com/groups/MKPoliticsLawsLitigation/
Mauna Kea Testimony for Protection Mauna a Wakea
https://www.facebook.com/groups/MaunaKeaProtectionTestimony/

We are Mauna Kea
https://www.facebook.com/groups/WeAreMaunakea/

Stand for Mauna a Wakea
https://www.facebook.com/standformaunaawakea/

Pictures from TMT visit 7/30-7/31/2019
https://drive.google.com/open?id=1fozdlarCI9QxaBTgknHc3EQ0nSpb9M5y

Documents relating to TMT
https://drive.google.com/open?id=113TdvupT7oHIys4c9OhpE9xfiNTNba5q

Mahalo,

Posted 8/1/2019: Water Testing! We are arranging for water testing early next week. We were contacted by a few people when we first mentioned this in an email a few weeks ago, no need to repeat your request if you already contacted us. If anyone else from Puhi to Kealia would like to get their tap water tested, Monday or Tuesday next week, for FREE, please send us your contact information, phone and street address, so we can arrange the sample collections.

The link below contains all the documents produced by Kauai Department of Water in a request to produce documents on the discovery in the 18 inch main/environmental challenge case. See Complaint.

KDOW Discovery Docs
https://drive.google.com/open?id=1rT_B2YwMLEy1iIxjQdNVn0rMJ0aYqjJz

If you read through the attached Complain, you will know what our complaint is about. Just wanted to share the documents produced for those who might be interested. If you happen to review the documents and find anything important don’t hesitate to call, the more eyes on these documents the better.

Mahalo,

Posted 7/28/2019: Mon 5:30 pm Wastewater Treatment WHERE? Coincidental, or is it, just as the PhyloChip Study public meeting and release attempt to clear the waters of the Waiopili as safe, a new regional wastewater treatment plant may be in the offing for Maha`ulepu in the area of the Old Mill.
To learn more, come to the Koloa Elementary School Cafeteria tomorrow, Monday evening at 5:30 pm, see flyer.

Are the location and size of the new plant related to the recent release of the PhyloChip Study that took 2 years to complete from when the water samples were drawn and which has suggested that the persistent high counts of enterococcus do not represent a health risk? Even though that claim has been made, the authors of the PhyloChip acknowledged that there was no testing done of a 54 acre 11 year human bio-solid dumpsite near the Waiopili. The Berkeley Lab researcher, Eric Dubinsky did not explain why the bio-solid dumpsite was not tested to determine whether residual bacteria from the dumpsite have contaminated and persist in the dark, warm and damp underground conduits, lava tubes, connecting the ground water to the Waiopili. He agreed that the area could have been tested and a PhyloChip profile created to look for a match for the live bacteria still found in the Waiopili (see most recent results below – because of the dry season most streams on island had a drop in live bacteria while the Waiopili had a 98% increase):

“Wouldn’t it be prudent to sample the biosolids dump site,” said Bridget Hammerquist, with Friends of Mahaulepu, the group that worked to keep a dairy from setting up in the valley. “Our concern with all of this is the streams have been constantly elevated. Something is feeding it. Wouldn’t it make sense?”

The site was active for 11 years and 269 dry metric tons of waste was deposited there every year during that time.

Dubinsky said they did zero testing within the biosolids dumpsite and didn’t take samples from that area to calibrate their test. When asked whether DOH directed him to stay away from the site Dubinsky didn’t answer the question. Neither did the DOH representatives at the meeting.”

DOH explains water study, citizens concerned
https://www.thegardenisland.com/2019/07/27/hawaii-news/doh-explains-water-study-citizens-concerned/

There is an issue about whether the PhyloChip, a method not approved by the EPA, is effective. Are its results reliable? The following was stated in the PhyloChip Study:

“In the majority of samples, CP and ENT were unassociated with molecular evidence of fecal contamination, and thus the potential health risks indicated by these bacteria are likely overestimated if they are assumed to be fecal in origin. Conversely, a few samples with strong human fecal signatures and known wastewater origins, including samples from cesspools and wastewater injection wells, had unexpectedly low CP or ENT concentrations and were clearly
false negatives.”

During the public meeting, which was recorded and reported on by TGI, the Study author and developer of the PhyloChip instrument and methodology, stated in the first 30 minutes that, “We are not completely ruling out the presence of human contamination in the water.”

At 60 minutes into the meeting he said, “If it is a human source we want to know because it is the worst possible source you could have.” For more on the issues and reliability of the PhyloChip Study, attached are a couple recent articles from the Star Advertiser.

By way of background for the meeting tomorrow, Monday, here is a BOD, Basis of Design, for a Koloa-Poipu Regional Wastewater Treatment Plant prepared in 2008 and submitted to Sina Pruder, Wastewater Branch Chief who presenting at Monday’s meeting. The other presenter is from the R. M. Towill corporation, here is a link to their website, http://www.rmtowill.com.

The last link here is for the Final EIS which was accepted in 2009 and may or may not be valid for any current project because of the change in density for this area, http://oeqc2.doh.hawaii.gov/EA_EIS_Library/2009-12-08-KA-FEIS-Acceptance-Koloa-Poipu-Wastewater.pdf

Mahalo,

Posted 7/11/2019: Water Quality Matters! Throughout our fight to keep an industrial dairy from operating dangerously close to our drinking water and ocean, we were always concerned about the outrageous fecal bacteria counts in the Waiopili Stream.

The State DOH knew that they had granted permits to Aqua Engineers for 11 years (2003-2014) to use 54 acres of Grove Farm Maha`ulepu Valley land below the old mill as a human bio-solids dumpsite. DOH also knew that there was some fecal bacteria still in the waste that was spread on the land. They have never tested the ground water or soil below the site for bacteria. The nearby Waiopili Stream was found to have a significantly high fecal bacteria count when first tested by Surfrider Blue Water Task Force in March 2014. The State and EPA standards report water as contaminated if water quality tests reveal fecal bacteria in excess of 130 per 100 cc’s. There has not been any month since March 2014 when the fecal bacteria, enterrococcos, has been in range. Rather, the numbers have always been in the thousands, ranging from 4,000 to 27,000 fecal bacteria colony forming units in just over 3 ounces of water. Much of the time, the count detected in the Waiopili Stream exceeds all other test sites added together… chronically the most polluted body of water accessible to the public on island.

When DOH could not explain the source for the bacteria, they convinced the EPA to spend $100,000 on a “PhyloChip Study”. The PhyloChip had no track record for source determination but EPA felt it was worth a try… because DOH couldn’t imagine where all that fecal bacteria was coming from. The PhyloChip was used to test known sources of bacteria, like cesspools in the Koloa Poipu area. It was also used to test the Waiopili Stream. Unfortunately the test results were negative for human waste in the residential cesspools, where DOH knew there was human waste, and some of the samples from the Waiopili were positive and some were also negative. On review of pages 19-20 of the attached PhyloChip report, the authors recommend that further study is needed and express concern for the obvious false negative study results from the human cesspools tested.

DOH was more interested in assuring the public that the stream and the ocean where the stream drained was safe to swim in. Because FOM worked with Carroll Cox, Oahu environmentalist, on a request for documents from DOH, we were able to acquire a series of emails that showed DOH convinced the lab that produced the study to alter their findings and “soften” their conclusion… even thought the body of the report made it clear that the false negatives called into question every aspect of the study’s results. See entire email chain in the link that follows with pertinent comments highlighted.

https://drive.google.com/file/d/1y6h9HiriUXxV6_LO99Wh3YVGg1D5vB4s/view?fbclid=IwAR0e6E9MBEbGvtFwqGD4MO3nPYL4mtE7YJJu6ketlNlppyDm-7AK7FYAX4g

As you may recall, FOM objected, see link below, to this clear and unacceptable departure from scientific integrity. A fraud was committed on the public when they were told it was safe to swim in the Waiopili… if you follow the DOH recommendation, based on the PhyloChip results, it would be safe to swim in the cesspools tested.

Emails from DOH confirm PhyloChip study results ‘softened’
https://www.thegardenisland.com/2019/06/27/opinion/emails-from-doh-confirm-phylochip-study-results-softened/

Needless to say, we are seeking a retraction of the ridiculous article prompted by the DOH press release claiming the obviously contaminated waters were safe for swimming. Senator Mike Gabbard, who has over-site over DOH has scheduled a meeting for July 23 with FOM, Kauai Surfrider biologists and our Senate President, Ron Kouchi.

On another important water note, Grove Farm has been operating a surface water treatment plant (SWTP) in Waiahi since 2004. The SWTP receives water from the Kapaia reservoir, which when treated, is sold to the County for drinking water. The Problem: DOH correspondence with Grove Farm reveal a long standing and serious concern by DOH for the amount of free aluminum, a heavy metal, and other contaminates in the SWTP waste water. After many years of threats, DOH finally refused to renew the Grove Farm SWTP NPDES waste water permit in May 2016. Despite that fact, the State has allowed Grove Farm to continue selling the water they remove from the Kapaia Reservoir to the County for at least $2 million and now $2.4 million per year. The water to fill the reservoir is taken by KIUC and Grove Farm from streams fed by Wai`ale`ale in the Wailua watershed. FOM was very concerned after review of the DOH records, about the high levels of aluminum in the waste water. What’s in the drinking water sold by the County to 15,000 residents and businesses between Puhi and Kapaa? FOM sampled drinking water from homes and public sites with the help of Surfrider Kauai and the results all exceeded acceptable safe limits:

After receipt of these results obtained via ICP mass spectrometry, FOM has decided to conduct a larger sampling. Anyone between Puhi and Kapaa willing to have their drinking water tested, please send us an email asap so we can arrange for a coordinated date and time at no cost to you.

Finally, good news for West Kauai and the Surfrider Clean Water Act case, congratulations Earth Justice.

www.thegardenisland.com/2019/07/11/hawaii-news/judge-ocean-illegally-polluted/

Mahalo,

Posted 6/25/2019: Water Quality Issue! We should be able to rely on the Department of Health to protect us and at least give us honest information about the water quality in our streams and near shore water where we swim and wade. Sadly that is not the case.

Recent documents/emails released by DOH in response to a Freedom of Information Act request reveal that DOH had the Conclusions changed in the PhyloChip Study reported on by TGI June 6.

Emails release from DOH show that the initial reaction to the Study was “baffling and disturbing”, because the lab had tested cesspools, where human source was the known cause for the fecal bacteria and the PhyloChip was unable to confirm that the fecal bacteria it was testing was from humans. DOH persuaded the lab to change the report and “soften” their conclusion that the data showed clear evidence of “false negatives”. See the email chain between DOH and Berkeley Lab and guest commentary sent to the paper in response. It may not get published but I wanted to share this significantly disappointing and deceptive manipulation of data by DOH.

Water is life and we don’t want anyone getting sick.

Posted 5/2/2019: Success!!!! The Water Theft Bill is Dead! Thanks to a well directed effort on the part of our members, HAPA, Sierra Club, Maui Tomorrow, other organizations and individuals, HB1326 failed to become law. That bill would have relieved water diversion permit holders from compliance with a State statute that regulates the diversion of water for another seven years. 3 years ago ACT 126 was passed and water users received a 3 year holdover/extension on completing required environmental studies and other previsions of their lease application process. HB1326 was designed to extend ACT 126 an additional 7 years.

During the hearings it was evident that there were several large diverters, special interests, who wanted to continue to take the State’s water without disclosing the impact to the environment or the people of the State. After much testimony and hard work, we were successful in persuading the Senate that special interests legislation and a pass from following the law would violate the State Constitution and would not protect one of Hawaii’s most precious public trust resources, water. Please take the time to call Senate President Ron Kouchi, 808-586-6030, and Senator Kai Kahele, 808-586-6760, and thank them for their strong leadership. The pressure was great as multiple news coverage has reported. Alexander and Baldwin reportedly will have to rebate $62 million to the purchaser of 40+ thousand acres of A&B land on Maui now that the bill designed to give them a pass from following the law has failed. It is a great day for water and its preservation!

There are some who contend that the failure to pass HB1326 will cause small farmers on East Kauai to lose their water. If you want to understand how DLNR has fostered that concern, a concern that the Senators did not buy, here, here and here are the 3 testimonies offered by DLNR Chair, Suzanne Case. In the two testimonies filed when the bill was in the House, 2/8 and 2/20/2019, DLNR never suggested the bill had to be adopted in order for farmers to continue to get their water. There was no suggestion that the water RPs couldn’t be renewed. That changed April 2 and DLNRs testimony was filed late and was not convincing.

The AG and DLNR had 3 years to consider the consequence of the sunset of ACT 126 and has had 4 years but did not conclude Carmichael applied statewide to all water permits until April 2019. Contrived legal theory??

If necessary, Kia`i Wai and FOM will seek the support of our entire collective effort to rise up and protect the small farmers and underfunded water RP holders. There is no question that the groups who fought the water theft bill were successful. Thanks to all who gave such great testimony and who called Senators to encourage compliance with the law rather than offering another seven year pass from the law There truly is strength in the collective effort of our group.

The following is a link to an article today that details the magnitude of our victory after many years of struggle. All water users need to comply with the law.

5/2/2019
This Native Hawaiian Taro Farmer Has Been Fighting A&B For Decades
https://www.civilbeat.org/2019/05/this-native-hawaiian-taro-farmer-has-been-fighting-ab-for-decades/

Posted 4/22/2019: Has The Water Bill Drowned Yet? Just wanting to share two excellent analyses of the water bill which the Governor asked the Senate to resurrect last week. Nothing happened today and the bill, HB1326 HD2, wasn’t even mentioned on the Senate floor today. Stay tuned and we’ll keep you posted.

Posted 4/11/2019: Help Needed on Water, Good Results So Far. Our hard work has paid off with the legislature. Due to strong opposition, a bill (HB1326) designed to give stream diverters another 7 year pass from complying with State law has failed. There is speculation that some last ditch push will be made because one of the stream diverters (A&B) will lose $62 million if unsuccessful in obtaining an extension of their permits (RPs) to divert up to 450 million gallons daily from streams on Maui. The following link gives a comprehensive detailed account of the fight that’s been mounted at the legislature.

4/10/2019
Nothing Is Dead in the Land of the Zombies: The twisted legislative saga of the “Corporate Water Theft” Bill
https://mauitime.com/news/politics/nothing-is-dead-in-the-land-of-the-zombies-the-twisted-legislative-saga-of-the-corporate-water-theft-bill/

Here is a copy of the testimony submitted on behalf of FOM and Kia`i Wai o Wai`ale`ale. The following link is to the hearing where many of us testified. Strong testimony was offered by myself, Gary Hooser, Anne Fredrick, Hope Kallai, Noelani Josselin and at least a half dozen others from Kauai. Kia`i Wai testimony starts at approx. 2:14:00 mark. In the 40 mins prior, the Chair of DLNR, Suzanne Case, tried unsuccessfully to argue that HB1326 needed to be passed or current holders of revocable permits for water “may lose” their right to continue diverting water. There is noting in current law or the extension from 2016 that supports her clam and that was nicely exposed by Senator Kahele.

WTL and WAM Senate Hearing and Testimony 4/2/19
http://olelo.granicus.com/MediaPlayer.php?view_id=13&clip_id=71353

WTL and WAM Senate Hearing and vote 4/4/19 (approx 58 min)
http://olelo.granicus.com/MediaPlayer.php?view_id=46&clip_id=71381

Under State law a revocable permit to use State water has to be renewed each year. The statute calls for the RPs to be converted to leases. When a lease is created, the diverter will pay a fee and that fee will support the DLNR (Department of Land and Natural Resources), DHHL (Department of Hawaiian Homelands) and OHA (Office of Hawaiian Affairs). In 2016, the legislature passed a law that gave a 3 year extension to the one year revocable permits. That law ends this year, 2019. After these 3 years, DLNR, however, is still not prepared to issue water leases. In fact, only one lease applicant has completed the required environmental studies, HELCO on the Big Island.

As evident from Chair Case’s testimony, rather than comply with the law, her department has been advocating for a pass or exemption from following the law for another seven years which just happens to benefit KIUC and Grove Farm who sells diverted stream water to the County. Grove Farm also passes on the KIUC power bill for operation of the Waiahi surface water treatment plant to the County and and our water bill. Our water rates are some of the very highest in the State.

On Monday at 8:30am, Suzanne Case will be up for confirmation of her position as Director of DLNR, Chair of the Board of Land and Natural Resources (BLNR) and Chair of the Commission on Water Resource Management (CWRM). We encourage you to watch her testify before the Senate in the above links. DLNR has not done its job with her as Director. Her testimony attempted to support the confusion advanced by A&B on the water issue. Kia`i Wai and FOM will be opposing her confirmation. Please click here to email opposition or support(?) by 5pm Saturday to all 5 Senators on the Committee who will vote on her confirmation Monday at 8:30am.

Your voice makes a difference as evident from our success with HB1326.

Posted 4/1/2019: FRIENDS OF MAHA’ULEPU CELEBRATES! On March 17th at Po’ipu Beach pavilion, a celebration was enjoyed by the community who supported and worked hard for our success in defeating a dairy that would have all but destroyed our precious Maha’ulepu environment. View pictures of the event!

Posted 3/31/2019: URGENT! Testimony Needed The Good, The Bad and The Ugly. In the text that follows, you’ll see why we are asking for emails to be sent before 10am tomorrow to Senate Committees poised to hear 2 very important water bills. There is no resting on our laurels. We were worried about where the water would come from if the Waita was to give the dairy operation 3 million gallons daily. From that inquiry we learned that KIUC was pulling over 30 million gallons daily out of the Wailua watershed with diversions that took 100% of base flow. Some FOM members asked that we look into and help restore the dry stream beds that spanned anywhere from 100 yards up to a mile in one of the most beautiful streams on island. We got involved and this past December the Land Board ordered an end to a 100 year old practice of taking all of the base flows from 2 of our most revered streams, Wai`ale`ale and Waikoko. We’ve been up on the mountain several times since and KIUC has yet to comply. The Land Board has ordered KIUC and community groups to return and report on the status of those streams and KIUC’s take.

Bigger problem, in the course of working on this issue, one of the things that came to light is that KIUC is helping Grove Farm get the water after passing through KIUC’s hydro plants. Grove Farm takes the water without a permit or payment to the State, stores it in the Kapaia Reservoir and directs it to its Waiahi surface water treatment plant operational in 2004. At issue, neither KIUC nor Grove Farm has ever done environmental studies for this area. State law requires environmental studies for any commercial use of State water.

Unfortunately, without the environmental studies which includes public hearing and sharing information with the public, the high aluminum content from the bauxite in the soil in the Waiahi area remained unknown. Grove Farm does not have a valid permit from the State to divert. Now, we learned they lost their Surface Water Treatment Plant NPDES permit (permit to handle the wastewater), because of the excessive aluminum contamination in that water. The State document timeline also shows excess turbidity and other contaminates in excess of the amount allowed. The Department of Health refused to renew their NPDES permit in May 2016 and they have been unable to get another NPDES permit since.

People on Kauai have been asking about the “red water” coming out of their pipes. Before this past week we didn’t know why. People were told by KDOW and TGI reported that the water was ok to drink because it had been purified. Purification does not remove aluminum. In researching this further, we actually found Water Board minutes about Wilcox hospital patients adjusting to drinking “red water”. It doesn’t take much research to learn aluminum is particularly toxic for chemo patients, dialysis patents, the old and the very young and the agricultural crops they asked the State to let them dump it on. Thankfully, the State declined.

How despicable to give us toxic water rather than do an environmental study before starting a surface water treatment operation. This is particularly true because in Grove Farm’s own 2017 bid to CWRM for a liner, they admit that the presence of aluminum has been known because of companies who came between 1950 and 1960, proposing to mine aluminum in the very area of the reservoir. Instead, Grove Farm choose to produce bad water for which Grove Farm has been paid over $30 million by KDOW and us, the rate payers.

We need your help. There are 15,000 accounts receiving the water from Grove Farm’s aluminum laden Kapaia reservoir. Here’s the problem, Grove Farm takes water after KIUC diverts it under a revocable permit from the State and takes from other streams in the Wailua watershed and stores it over concentrated bauxite in the soil of the reservoir. No environmental studies have been done for KIUC’s take or Grove Farm’s unpermitted use. Had those studies been done as required, the heavy aluminum/bauxite concentration in the soil of the earthen reservoir should have been detected.

Grove Farm does not have any permit from the State to take and now they have no permit to dispose of the aluminum laden water. When they deliver the water to the County, they treat it for bacteria and microbes. We can’t find that they test the County water for aluminum but we do know the waste water from their treatment plant has for years had as much as 10 times more than the allowed level of aluminum.

Please submit an email with brief testimony to each of the following links before 10am tomorrow. In the subject of your emails, it is helpful to say, “Oppose the Bill”. When you click the following links, you will see the agenda for each bill. Below the agenda is a link “submit testimony” click to open and submit testimony. Please feel free to remove the suggested testimony and write your own brief statement as your own words are better. In the body of your brief testimonies, please add your personal comment to your plea that the Senate Committee members vote NO on both HB1326 and HB1171. These bills will be heard at 10:45 am Tuesday. Each bill extends the time to comply with environmental studies required under the law.  How many more will suffer so corporations don’t have to spend the money they should to operate their businesses safely in Hawaii.

We’ve done good work but there is more to do to keep our water safe. The following is a recent TGI article acknowledging FOM’s work. Our hui did good. Looking forward to your continued help.

3/31/2019
Hoping to heal Maha‘ulepu
https://www.thegardenisland.com/2019/03/31/hawaii-news/hoping-to-heal-mahaulepu/

Posted 3/19/2019: ‘Friends’ have good reason to party.  HDF, despite its best intentions, was fighting an uphill battle from day one. It never gained strong community support for this project, billed as a way to provide fresh milk for keiki and create a few jobs. The focus of its opposition was always on the threat to the environment this dairy represented and HDF couldn’t get shake that possibility. Read the article.

Posted 2/10/2019: It’s About The Water. We are all relieved that the cows won’t be coming to Maha`ulepu. As you can see from the Surfrider water quality results below, the Waiopili Stream at Maha`ulepu remains extremely polluted with fecal bacteria. Please avoid any contact with the Stream and don’t wade or swim in the ocean near the stream’s entrance.

It is well established that uninterrupted healthy/adequate stream flow is essential to clean stream and ocean water. Our work is not done. We will continue our mission for the health of the waters of Maha`ulepu and Kauai.

We can take comfort in Ulupono’s recent decision that an already very polluted waterway, the Waiopili Ditch and Stream will not be made worse by a large industrial herd of dairy cows. Look for an email soon and the announcement for a gathering at Poipu Beach where we can take time to celebrate our victory. Thanks for you support. Be sure to let us know if you did not receive and would like an acknowledgement of your donation for your 2018 tax return.

In case you missed it, there was a good letter to the editor about the ongoing pollution at Maha`ulepu by Carl Berg, PhD, who heads up the Surfrider, Kauai Chapter’s Blue Water Task Force:

2/6/2019
Give credit to Friends of Mahaulepu
https://www.thegardenisland.com/2019/02/06/opinion/letter-for-wednesday-february-6-2019/

Posted 2/1/2019: IT’S OFFICIAL!!! NO DAIRY FARM!!! Ulupono and HDF will not be operating their planned dairy at Maha`ulepu. Thank you all for the hard work and financial support. With your support, all Kauai and our South Shore has been spared. We plan and know that our work will continue as we strive to protect the fresh water and environment of Kauai. FOM was asked to respond to Amy Hennessey’s quotes in the Ulupono press release today, Read more.

Posted 1/25/2019: BIGGEST NEWS YET! Although Hawaii Dairy Farms has not made a statement to the press or others to our knowledge, we found a very interesting auction ending in the next 27 days.  It appears that Hawaii Dairy Farms may be selling it all!  We called the auction house and learned that the farm equipment is in Koloa. Photos even show a bumper sticker on the back of the truck that reads, “Pull For Milk.” While HDF has not formally announced the end of their planned industrial dairy for Maha`ulepu, we expect it will come within days if not hours.

Posted 1/10/2019: Recent news articles have made us cautiously optimistic that we may have good news in 2019. For those of us who live on Kaua`i, the tropical climate and rainy weather make obvious the island’s volcanic topography and natural drainage to the ocean. It all flows down hill. Add to that the clay soils of Maha`ulepu with poor absorption and increased risk for runoff left most very concerned about any land based animal waste operation. Pam and Pierre Omidyar likely thought they would be helping Kaua`i and the State by proposing an industrial for Kaua`i with more to follow on other islands. Our climate and topography has pretty well established that any large scale operation that deposits animal waste on the ground will result in animal waste in our streams and ocean because that is how these islands drain. Big Island Dairy is now slated to close because their waste cannot be contained and they are having regular releases of manure laden waste water into the gulch streams that drain through their property and run through O`okala on their way to the ocean. After four years of working to avoid contamination of our fresh and ocean waters, Ulupono is on the verge of making a good decision for Kaua`i and the health of our environment:

“Ulupono is now considering whether or not the Kauai dairy may be a good investment, said spokeswoman Amy Hennessey. There’s been no onsite work on the project in over a year, and Hennessey said Ulupono should come to a decision next month.”

Let’s all think good thoughts and pull for the Omidyars to do the right thing in 2019! We don’t need to repeat here what is happening on the Big Island.

Posted 8/1/2018: We can’t explain why Pam and Pierre Omidyar, Ulupono Initiative and Hawaii Dairy Farms fail to recognize the environmental and economic devastation that would befall Poipu and Kauai, if they are permitted to proceed with the industrial dairy they propose to operate at Maha`ulepu Kauai. In a very recent article in The Garden Island, Amy Hennessey is quoted to say that they are intent on developing their concentrated dairy at Maha`ulepu: Read article.

Posted 3/18/2018: FOM requested help from EPA when DOH refused to warn the public of the serious and significant fecal bacteria polluting the Waiopili Stream. In late July 2017, EPA told DOH that they “must” post appropriate warning signs. They also questioned DOH’d evaluation of the likely source, noting that DOH conclusions were unsupported by their own data. Finally, they admonished DOH to do more to determine the likely source of the pollution. To date, that has not been done.  Now, EPA has released the final list of impaired waters of the US and the Waiopili Stream is officially included on that list.

Posted 2/13/2018: Recent Surfrider research shows that the Waiopili is still outrageously contaminated with fecal bacteria. View report.

Posted 2/2/2018: FOM reached out to knowledgeable sources, universities and others to best understand and respond to HDF’s proposed industrial dairy at Maha`ulepu. Yesterday, we received a very detailed letter from Johns Hopkins University that was sent to DOH Director, Virginia Pressler and OEQC Director, Scott Glenn. The letter details the serious risks to public health and the environment posed by Hawaii Dairy Farms proposal.  Read the letter.

Posted 1/27/2018: Ulupono, Hawaii Dairy Farms and Grove Farm refuse to recognize why a proposed industrial dairy is not sustainable and why it would be irreparably harmful. Despite two separate court losses (one Federal and one State), the defendants publicly state their intent to proceed at Maha`ulepu. HDF now plans to amend HRS 343 directly to obtain a statutory exemption for their project. They have hired 3 well-known, connected lobbyists with the theme “We’re local ag, HRS 343 harms ag, so the state should support changing this law.” Although we anticipate a return of some funds from the successful Federal Court award for the attorney fees and costs FOM was forced to spend, it now appears we may need to mount another expensive effort as we protect Maha`ulepu. The cost to lobby the entire State Legislature, file another suit in State Environmental Court and prepare for State Supreme Court will be great. Please donate to defend Maha’ulepu!

Posted 12/26/2017: Our work and successes this year would not have been possible without the generous support of OUR MEMBERS. At the request of some donors, FOM has opened an account with Edward Jones to accept donation via stock transfers. If you WISH to take advantage of this 501(c)(3) option, please contact us for more information.

Posted 12/12/2017: Ulupono/HDF requested the Environmental Council (EC) TO allow developers to batch public comments submitted during an EIS process and permit the developer to respond to a comment they determined was representative of the batch. Two FOM Board members attended an EC meeting on Oahu 10/31 AND offered oral and written testimony to respond to the environmental regulation change proposed by Ulupono/HDF. Thus far, the EC has agreed that the environment is better served by requiring a developer to answer comments, point by point, if they are not a form letter. We felt the trip was very successful and we continue to remain engaged in the process of the States update of its Administrative Rules which the State adopts to comply with the Environmental Protection Act. Read FOM’s Comments/Testimonies. The entire EC thanked FOM for taking the time to participate and share why comment batching and batch responses by the developer are a bad idea.

Posted 12/10/2017: FOM attended a 2 day symposium sponsored by Omidyar’s Ulupono and Civil Beat. Oahu environmentalist Carroll Cox covered the symposium, highlighting Amy Hennessey’s comments on HDF’s EIS, which were not accurate. Basically, the symposium was suggesting ways to minimize public impact. View show.

Posted 11/14/2017: THE FEDERAL COURT AWARDED FOM $506,328.64 FINDING THEM THE PREVAILING PARTY, AKA THE WINNER! Much of the award will cover attorney fees and costs that our legal team agreed not to bill us for once they were quite sure we would win. We have no way of knowing when our legal team will receive the award. Clearly the Court has validated FOM’s work. Defendants may appeal the Court’s Order. View a copy of the 71 page Order and our Press Release.

Posted 9/18/2017: WAIOPILI STREAM TEST RESULTS STILL ABYSMALLY HIGH. Surfrider Kauai Blue Water Task Force water quality test results were recently released. The Waiopili Stream is, by far, the most contaminated stream on Kauai. We are still waiting for the DOH phylo chip study, an effort to determine the source of the ongoing chronic pollution and part 2 of the Sanitary Survey.

Posted 8/30/2017: SIGN PETITION TO PAM AND PIERRE OMIDYAR TO STOP DAIRY! We are hoping for over 6,000 signatures to our plea to stop the proposed industrial dairy at Maha’ulepu. Please sign our online petition to let our voices be heard!

Posted 8/14/2017: FRIENDS OF MAHA’ULEPU MAKES NEW YORK TIMES! The recent Times article, “EBay’s Founder Has a New Idea: Build a Dairy in Hawaii”, released 8/13/2017, balances many competing issues. When it comes to Kauai and our effort to preserve and protect a spectacularly beautiful coastline, home to some of the healthiest reefs in the State and many endangered or protected species, the article did not address some critical facts your readers may find interesting. A 35 foot vegetation buffer along the Waiopili Stream, that now collects all flow from Omidyar’s proposed dairy site, will not do anything to stop the manure that would drain into an extensive ditch network running through Omidyar’s pastures, emptying directly into the Waiopili via deep channel ditches as it flows to the ocean. There is no mention of the USDA NRCS study that found 80% of Omidyar’s acreage primarily clay soil. They concluded the site is at high or very high risk for runoff. Also missing is Omidyar’s withdrawal of his Final EIS after the Director of the Office of Environmental Quality Control (OEQC) recommended against DOH approval. Why is Omidyar willing to risk the health of such a beautiful environment when he has to import his herd’s feed and export the milk to another island for processing and packaging? If nothing else, the Times article unfortunately confirms Omidyar’s intent to proceed despite abundant evidence of serious harm that out weighs any benefit (pollution/contamination of ground water, drinking water and the ocean vs milk). Read the NY Times article.

Posted 6/5/2017: Friends of Maha’ulepu’s Federal Clean Water Act case against Hawai’i Dairy Farm, Ulupono Initiative and Maha’ulepu Farms has come to a successful conclusion! Judge Kobayashi ordered the entry of a Consent Judgement for Friends of Maha`ulepu. While HDF and has always maintained they did nothing wrong, nor violate the law, FOM’s decision to file the Clean Water Act case has been vindicated by the independent Comments filed by the US Department of Justice (DOJ) in FOM’s case. DOJ identified the Clean Water Act violations and concluded that the Consent Judgement does provide the necessary injunctive relief and financial payment to fund a Supplemental Environmental Project, instead of other civil penalties. View the Consent Judgement with its exhibits.

Posted 5/4/2017: Join Carroll Cox for an episode of Eyes on Hawaii with guests Genard Frazier from O`okala on the Big Island, and Bridget Hammerquist from Koloa, Kauai. They review and discuss the concerns members of the O`okala community have raised regarding the “significant” impact the Big Island Dairy has had on the community from untreated waste runoff. The Big Island Dairy is an industrial dairy operating up slope from the town. View Video.

Posted 4/29/2017: One driving force behind FOM has been the desire to preserve/protect our drinking water, the Waiopili and the ocean. FOM and Surfrider joined forces and filed a Petition with HDOH to list the Waiopili Stream as an impaired water body of the US and State. By filing the Petition and assuming the Waiopili was listed as impaired, that listing would then restrict permits issued to any operation with the potential to add additional pollutants. Once listed, no likelihood of an NPDES wastewater permit being issued in the area of the Waiopili. Due to chronic and consistent levels of significant pollution documented through water quality testing, the Waiopili is on the draft proposed list. Read the joint Comment filed by FOM and Surfrider with the expert input by the Law Offices of Charlie Tebbutt. Without help from so many, we would not have come this far. Please continue to keep FOM in mind and donate now to FOM’s tax deductible 501(c)(3) effort.

Posted 4/11/2017: STRIKE THREE? As of 10pm on April 5, HDF, Ulupono, and Mahaulepu Farms, all signed a Consent Decree that will be entered by Court Order prohibiting them from any further construction, development or ground-disturbing activities for the proposed industrial dairy operation. Read and enjoy FOM’s accomplishment by viewing our recent Press Release. Without help from so many, we would not have gotten this far. HDF plans on appealing the decision, so please continue to keep FOM in mind and donate now to FOM’s tax deductible 501(c)(3) effort.

Posted 3/23/2017: STRIKE TWO! On Tuesday, Judge Randal Valenciano revoked all developer permits and approvals for construction of a dairy at Maha’ulepu, pending an environmental assessment. The motion for summary judgment would require HDF to follow Hawaii Revised Statutes 343. The statute requires an environmental assessment at minimum and, possibly, an environmental impact statement. Without help from so many, we would not have gotten this far. HDF plans on appealing the decision, so please continue to keep FOM in mind and donate now to FOM’s tax deductible 501(c)(3) effort.

Posted 3/11/2017: Read more about HDF withdrawing their FEIS and view photos and videos of Maha’ulepu after recent heavy rains.

Posted 2/26/2017: MAJOR SETBACK! Hawaii Dairy Farms reported to media and the public that they withdrew their Final Environmental Impact Statement (FEIS) from Hawaii Department of Health to improve their FEIS answers to public and agency Comments. HDF’s decision to withdraw followed a finding by the director of the Office of Environmental Quality Control (OEQC) that their FEIS was so deficient he recommended DOH not accept HDF’s FEIS. Without help from so many, we would not have gotten this far. It’s going to be a fight so keep FOM in mind and donate now to FOM’s tax deductible 501(c)(3) effort.

Posted 2/26/2017: BIG NEWS! HDF withdrew their FEIS from the Department of Health. There is no longer any decision for Dr. Pressler to make on February 24th, 2017. HDF also withdrew their application for the required NPDES (National Pollution Discharge Elimination System) General Stormwater Construction permit. What does this all mean? We are taking heart from the Hawaii Administrative Rule, which indicates that the consequence of withdrawing their FEIS means that HDF has to start the process all over and file a new EIS, assuming they intend to re-submit a more complete study to overcome the deficiencies identified by the Director of the Office of Environmental Quality Control.

Posted 2/18/2017: STRIKE ONE! We received news that the state’s Office of Environmental Quality Control (OEQC) sent a recommendation of NON-ACCEPTANCE to the Department of Health (DOH) regarding Hawaii Dairy Farm’s Final Environmental Impact Statement. A final decision will be made on February 24th, 2017 by the Department of Health. Read OEQC Director, Scott Glenn’s recommendation against DOH acceptance of HDF’s FEIS. HDF has stated they are determined to proceed. Without help from so many, we would not have gotten this far. It’s going to be a fight so keep FOM in mind and donate now to FOM’s tax deductible 501(c)(3) effort.

Posted 2/17/2017: Our dairy fight is heating up! Last Thursday, Council member Derek Kawakami and Dee Morikawa decided to endorse the industrial dairy proposed for Maha`ulepu. Our District Representative, Dee, did say she was “a little concerned” about the location. Their endorsement, however, appeared to be based on misinformation. FOM responded! If you missed it in TGI, view the full page coverage, The Truth, printed 2/15/17.

Posted 2/11/2017: FOM Board members met with Senator Ronald Kouchi and his Chief of Staff on Oahu. We look forward to the Senator supporting our attorney’s demand of the Department of Health. We also testified before the Kauai County Planning Commission. Based on testimony received, the Kauai Planning Department requested that the Planning Commission defer any action on the Kauai County General Plan. This will allow the Planning Department to modify the plan, which will be submitted in the form of a new draft. A strong statement was submitted by the Koloa Community Association directed specifically to the preservation of Maha`ulepu. Read Statement.

Posted 2/11/2017: A strong formal response has been filed by FOM’s attorney, the Law Offices of Charles Tebbutt, with the Department of Health to support our demand that HDF’s FEIS be rejected. Read Response.

Posted 1/30/2017: NOW IS THE TIME! With the release of the Final EIS, Hawaii Dairy Farms intends on fighting Friends of Maha’ulepu, South Shore residents and all of Kauai, who oppose their industrial dairy. The only way to shut down this operation for good is to challenge any approval of HDF’s FEIS in the State Environmental Court and, if necessary, the State Supreme Court. We have only 60 DAYS from any approval to submit our challenge and it will take a significant amount of money. Now is the time to open your check books and send the largest possible tax-deductible donation to FOM.

Posted 1/25/2017: FOM was the featured guest topic for the first hour of the Carroll Cox show. Carroll called later to share that he received quite a few phone calls from concerned listeners. Listen to the show.

Posted 1/25/2017: Hawaii Dairy Farms Final EIS was filed with the State Department of Health on January 17, 2017. At best, it’s self serving since it only means that Group 70 International, the same company that prepared the dairy plan, is also filing the final part of their report claiming no significant environmental impact from the proposed industrial dairy operation. To date, there has been no independent engineering review of the Group 70 claims. You can and SHOULD send a written response if the dairy’s response to your Draft EIS Comment was “not satisfactory” or failed altogether to address your concerns. Our time is short! The recommendation will be either to “accept” or “reject” the EIS on or before February 10, 2017. We need financial help now more than ever as we marshal our experts and respond to the FEIS. READ MORE ON WHAT YOU CAN DO.

Posted 12/2/2016: COURT FINDS HAWAII DAIRY FARMS AND ULUPONO INITIATIVE VIOLATED FEDERAL CLEAN WATER ACT – Case against billionaire investor Pierre Omidyar’s flawed plan to go to trial. On December 1, the federal district court of Hawaii issued a decision finding that Hawaii Dairy Farms, Ulupono Initiative, LLC and Maha’ulepu Farm, LLC, owned by internet billionaires Pierre Omidyar and Steve Case, violated the federal clean water laws by beginning construction of a proposed 2,000-head dairy on the south shore of the Garden Island of Kauai without first obtaining proper construction permits. Read the full Press Release and the Summary Judgment.

Posted 11/13/2016: Read our recent letter to EPA Staff Members concerning FOM’s request that the Hawai’i Department of Health impose fines and deny Hawaii Dairy Farms (HDF) any NPDES permit. The letter includes photos that support Mr. Wong’s letter to HDF from Hawaii DOH, informing HDF that a Federal Stormwater NPDES permit is required to cover the site construction activities HDF planned. The photos clearly demonstrate the many ditches draining surface and groundwater from HDF’s proposed industrial dairy site where massive amounts of wet manure will be left sitting ready to flow as runoff to the Pacific Ocean.

Posted 11/2/2016: Read our recent letter/demand to Virginia Pressler, Director Hawaii State Department of Health. The letter includes photos demonstrating one of the large channel ditches, draining water from the site, less than 12 feet from one of HDF’s main cow raceways. That raceway, sloped for drainage, will collect wet manure and urine from the cattle which will drain to this and other extensive ditch networks on site. HDF seems to believe that the tall grasses, which have regrown between the raceway and ditch will be sufficient to contain the wet manure and urine falling from the initial 699 cows. Plans are for all waste to be left where it falls or sprayed back on to the property with either effluent spraying or pumping out of manure sludge solids from their effluent ponds. HDF acknowledges that “Surface waters draining the project site meet Waiopili Ditch, and will eventually reach the ocean.”

Posted 11/2/2016: View our photo essay demonstrating the many ditches draining surface and groundwater from HDF’s proposed industrial dairy site, showing the direct flow path to the Pacific Ocean. They support Mr. Wong’s letter to HDF from Hawaii DOH, informing HDF that a Federal Stormwater permit is required.

Posted 10/4/2016: AN URGENT REQUEST FOR YOUR KOKUA. As we await the Federal Court’s ruling on our Clean Water Act case, Friends of Maha’ulepu (FOM) must replenish its operating funds. Since April 2014, FOM has educated the public and responsible agencies on the devastation that would occur from HDF’s proposed industrial dairy at Maha`ulepu. Donations have covered the Clean Water Act case thus far. Critical data obtained from the site inspection, the foundation for FOM’s DEIS response, will also support and be used in the Clean Water Act and State court cases. The expert costs are paid, but we must raise at least $50,000 by October 31<sup>st</sup> to conclude the Clean Water Act case through trial. See how FOM has used previous donations to help save Maha’ulpeu. Please mail your tax deductible donation to Friends of Maha`ulepu, P.O.Box 1654, Koloa, HI 96756 or donate via our GO FUND ME website.

Posted 10/4/2016: DID YOU KNOW? Based on years of evaluating communities impacted by factory farming and related peer-reviewed publications, Dr. Kilpatrick, an expert in economic analysis focusing on complex real estate issues such as development and preservation, concluded that nearby residences to the proposed HDF industrial dairy could lose up to 88% OF THEIR CURRENT PROPERTY VALUE. Remaining residences in the South Shore would likely lose up to 50% OF CURRENT VALUE. DONATE NOW! We need your help to stop the desecration of Maha’ulepu and protect the South Shore’s quality of life and property values!

Posted 9/19/2016: Ten FOM members attended the Federal Court hearing before Judge Leslie E. Kobayashi on FOM’s Clean Water Act Complaint against Hawaii Dairy Farms. The Judge stated she was not inclined to grant Defendants Motion for Summary Judgement seeking to have FOM’s Clean Water Act case dismissed for lack of standing. She found Alan Faye’s declaration, filed by FOM, as support for standing and that his testimony qualified him as a lay expert witness. The Defendants’ attorney argued that the Court should throw out FOM’s case altogether. A trial date is currently set for February 2017. Read the Full Story.

Posted 9/19/2016: Fundraiser for Friends of Maha’ulepu! 100% of artist proceeds from the sale of Eileen Kechloian’s oil paintings will be donated to Friends of Maha’ulepu. Come enjoy wine, pupus, art & music on September 24th, 2016, 6-9pm at the Art House Gallery in Koloa (3440 Poipu Road), the little red house just one building from the gas station. You can go early for advanced viewing of Eileen’s new pieces. If unable to attend on 9/24/16 you may purchase the piece and retrieve it after the event. Come have a good time even, if you can’t find a piece that works for you. Hope to see you there!

Posted 9/19/2016: We’ve been hard at work for more than 2 years. Costs have been substantial and our bank account is now low, but it’s been worth the fight! We’ve kept HDF from operating their dairy at Maha`ulepu. Please mail your tax deductible donation to Friends of Maha`ulepu, P.O.Box 1654, Koloa, HI 96756 or donate via our Go Fund Me website.

Posted 8/24/2016: FOM filed a Federal Lawsuit 6/1/2015 which has progressed and received several favorable rulings from Judge Leslie T. Kobayashi. In 2/16, she issued an order allowing FOM site access to inspect the proposed dairy while conducting water quality and soil analysis. Based on evaluation and test results with consulted experts, it has been concluded there was evidence that HDF is, and has been, violating the Clean Water Act due to grubbing and digging on over 480 acres of the proposed site. On 7/1/2016, FOM asked that the Court enter a partial Summary Judgement on the pollution violations. If it is determined that there has been a breach of the Clean Water Act, HDF, and other named defendants can be fined up to $37,500/day. Read the Partial Summary Judgement and supported pleadings.

Posted 8/24/2016: FOM is excited about the upcoming hearing on September 12th before Judge Kobayashi, as the evidence is strong. We are inviting all members of the hui, who are able, to attend the oral argument at 10 am in the Federal District Court on Oahu. Let’s fill the courtroom and let Judge Kobayashi know how important this issue is for all of us.

Posted 8/16/2016: Department of Health has finally posted signs to warn the public of the serious bacterial pollution in the waters of the Waiopili at Maha’ulepu Beach. After two years of chronic exponentially high fecal bacteria levels, DOH failed to warn. With a mandate from the EPA and a further nudge from our very own Kauai Senator, Ron Kouchi, currently the President of the Hawaii State Senate. Read the letter he sent to DOH Director, Virginia Pressler, MD and Deputy Director, Keith Kawaoka, PhD.

Posted 8/16/2016: With the skilled offices of our attorney, Charlie Tebbutt, Esq., FOM filed an excellent Comment in response to HDF’s Draft EIS. The Comment, a 43 page document, details not only HDF’s extensive misstatements and inaccurate information, but the supporting documents prepared by a wide range of scientific experts confirms that the proposed industrial dairy operation at Maha’ulepu would be an environmental, ecological, archaeological, cultural, sociological and economic disaster for the island of Kauai. FOM’s entire formal comment can be accessed via Dropbox or Google Drive.

Posted 7/28/2016: Listen to FOM’s latest public service announcement with one of our members who actually suffered from an infection acquired in the ocean waters off the Waiopili. Listen now.

Posted 7/28/2016: EPA has concluded that warning signs must be posted on the Waiopili where it crosses the beach at Maha’ulepu. Bottom line, EPA agreed that what FOM did in May of 2016, in fact, should be done and must be done now. View letter written to DOH and read FOM’s Press Release.

Posted 7/6/2016: Listen to Friends of Maha’ulepu’s recent radio spots combined with beautiful footage created by one of our members! View now.

Posted 7/1/2016: Join Friends of Maha`ulepu and financial expert John Kilpatrick, PhD. on Thursday, July 14, 2016 at the Koloa Neighborhood Center. Learn more about the harm to our island, economy and property values and how you can help. View Flyer.

Posted 6/20/2016: HDF went to the public 2/15/15, insisting their dairy plan was safe and claiming they would prove it with a voluntarily EIS. When they filed their Draft EIS (DEIS) on 6/8/16, 18 months later, they did so without disclosing that HDF had first quietly delivered major dairy plan modifications to DOH Waste Water Branch Chief, Sina Pruder on 6/1/16. DOH announced and published the DEIS but no one told the public that the supposed safe dairy plan, had been changed! How safe was HDF’s plan, supposedly formulated over years, if 27 major modifications had to be slipped in 7 days before they submitted their DEIS?

Posted 6/20/2016: How safe is their Plan? Yes, they just rolled out a Draft EIS (DEIS) 6/8/16. Did the EIS tell the public that just 7 days before they quietly slipped in 27 changes to their Dairy Plan? Did FOM get any notice that HDF had filed a “Waste Management Plan Update” (WMP) with Sina Pruder, Waste Water Branch Chief and the person responsible for approving HDF’s dairy operation? No. HDF did not disclose or give the public any notice of the changes they are asking DOH to accept as they continue to seek approval to operate a large dairy at Maha’ulepu, Kauai. If it were not for the right questions being asked during depositions of the farm manager, Jim Garmatz, 6/14/16, none of us would have known that HDF had changed their plan: HDF WMP – Updates for Review. Exactly which plan is the public supposed to comment on during this 45 day comment period?

What can the public do to help? Call, write and demand that HDF withdraw its documents, resubmit a comprehensive Plan with all parts of the Plan in one document so the public can knowingly comment: Contact List.

Posted 6/8/2016: PLEASE HELP! Hawaii Dairy Farms has released their draft EIS. All responses are due 45 days from June 8, 2016. Responses must be post marked no later than July 25, 2016. Download or view the DEIS.

Posted 5/6/2016: Learn about corporate outsiders, their plans for Kaua‘i and the risks they may pose to our water, ‘aina and way of life. Hear Paul Cienfuegos, nationally renowned ‘Community Rights’ educator and organizer, will share information on what we can do now to protect our precious Kaua‘i from harmful industrial operations. You are invited to attend any of the five island wide community meetings. View the schedule.

Posted 3/9/2016: Judge Leslie Kobayashi issues Ruling in FOM’s Clean Water Case currently pending in Federal Court. In granting FOM the right to inspect the proposed dairy site, Judge Kobayashi clarifies that land owner, Grove Farm and tenant, Hawaii Dairy Farms, are incorrect in their contention they are no longer in violation of the Clean Water Act (CWA) because construction activities have been suspended. The Judge ruled once ditches, raceways or other conduits are created enabling debris run-off, soil, bacteria or other prohibited substances, the CWA violation continues though construction has concluded.

Posted 2/25/2016: Three FOM representatives flew to Oahu due to pending amendments to the Farm Bill which, if passed, would produce even greater difficulty to keep HDF’s dairy from operating at Maha’ulepu. Read More.

Posted 6/2/2015: Friends of Maha’ulepu has filed a Complaint in the Federal District Court for the District of Hawaii against the proposed Hawaii Dairy Farms mega-dairy for failure to obtain a required stormwater construction permit before beginning ground disturbing activities that will further degrade Waiopili Stream and the area of Gillin’s Beach. View Press Release.

Posted 5/20/2015: FOM has just been made the beneficiary of a $50K challenge, promising to match $ for $ all donations up to $50K. The donor has chosen to remain anonymous. Please donate now to help us reach our goal!

Posted 5/13/2015: Groups Petition State to Protect Kauai’s Most Polluted Stream – Waiopili Stream average results from all the stream water samples tested, for more than a year, were 275 times higher than permitted State limits View Press Release, Petition and Petition Exhibits.

Posted 5/11/2015: Friends of Maha’ulepu has served a Notice of Intent to Sue under the Federal Clean Water Act to Hawa’i’i Dairy Farms and Grove Farm. View the Notice of Intent to Sue and Press Release. Read more in The Garden Island article.

Posted 3/12/2015: Listen to Bridget Hammerquist, Jay Kechloian, and other Friends of Maha’ulepu members as they discuss the current status of the proposed large industrial dairy on the Carroll Cox Show. Listen to the broadcast.

Posted 3/9/2015: Friends of Maha’ulepu member, Jay Kechloian, has graciously agreed to match donations made between March 1st and May 15th, up to $100,000. Double your gift by giving now! Send donations to: Friends of Maha’ulepu , PO Box 1654, Koloa, Hi 96756 or online at GoFundMe. Read more about Jay’s matching donations on the front page of The Garden Isle.

Posted 3/1/2015: PLEASE HELP, MAKE YOUR VOICE HEARD! FINAL DAY TO SUBMIT PUBLIC COMMENT TO HAWAII DAIRY FARM’S EISPN proposed industrial dairy at Maha’ulepu. Learn how to submit your comments!

Posted 2/19/2015: Listen to Carroll Cox’s recent radio interview with Dr. Carl Berg of Surfriders Foundation, Kauai Chapter, and Bridget Hammerquist of Friends of Maha’ulepu concerning opposition to the proposed industrial dairy at Maha’ulepu.Listen to program.

Posted 12/16/2014: View Hawai’i News Now Exclusive – Opposition Mounting to Kaua’i Dairy Farm. View video and article.

Posted 12/12/2014: Friends of Maha‘ulepu will be hosting a community meeting and will be filmed by a news crew from KGMB. The meeting will be held on December 11th at the Koloa Community Center at 6:30 pm to provide updates and answer questions concerning the proposed industrial Hawai’i Dairy Farm. View flyer.

Posted 11/26/2014: Friends of Maha‘ulepu brought together experts in several fields to discuss the facts about the Hawaii Dairy Farm. Watch the video…

Posted 10/27/2014: You are invited to join Friends of Maha‘ulepu to learn about legal remedies concerning the proposed industrial dairy. Thursday, October 23, 2014, 6:30 PM at the Koloa Neighborhood Center Read more…

Posted 10/11/2014: WE NEED YOUR HELP! Please sign our online petition to oppose Hawaii Dairy Farms’ Industrial Dairy in Maha’ulepu, Kaua’i! Read more…

Posted 9/28/2014: Malama Maha’ulepu says ‘no’ to dairy proposal! Malama Maha’ulepu has announced its formal opposition to Hawaii Dairy Farms’ proposed dairy operation on 578 acres in Maha’ulepu Valley. The nonprofit organization says its decision comes after “months of careful scrutiny, research and deliberation.” Read more…

Posted 9/19/2014: A review of NRCS Custom Soil Resource Report for area of proposed dairy operation concluded that “data are in direct conflict with the Plan’s claims that soils are suitable for an intensive confined animal feeding operation and animal waste disposal with land application and irrigation of effluent…Surface runoff from this site will contain manure contaminants that will be conveyed to streams, wetlands and coastal waters.” Read more…

Posted 8/13/2014: Legal council for Kawailoa, Hawaii-based owner of the Grand Hyatt Kauai Resort & Spa, and the Poipu Bay Golf Course, submits powerful “Comment” document to the Department of Health concerning the legality and science behind HDF’s recent Waste Management Plan . Read more…

Posted 7/16/2014: Kawailoa, Hawaii-based owner of the Grand Hyatt Kauai Resort & Spa, and the Poipu Bay Golf Course, file suit to stop proposed dairy farm. Read more…