As a longtime resident of Naalehu, I have been experiencing the same anger and frustration the protectors of Maunakea feel about the TMT project: I have been excluded from county and state government decisions regarding unwanted development in my backyard. Even Mayor Harry Kim’s current proposal to “restructure the management of the mountain” falls short of being inclusive because protectors pointed out he still lacked “meaningful engagement” with key stakeholders.
My concerns are with the county’s development of two Ka’u sewer projects, which were initially intended to replace the Naalehu and Pahala large capacity cesspools (LCCs) with large capacity septic systems in 2008. At the time, the cost of the LCC conversion was largely to be paid with a federal congressional grant with the county taxpayer only obligated to pay for a State Revolving Fund (CWSRF) loan of $1,507,214.
However, instead of this cost-effective method chosen by an overwhelming vote of LCC homeowners in both communities, the County of Hawaii Department of Environmental Management (DEM) Wastewater Division Chief Dora Beck chose to do a much more costly lagoon sewage system.
Thus, with no input from key stakeholders including anyone from Ka’u, the original taxpayer obligation to pay the SRF loan of $1,507,214 in 2007 ballooned to the current $72,050,000 in 2020 SRF loans DEM Director William Kucharski requested for Naalehu alone.
The current Naalehu and the Pahala sewage plant projects have never had a published supplemental or final environmental assessment since these major technology and siting changes occurred and DEM abandoned the original septic conversion plan that had received the final environmental assessment with a finding of no significant impact (“FEA/FONSI”) in 2007. The 2007 FEA/FONSI covered installation of large capacity septic tanks that emptied into the large capacity cesspool underground injection well.
The original FEA/FONSI was a result of community participation in the HRS 343 (so-called “HEPA”) environmental review process which included a vote by the affected Naalehu and Pahala households which selected the septic conversion of the LCC by 2008.
Then, for murky reasons, this democratically selected LCC closure project was abandoned and there has been no further public participation in any of the multiple DEM project development and County Council funding decisions made between 2008 and the present day.
From the moment the DEM decided, unilaterally, to separate the single Ka’u FEA plan into two wastewater treatment facilities and to move the Naalehu project to the area labelled on their subsequently published maps as the “WeatherFord site” TMK 9-5-012:005, there has been no seat at the table for any member of the public to participate in 12 years of DEM decision-making.
It is this Weatherford site that was the first of 32 sites DEM spent taxpayer money considering before arriving at placing the wastewater treatment plant adjacent to the Naalehu Elementary School. Enraged, I was forced to file suit in 2018 to try to get a so-called seat at the table, allowing me participation in the DEM sewage treatment projects’ environmental review process.
In my lawsuit, I argued that the legislative history of environmental review statutes (federal NEPA and the mirroring Hawaii State HEPA) is based on a two-fold function of these statutes: 1) “to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision-making along with economic and technical considerations,” and 2) when actions trigger an environmental assessment or environmental impact statement, this review process gives citizens a seat at the table to voice concerns regarding the environment. Congressional records state: “NEPA is a seminal statute because it is that one place that ensures a democratization of decision-making. It is that one instrument through which the public and state and local government have a seat at the table as decisions are made which affect them in a very real way.”
Under HEPA statutes, the Hawaii Supreme Court ruled that citizens have the right to be heard on environmental cases before governmental bodies. These due process requirements ensure citizens have the “opportunity to be heard at a meaningful time in a meaningful manner.” Providing further precedent, the U.S. Supreme Court held that “… public participation during the [environmental] review process benefits all parties involved and society as a whole.”
Based on 12 years of failing to provide environmental review to what DEM admits are major technology, location and timing changes to the original action which triggered the 2007 FEA, DEM now claim they have a right to wait even longer before including public participation in the environmental review process.
This is understandable given that director Bill Kucharski does not value any public input into the DEM’s already pre-made sewage facility development decisions and views the EA as a means for justification of their preferred decisions. In June 2018, he told the County Environmental Management Commission: “In an EA you come up with a preferred alternative, and that preferred alternative is what all of the environmental studies and impacts are centered around. And you have to go through a justification as to how you got to that preferred site. And that is the [environmental review] process.”
However, to the contrary, the HRS 343 legislative intent for early environmental review is clear, and DEM has been in violation of the HEPA statutes by evading publication of a revised EA which would allow for public comments as required by statute and Hawaii Supreme Court precedent.
The way it now stands, for the past 12 years the DEM makes uninformed decisions and then plans on using a future EA to justify these uninformed decisions.
This is not what the legislature envisioned. This is what I believe has caused the current anger in me and the protectors of Maunakea.
With this lawsuit, I hope protectors will finally be given “a seat at the table” before any county or state decisions are made.
Sandra Demoruelle is plaintiff in Demoruelle v. Beck et al., Case # 18-1-00206, HI Third Circuit Environmental Court.
