Posted on June 19, 2024
Maui County has nearly completed mapping wetlands across Maui, Molokai and Lanai in an effort to help mitigate flooding, control harmful runoff, enhance wildlife habitat, restore natural fire breaks and provide other benefits like sequestering carbon.
Over the last year, the Planning Department, Hawaii Sea Grant and consultant H.T. Harvey & Associates tried to determine which of the estimated 52,000 tracts of land across the county could be considered wetlands.
An overview and draft map were released and public comment was accepted through last Friday, although continued feedback is welcome, said Wesley Crile, a Sea Grant coastal dune restoration specialist who works on the project.
More than 20 property owners asked to have their land removed from the map, according to the Planning Department. They expressed fear over unintended consequences, red tape and diminished property values, concerns that environmental advocates say are likely overstated.
The mapping effort stems from a county ordinance adopted in 2022. Bill 91 was sponsored by former County Council member Kelly King who was alarmed by the diminishing amount of wetlands in Maui County.
The ordinance required creation of a wetlands inventory and map to be updated every five years in perpetuity. The law also authorizes the Maui County Council to create a Wetlands Overlay District, with zoning changes that could include protective buffers and grading and grubbing restrictions.
The Planning Department’s Greg Pfost gave an overview at a May 13 meeting of the Agriculture, Diversification, Environment and Public Transportation Committee. The county defines an overlay district as an area where certain additional requirements are superimposed on an underlying zoning district, such as conservation or agricultural districts.
Wetlands in Kihei, seen here after a storm, are being mapped by the county. (Courtesy: David Dorn/Save the Wetlands Hui)
An estimated 85% of wetlands worldwide have dried up, been filled or paved over between the 1700s and 2000, according to some global researchers.
It’s hard to pinpoint exactly how many acres of wetlands have been lost in Hawaii because there’s no comprehensive dataset. But in 1990, one study estimated that over 31% of Hawaii’s coastal wetlands were lost due to human activity. Another study in 2014 estimated that 7% of Maui island wetlands were lost between pre-settlement and current times with some areas, like Kihei, being harder hit by development.
King figured it was time to do something, to stop further loss of wetlands and to make Maui County more resilient to the effects of climate change, including increased drought and wildfires. A key part of her strategy was to change what defines a wetland.
What’s A Wetland?
Under the federal definition of a wetland, a parcel must meet three strict criteria regarding vegetation, soil and hydrology.
The Maui County ordinance lowers that bar, making it easier to protect and restore wetlands.
“What we did with our county ordinance is that we stipulated that it only had to meet two of the three requirements out of the recognition that there’s lots of wetlands that we have lost and just because a place is dry doesn’t mean it couldn’t be restored to a wetland,” King said in a recent interview.
It’s hard to overestimate the ecological value of wetlands. Scientists estimate some 40% of all species live and breed in wetlands, making them among the world’s most biodiverse places.
Wetlands include swamps, marshes, bogs, meadowlands and estuaries. They can also include streams and drainages that flow continuously with water or ones that only fill after rainfall.
The Laie wetland helps absorb and control the floodwaters that flow from high up the slopes of Haleakala. The shaded area shows the estimated dimensions of the wetland based on observations of hydrology and plant life. (Courtesy: Save the Wetlands Hui)
These moisture-laden places, often considered low-lying wastelands prior to passage of the Clean Water Act, are renowned for their ability to provide a range of what scientists call “ecosystem services.”
Wetlands help aquifers recharge, stabilize shorelines, prevent the spread of fire, act as carbon sinks, filter pollutants from stormwaters and protect critical habitat for birds and aquatic life. In Hawaii, they also hold significant cultural value, having served as the centerpiece for settlements, like at Moku’ula in Lahaina, used as fish ponds and as sources for fresh water and food production.
A 2019 study published in Marine & Freshwater Research calculated the global monetary value of wetland services at $47.4 trillion annually, the bulk of that coming from coastal wetlands.
Waters Of The United States
Despite their ecological, economic and cultural heft, wetlands morphed into a political football in recent years. They became caught up in regulatory and legal fights over what’s deemed “waters of the United States,” a designation with wide-ranging implications that tends to ping pong with White House administration changes.
Court battles over what constitutes waters of the United States erupted in the 1980s, producing four U.S. Supreme Court decisions to date, according to the Environmental Protection Agency.
Kawainui Marsh on Oahu encompasses around 830 acres of land and is the largest remaining wetland in the state. (Environmental Protection Agency)
Waters of the United States can be thought of as navigable waterways that support vessel traffic and are governed by the Clean Water Act. The federal law regulates what can be discharged into such waterways and how surrounding land can be used. Examples include the Mississippi or Hudson rivers.
Wetlands, often adjacent to navigable waterways, have also fallen under the scope of the Clean Water Act at times, although not currently.
In May 2023, the Supreme Court in Sackett v. Environmental Protection Agency ruled unanimously that the federal government has no authority to regulate wetlands unless the wetland has a “continuous surface connection” to and is “indistinguishable” from a water of the United States.
The jurisdictional fights over wetlands were a motivating factor behind Maui County’s decision to adopt its own wetlands ordinance, said Robin Knox, a wetlands scientist who lives in Kihei.
Another factor was the unique aspects of Maui’s wetlands. Many are ephemeral because of the islands’ porous, volcanic soil, rendering them outside the scope of the Army Corps of Engineers’ definition of a wetland, she said.
“Our soils in particular don’t respond to water saturation in the same way that soils might in other places. So it’s always been problematic,” she said. “The county rule removes that problematic thing by just saying, OK, you just have to have two of the indicators, not all three. So it’s more protective in that sense. It’s more inclusive.”
‘It’s Bone Dry’
While the wetlands inventory and revised definition of what constitutes a wetland on Maui might make scientific sense, some property owners and developers are wary of the potential implications.
David Bruce, who owns a 1.5-acre parcel on East Waipuilani Road in Kihei with his partner, is among them. He heard from a friend that his property was on the wetlands map, which caught him off-guard.
“It came out of left field,” Bruce said.
He reached out to the Planning Department to complain. Bruce would like to build an affordable housing project on his property and worries that if the parcel is deemed a wetland, it’ll never happen despite having a letter from the Army Corps of Engineers declaring that the property is not a wetland.
“It looks like a desert,” Bruce said. “It’s bone dry.”
Crile, who was in charge of community engagement for the project, said he heard from many people who were supportive of the effort as well as from some who have concerns. He tried to reassure them that nothing is set in stone at this point.
“Some people said, ‘Take my property off.’ Our response to them was, ‘This map is for informational purposes only,’” Crile said.
After the map is finalized, which it should be within a month or so, it will go to the planning commissions for each of the three islands, as well as the Maui County Council, the Conservation Planning Committee and the director of Public Works.
Kealia Pond National WIldlife Refuge in Central Maui is a coastal salt marsh and protected wetland that provides habitat to endangered ae‘o (Hawaiian stilt) and ‘alae ke‘oke‘o (Hawaiian coot), providing nesting, feeding and resting habitat. In winter, the wetland is used by over 30 species of waterfowl, shorebirds and migratory ducks, according to the U.S. Fish and Wildlife Service. (Cory Lum/Civil Beat/2018)
The conservation committee could advise the mayor to acquire wetland properties by negotiation, eminent domain or through the execution of conservation easement, Knox said.
If the Wetlands Overlay District is created, subdivision approvals must be consistent with the wetlands policies defined in the ordinance unless the planning director tells the council they want to make an exception.
Property owners on the list would have to produce wetland-specific information to get certain building permits.
“It just really requires a closer look at these properties before they could be developed,” Knox said.
Liability For The County?
County Council Chair Alice Lee shares some of the homeowners’ concerns. If someone’s property is deemed a wetland and unsuitable for development, Lee wonders about potential liability issues for the county.
“I’m hoping the county won’t have to make up for that,” Lee said in an interview last week.
If a Wetland Overlay District is adopted, that’s a zoning change “under the sole authority of the council,” Lee said.
Maui County Council Chair Alice Lee supported the wetlands ordinance but has concerns about how the new wetlands map may be used and its implications for property owners and Maui County. (Nathan Eagle/Civil Beat/2024)
“If the Planning Department intends to use this information for planning purposes, whether it’s enforcement or future planning, I hope they understand that they would have to come before the council for approval,” said Lee, underscoring her point.
No one from the Planning Department responded to interview requests. The mayor’s communications team offered a brief statement by email, laying out what the administration sees as the next steps for the process.
After the map goes to the respective county agencies, applicants for special use permits, subdivision approvals, community plan amendments, zoning changes, district boundary amendments and related requests must submit a wetlands report addressing a dozen listed criteria.
Some of the primary criteria include ecosystem values, any potential impacts to wetlands, and how wetlands may be maintained and enhanced.
In April when the draft map got released, Planning Director Kate Blystone said in a social post that part of her department’s “kuleana is to protect and restore wetlands in Maui County.”
The map would serve as an important first step in the county’s permitting process “leading to conservation of these sensitive habitats,” Blystone said.
