This post is an ongoing conversation with EPA personnel regarding Kawaihae Harbor improvements.
I reviewed Section 404, as you mentioned only briefly. I also looked further into MPRSA Sections 102 and 103.
Please help us understand a few things as follows.
Section 404
Section 404 of the CWA provides for a permit program to regulate the discharge of dredged or fill material into waters of the United States.
- (a) The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
Section 404 states multiple times that the Secretary shall make determinations to issue permits after allowing opportunity for public hearings. In our case with the Kawaihae Harbor Improvements, how would the public know if HDOT-Harbors withheld any information regarding the coral reef it was built upon and surrounded by?
- Which federal (or state) agencies “are responsible for identifying any actions that affect the U.S. coral reef system” to inform and educate the public of the potential harm such harbor improvements cause to the corals?
- When will all responsible federal agencies make such public announcements and declarations, soon or after HDOT-Harbors, with all its funding procured, file for permits to destroy the corals?
- Or is this the responsibility of “identifying” rest on concerned individuals or NGOs?
Dredging, Fill, and Dumping
These terms are ubiquitous throughout the referenced Acts and are used when referring to protecting corals. However, I sought more specific language regarding the prohibition of planning or carrying out the dredging and destruction of corals and reefs. I understand these acts regulate and discourage parties wishing to discharge dredge, fill, or dump material onto corals and coral reefs by disapproving permits.
- What if the offending party (HDOT harbors) files a permit to dredge, fill, and dump the coral on artificial land where they have done so since 1959?
They have set an accepted precedent in the area described in their document as the coral flats. Over 93 acres of coral reef have been covered by dredged corals from the harbor basin and beyond to create those coral flats since 1959. According to the above Acts, this appears permitable. Again, the coral reef is not protected from destruction since the Acts above regulate the discharge of dredging, filling, and dumping.
- How are the coral reefs being protected from direct dredging?
- I may need clarification, but as an individual or the public, I need to figure out how the EPA can protect the corals in Kawaihae Harbor.
Protection for Coral Reefs under the Coastal Zone Management Act
Section 307(c)(1) of the Coastal Zone Management Act (CZMA) requires that activities a Federal agency conducts or supports that affect the coastal zone be consistent with the enforceable policies of the Federally-approved State coastal management plan to the maximum extent practicable. As a general matter, State coastal management plans for areas that include coral reefs, include specific provisions to ensure that these valuable ecosystems are not harmed. Consistent with the provisions of Section 307(c)(3) of the CZMA, the Corps will not issue any permits or authorizations under CWA Section 404, MPRSA Section 103, or RHA Section 10 that do not have a State CZMA consistency determination. Similarly, EPA will not designate an ocean dumping site under MPRSA Section 102 without meeting the requirements of the CZMA.
Protection for Coral Reefs under Corps Federal Projects
Although the Corps does not process and issue itself permits for the activities it conducts pursuant to Congressionally authorized projects (e.g., projects authorized under the Water Resources Development Act), the Corps must make findings that demonstrate compliance with the substantive requirements of relevant law. Among these laws are CWA Section 404, MPRSA Sections 102 and 103, RHA Section 10, and the Federally-approved State management plan under the Coastal Zone Management Act (CZMA), as appropriate. Therefore the Corps will implement the specific protections provided for coral reefs under the above statutes when undertaking Federal projects.
Corps regulations provide that the preferred alternative must be the least costly plan that meets the environmental standards established by the Section 404(b)(1) evaluation process or the ocean dumping criteria, as set forth in the National Economic Development Plan for new works projects (ER 1105-2-100) or as the Federal Standard for required maintenance dredging of existing projects. During the Corps’ project planning process, a national economic development objective is designed to maximize a project’s benefits while also remaining consistent with protecting the Nation’s environment.
The Corps must consider all practicable and reasonable alternatives for proposed discharges of dredged or fill material into waters of the U.S. or ocean waters, in identifying the least costly alternative consistent with engineering and environmental requirements. Specifically, the Corps is responsible under the National Environmental Policy Act for evaluating alternatives for the discharge of dredged material, including cost, technical feasibility, and potential environmental impact. Any potential impacts to coral reefs, and how these impacts can be avoided, should be documented in the Corps’ findings, consistent with the relevant environmental requirements.
These sections are the most relevant to our situation at Kawaihae Harbor. HDOT Kawaihae Harbor Phase 4 must not proceed.
My suggestion for some of the paths forward:
- To make HDOT-Harbors compliant with relevant laws, USACE must now participate in planning. They are not currently, since HDOT Kawaihae harbor’s plans have been as they have been since 2010.
- USACE must be involved now because the public and Congress are being deceived. We are federally funding projects culminating in destroying corals. This makes no sense to me.
- USACE must formally request that HDOT come up with options, thus starting over with their master plan for Kawaihae.
- Federal agencies EPA and USACE need to provide the public with a plan of action to protect this reef. They understand the process and have the means and methods to protect our resources. The public and I are under the assumption that all these federal agencies are working to protect our fragile environment.
- Can you protect our coral reef after we kindly warn you and ask for your protection?
In summary, we need affirmation that all the laws in place to protect the coral reef will, without a doubt, achieve that goal. This case with HDOT and Kawaihae Harbor is a good test of the system. It is very straightforward. There is a decade-long plan to destroy a reef despite all the laws in place. There is a blatant attempt to deceive the public and Congress to keep getting federal and state funding.
It is not comforting to know to stop this process, USACE has to disapprove the construction permit. Yet USACE, since 1959, has been responsible for almost wholly destroying the Kawaihae Coral Reef.
There have been too many foxes guarding our hen houses.
I apologize for such a long email. Our conversation is a means to educate myself and the public to prepare ourselves for the long road ahead to save a few things we love dearly.
I do appreciate your time. I am ignorant of all this, but I am an eager student. Happy Thanksgiving again.
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