December 26, 2018
COMMENTS OF KAIMANA BEACH COALITION AND JAMES J. BICKERTON
ON DRAFT EIS FOR PROPOSED PROJECT AT
WAIKIKI WAR MEMORIAL NATATORIUM
In my capacity as attorney for Kaimana Beach Coalition (“KBC”) submitting these comments in its behalf, and also in my own individual capacity, I James J. Bickerton, hereby these public comments on the Draft Environmental Impact Statement for the Waikiki War Memorial Complex concerning the War Memorial Beach option, as described in the DEIS (“beach option”), which KBC strongly supports, as well as the proposed action of the City and County of Honolulu with a 2500 seat stadium attached to a perimeter deck (“the stadium & deck option”), which KBC opposes. These comments are submitted in conformance with the requirements of chapter 343, Hawaii Revised Statutes, and chapter 11-200, Hawaii Administrative Rules.
BACKGROUND INFORMATION
KBC is an unincorporated community organization. KBC and its members have direct, substantial interests in the natural resources of the shoreline area proposed for the beach and stadium & deck options which are distinguishable from those of the general public. Established by Honolulu residents in 1990, KBC seeks to protect the area from commercialization and environmental degradation for present and future generations. KBC members live, work, and recreate in and around the shoreline area and rely on, use, or seek to use these resources for a host of uses related to ocean and beach recreation, including but not limited to swimming, snorkeling, surfing, sunbathing, and other forms of recreation, as well as aesthetic enjoyment. Sierra Club v. DOT, 115 Haw. 299 (Haw. 2007). Further, KBC and its members believe that the stadium & deck option will bring commercialization and environmental degradation to the shoreline area, and that CCH’s failure to follow through on its stated commitment to pursue the beach option will meaningfully harm the interests of KBC and its members.
James J. Bickerton is not only the attorney for KBC but is also an individual recreational user of Kaimana Beach, who has used the public parking, public beach access and public shoreline at Kaimana Beach for over 40 years, who continues to use it on a regular basis, and who expects that he and his children and their children will use it in the future for those purposes. Thus, in addition to submitting them on behalf of KBC, James J. Bickerton also submits these comments as his own individual comments.
INCORPORATION OF PRIOR COMMENTS
These comments incorporate by reference prior comments made KBC and its members and representatives in the Chapter 343 process for this matter. This includes, but is not necessarily limited to, the e-mail comments on the Final Environmental Assessment/EIS Preparation Notice submitted by KBC (Rick Bernstein) dated June 4, 2014, comments provided by KBC (Rick Bernstein and Jim Bickerton) as reflected in the “HRS 6E Focus Group Meeting Summary” dated June 27, 2016, and KBC information provided pursuant to and reflected in the Oct. 2018 Waikiki War Memorial Complex Cultural Impact Assessment.
EIS ADEQUACY
Based upon an initial review, it appears that the DEIS fails to adequately assess the environmental impacts of the stadium & deck option for purposes of compliance with Chapter 343. The DEIS must set forth sufficient information to enable the decision maker to make a reasoned decision after balancing harms and benefits and to make a reasoned choice among alternatives. Life of Land v. Ariyoshi, 59 Haw. 156 (Haw. 1978); Price v. Obayashi State Corp., 81 Haw. 171 (Haw. 1996). Acceptance by the accepting agency requires a formal determination that the DEIS adequately describes identifiable environmental impacts, and satisfactorily responds to comments received during the review of the statement. Haw. Rev. Stat. § 343-2.
ANALYSIS OF ACTUAL FUNCTION OF EACH PROPOSAL
Any environmental impact statement cannot only weigh the cost of its construction or the environmental impacts of its initial development alone. Instead, the actual function of the project and the uses to which is designed to be put must be analyzed. The stadium & deck option is the restoration of a 2500 seat stadium adjacent to a contained body of water (sea surface waves and swell are reduced or eliminated by the enclosure) bordered by a pool deck. In such a project one cannot focus solely on the pool function, but must also focus on the function of the stadium bleachers and the large number of seats they provide. If each facility is used in accordance with its designed function, then without a doubt, the 2500 seat bleachers will have a significantly different effect on the environment than the public beach park and sandy shoreline that is entailed in the beach option. The DEIS does not analyze how choosing a 2500 seat stadium as the design option will have different impacts on traffic, parking and public shoreline access than the beach option. Yet such an analysis must be central to any proper DEIS. This failing is even worse than we saw in the Superferry case, where the project proponents focused solely on the immediate physical effects of construction, rather than on the intended use and function of the ferry system and thus the environmental impacts that would follow long term from implementing a ferry system. [1]
If the bleachers are merely intended for decoration and will not be used for their designed function, there should be analysis of whether it is consistent with Chapter 343 to propose and construct a large 100-meter edifice on the shoreline that is simply to be looked at.
SEA LEVEL RISE
The DEIS fails to adequately assess sea level rise. The DEIS identifies SLR as an “unresolved issue.” DEIS at 6-2. The DEIS does not adequately discuss capital costs. The DEIS states that the capital cost for construction of the stadium & deck option “does not include structural adjustments for SLR.” DEIS at 3-23. Nor does the DEIS adequately discuss physical destruction of the Natatorium from SLR. The DEIS states only that SLR could increase to 3.2 feet by 2060 and “overtopping of the makai side of the pool would become more frequent, likely increasing the rate of damage to the structure.” DEIS at 4-49. In addition, the discussion of SLR impacts in the DEIS does not appear to comply with CCH’s “Sea Level Rise Guidance” (June 5, 2018). Recommendations under this guidance direct all CCH departments and agencies to use 3.2 feet of SLR in capital improvement decisions.
DOH POOL RULES
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COMMERCIAL ACTIVITIES
The stadium & deck option appears likely to foster commercial activities at the Natatorium. The DEIS fails to adequately assess the environmental impacts from commercial activities. The DEIS contains brief references to potential “income producing ventures” and events at the site, use of “floating docks” for “concerts,” and the potential for user or entrance fees. DEIS at 1-10 to 1-11. The DEIS fails to assess the environmental impacts from these and other anticipated commercial activities. For example, the DEIS asserts there would be no significant impact to transportation from the stadium & deck option. DEIS at 4-25. The validity of this determination cannot be known absent assessment of impacts from commercial activities. Similarly, the DEIS asserts there would be no significant noise impact from the stadium & deck option. DEIS at 4-29. This also cannot be known without assessing noise impacts from commercial activities. In addition, the DEIS also appears to improperly segment environmental review of the stadium & deck option from environmental review of the commercial activities that will come with the stadium & deck option. Haw. Admin. Rules § 11-200-7. It is no response to state that “plans have not yet been made for activities’ or “we don’t yet know what shape the activities will take.” Any project must have a proposed function. If the developers are too coy to state it (and even if they are not), any proper analysis must, as noted above, look at the capacity and capabilities of the design of each project and assume that those capacities will be used. Where a project’s main physical bulk is a 2500-seat stadium, it must be assumed that it will be used as a stadium.
WATER QUALITY
The DEIS appears to omit any discussion of either the impact on water quality of (1) the construction of the stadium and deck option or (2) the ongoing use of the facility as a public swimming venue. As to (1) it appears that there are nearly 100 years of anaerobic sedimentary silt on the bottom of the Natatorium and that the stadium and deck option contemplates that numerous piles will be driven into this sediment. There is no analysis of the impact of this construction activity on water quality in Waikiki or its impact on the adjacent marine habitat (which include intake waters for the Waikiki Aquarium).
As to (2) there is no analysis in the DEIS of the health impacts from bacteria-caused staph infections associated with use of the pool created by the stadium & deck option. The DEIS concludes that the stadium & deck option will cause beach closures due to sediment escaping the pool. Use of the pool will also cause increased turbidity and reduced water quality in the pool. DEIS at 4-60. The DEIS fails to adequately assess the risk to human health and safety from the sediment. In Carreira v. Territory, 40 Haw. 513 (1954), parents filed suit against the government for the drowning death of their son at the Natatorium.[2] The court noted that “it was impossible to see the bottom of the pool because the silt of the natural bottom was stirred up by the swimmers.” The DEIS does not assess the likelihood of similar adverse public health impacts from the stadium & deck option.
PUBLIC SHORELINE ACCESS
Each potential use eliminates others. A stadium being used as a stadium will eliminate or significantly reduce parking and beach access for users who wish to use the shoreline recreationally both at the Natatorium itself and in immediately available shoreline access areas. The stadium and deck option appears to have a main entrance and gate, with the bleachers serving as a barrier to shoreline access; access to the shoreline will be only through the narrow portal, if it is open. The DEIS has no analysis of the hours of operation of this facility and whether it will be open to the pubic for recreational use for all the same hours and all the same days as other adjacent shoreline areas, and fails to analyze the impact on public shoreline access of restoring rather than removing a large physical barrier to shoreline access. Chapter 343 and Chapters 205 and 205A all require analysis of these issues.
Moreover, the DEIS fails to properly or correctly weigh the value of a public beach and the concomitant public access to the shoreline that it provides, particularly given that the City has granted building permits for thousands of condominiums adjacent to the other heavily-used by local residents recreational shoreline in Honolulu — Ala Moana Park – thus already congesting and limiting local residents’ access to and use of the public shoreline in that area. The DEIS does not analyze how much shoreline access is being reduced in Honolulu already, even as population numbers increase, and thus fail completely to properly weight the impact of the stadium and deck option against a public beach option in terms of the impact on shoreline access for Honolulu residents.
MAINTENANCE ISSUES
The stadium and deck option describes a system of mesh or grids that would limit larger marine lifeforms entering the Natatorium but permit water exchange. There is no discussion in the DEIS of the technology for such a mesh system, the material it will be made of, whether it will serve as a matrix for the growth of marine organisms, whether there will be cleaning of the growth required and whether that cleaning and maintenance will involve any chemicals being used in the ocean. Given that earlier versions of this project also purported to be open the sea and to exchange water but ultimately failed when marine organisms (seaweed, algae, shellfish, moss, etc.) clogged the exchange openings, it is imperative that the long-term viability of the mesh system, and whether it will stimulate new organism growth and/or require cleaning or chemical treatment, (or will disintegrate and lead to pollution) should all have been considered, weighed and reported on.
EIS QUALITY AND FAIRNESS
An EIS draws its meaning from “the conscientious application of the EIS process as a whole, and shall not be merely a self-serving recitation of benefits and a rationalization of the proposed action.” Haw. Admin. Rules § 11-200-14. The DEIS too often deviates from this standard. For example, the DEIS states that beach option would result in the “permanent loss” of a historical landmark and the “removal” of a memorial. However, the beach option would be named the “War Memorial Beach” and it would retain the memorial stone, plaque and archway (and forego the 2500-seat bleachers). The DEIS also assesses the cost and environmental impacts of the beach option as including, in addition to the beach, the construction of a new administrative office on park land, which could be located not on park land and which could be budgeted separately from the beach option. Similarly, the DEIS ties the beach option to a new parking lot on park land, which also could be located elsewhere.
[1] In the Superferry case, the Hawaii Supreme Court held that “The exemption [from having to prepare an EIS] was erroneously granted as DOT considered only the physical improvements to Kahului harbor in isolation and did not consider the secondary impacts on the environment that may result from the use of the Hawaii Superferry in conjunction with the harbor improvements.” Sierra Club v. DOT, 115 Haw. 299, 343 (2007). While we at least have an EIS here, it is no less defective than an exemption ruling if it similarly fails to conduct the required analysis of secondary impacts from how the project will actually be used.
[2] Interestingly, the Natatorium sits on State land, which is merely under the City’s control because of an executive order by the Governor. The DEIS makes no analysis of whether the City is spending resources on land it does not own and that can be removed from its control with the stroke of pen, nor whether the City will actually have the ownership authority needed to mitigate environmental impacts.
Sincerely,
James J. Bickerton, Esq.
