When the Hawaii Department of Land and Natural Resources was planning to dredge the Manoa Stream for flood control in 2016, agency officials identified numerous project activities in a document explaining why there was no need for an environmental assessment.

Among the activities were the removal of trees, rocks and sediment from the stream.

Conspicuously absent from the analysis, however, was part of the project that now has residents up in arms: a plan to temporarily store stream sludge in swimming pool-sized basins in a field adjacent to apartments for University of Hawaii faculty.

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“It’s outrageous, and it’s perplexing,” said Kieko Matteson, an environmental history professor whose apartment overlooks the field where DLNR is considering storing the sludge. “It seems duplicitous really.”

Hawaii’s environmental review law generally requires state agencies to conduct an environmental assessment when they engage in any of a wide range of actions. Any project within a shoreline area or Waikiki generally triggers the need for an assessment, for instance. So does the use of state lands.

The purpose of the law isn’t to stifle development but rather to let the public know about taxpayer-funded projects that might affect the environment.

The law and its administrative rules spell out activities that have such a minimal impact on the environment that there’s no need for an assessment, and allow agencies to obtain specific exemptions from the state Health Department’s Environmental Council.

That’s what DLNR’s chief engineer Carty Chang and director Suzanne Case cited in a document stating the dredging project was exempt from the state law generally requiring environmental assessments.

Chang said it wasn’t necessary to include the sludge basins in the exemption statement’s project description because the basins were incidental to the dredging project and because DLNR has obtained a permit from the state Department of Health for the basins.

“You have to do something with it,” Chang said of the sludge. “And that something is governed by the Department of Health.”

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But some legal experts question whether the DLNR exemption declaration is adequate.

David Kimo Frankel, a Honolulu lawyer who has handled a number of high-profile cases under the state law, questions Chang’s analysis.

“It’s not right,” said Frankel, who explained it doesn’t matter that DLNR has obtained a health department permit. “It’s still a use of state lands, and it’s an agency action.”

Andrea Freeman, a law professor at the University of Hawaii, William S. Richardson School of Law, took issue with the exemption document more broadly, questioning a statement in which DLNR asserts “this project will probably have minimal or no significant effect on the environment and is, therefore, exempt from the preparation of an environmental assessment.”

According to the document, DLNR’s plan is to dredge the stream some 40 feet upstream and 400 feet downstream of the Woodlawn Bridge near Manoa Marketplace.

The work also involves cutting stream-side trees in which federally protected endangered Hawaiian hoary bats are known to live. Contractors will allow the dredged slurry to “dewater” in the basins next to faculty housing before trucking it off to the PVT Land Co. landfill in Waianae.

Disputed Health Risks

The stream sediment is known to contain trace amounts of chlordane, a termite pesticide that is now banned.

However, university and state health officials say the amounts pose no health risks to residents either due to the dredging project or the dewatering pits. UH’s vice president for administration Jan Gouveia said at a meeting Monday that the chlordane levels “don’t rise to the level of toxic sludge.”

Still, Freeman said all of this points to the need for an environmental assessment.

“I don’t see any way to argue that there’s going to be minimal impact on the environment,” Freeman said.

“There’s the effect of cutting down all the trees and the effect on the endangered species,” she said. “There’s the entire ecosytem of the stream that’s going to be affected, in addition to the population of people who live there.”

Frankel noted under administrative rules, exemptions do not apply “when the cumulative impact of planned successive actions in the same place, over time, is significant.”

Whether the exemption statement is adequate ultimately would be up to the courts to decide, said Leslie Segundo, an environmental health specialist with the Hawaii Office of Environmental Quality Control, which administers the environmental review law.

Segundo noted that the environmental review law has been invoked in a number of high profile lawsuits, including the Hawaii Superferry case.

In that suit, the Department of Transportation said the project was exempt. But a state judge said DOT was wrong and required an environmental assessment, leading the ferry operator to shut down the project rather than conduct the study.

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The dredging project has become a major issue in Manoa.

Dan Meisenzahl, UH’s director of communications, said the project is essential to prevent flooding in the valley. A 2004 flood caused significant damage to nearby homes and university buildings.

“I think anyone who experienced the (2004) flood supports it,” Meisenzahl said of the dredging project.

On Monday night, Matteson hosted an informal meeting marked by a lively discussion between several dozen UH faculty and a number of state officials, including Chang, Gouveia and UH system chief financial officer Kalbert Young.

The Manoa Neighborhood Board has placed a presentation of the project on the agenda for its meeting Wednesday night.

In the meantime the board’s chairman, Dale Kobayashi, expressed concerns about DLNR’s exemption declaration.

“Having reviewed the exemption notification prepared by the DLNR for the stream project, it’s apparent that their rationale falls far short by not mentioning either the potential effects of the sludge pit or the use of state land to dry the sludge,” he said in a written statement.

“It’s really the same situation as with the Superferry in 2007.”

“I believe there’s a strong case that an environmental assessment needs to be performed on this project before it’s allowed to proceed,” he added.

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