Hui Wai Ola NPDES Comment

June 5, 2021

HUI WAI OLA

c/o Laulani Teale

To:  Hawai‘i Department of Health, Clean Water Branch

via email: CleanWaterBranch@doh.hawaii.gov

Subject:     Public comment on Department’s recommendation to approve TMT INTERNATIONAL OBSERVATORY, LLC’s application for Renewal of Individual National Pollutant Discharge Elimination System Permit (Permit No. HI S000431)

Aloha Kākou, 

I am writing to request that you please reconsider your recommendation to approve TMT INTERNATIONAL OBSERVATORY, LLC’s (TMT) application for Renewal of Individual National Pollutant Discharge Elimination System Permit (Permit No. HI S000431). I also request that you please hold a public hearing on the matter prior to acting on the TMT permit application, as is required because this is a matter of significant public interest. 

In the event that this permit is granted, I request a contested case hearing.

My hope, however, is that such a hearing is not needed, as this permit should not be granted at all.  Amongst other important reasons, here are some that Hui Wai Ola urges you to consider: 

 TMT permit approval would harm the cultural practices, sacred waters, healing plants and other important elements of our sacred Indigenous work. The practitioners of Hui Wai Ola, as well as many others carrying on sacred ancient traditions, would be severely impacted.  

 This harm was not disclosed by TMT’s application. In its renewal permit application dated November 2018, TMT incorrectly “certif[ied] under penalty of law that my proposed discharge will not impair any State water (including but not limited to rivers, streams, wetlands, ponds, ground waters, and ocean), Native Hawaiian cultural resources (including but not limited to burial sites/iwi, heiau, and taro lo’i), or the exercise of traditional Native Hawaiian cultural practices.” This is totally false.  

The recognized cultural practice associations with which we are connected were not contacted or consulted in making this claim.  TMT did not do its due diligence in assessing whether potential impacts to these  sacred practices existed.  

In its March 7, 2019 notice, the Department referred to criteria under HAR chapters 11-54 and 11-55. On January 9, 2020, the Department published a letter outlining criteria it considered in reviewing whether to deny the TMT application under HAR § 11-55-17(c).  These criteria did not include identification of traditional and customary practices or cultural resources, consideration of the ways those practices and resources may be impacted, nor adoption of any protections for them. For this amongst other reasons, this permit would be in violation of the Department’s obligations under article XII, §7 of the Hawai‘i Constitution.  Water quality standards adopted by the Department are based on standard impacts to human health and do not in themselves consider impacts to Kanaka Maoli traditional and cultural practices; therefore those standards cannot be assumed to protect our practices, which are an integral part of our well being and health.  Based on this incomplete analysis, the Department “tentatively recommends” approving the TMT’s renewal application for an individual NPDES permit.    We oppose this strongly.  

Hui Wai Ola is an unincorporated association of traditional and customary practitioners of sacred Kānaka Maoli water-intensive practices from across the Pae ‘Āina, including Hawai‘i Island.  We are collectively involved and concerned with the continuation of cultural practices using sacred waters, and the continuation and revitalization of pono (rightful) practices in the future.  The rightful connection of the past, present, and future, as determined by those who taught us, is a direct kuleana for Hui members.  

Some Hui Wai Ola members, including myself, were taught by master practitioners who were strongly connected to Mauna Kea.  Some of us gather specific herbs and waters from Mauna Kea. We were taught that some of these are life-saving and extremely sacred. Their sanctity, and therefore their healing power, depends upon the wellness and pono of the land that holds them, including the protected sanctity of the entirety of the mountain.  

Our teachers emphasize the relationship between land, waters, and people as a crucial component of health.  This relationship extends to traditional medicines that are prepared with laau and wai that in some crucial cases must come from specific places.  Disturbances to the natural percolation of waters or other aspects of the Northern Plateau of Mauna Kea would harm waters and plants over a great area, including the areas in which Hui members have been taught to gather.  

Hui practitioners have been taught knowledge of the gathering and use of waters from sources that begin as mist or rain on the Northern Plateau of the Mauna Kea summit.  This wai (water) serves cultural medicinal purposes and must be extremely pure for these purposes. This sacred wai is contributed to by natural runoff on and around the plateau of the north side of the Mauna Kea summit.  Changing how water enters the underground aquifers in this area may significantly impact the purity and quality of this water.  

It must be noted that runoff mitigation measures in themselves have the potential to do serious damage to these sacred waters, especially through unacceptable potential changes to the flow of surface and subsurface waters, which are important parts of ancient ecosystems and hydrologic paths.  These impacts have the potential to linger in this fragile, sensitive place long after the mitigation measures are removed.  

Different areas of the Mauna have different orientations and weather patterns, which make for different medicinal qualities that may be needed by specific practitioners, or for specific patients or illnesses.  Like waters, herbs are very sensitive, particularly in fragile and unique areas such as the slopes of Mauna Kea. Herbs are affected by human activity for many miles around, above and below. 

The Northern Plateau of Mauna Kea is very important in many ways..  

  All levels of this northern area are important in gathering, in part because they are relatively untouched; the air and rains and land are very clean and free from a lot of human activity. This is important medicinally. The patterns of winds and rain are also different from any other place on Earth, which means that the medicines of that area are different from all others. The northern winds and rains of this area are connected to the Pacific, and especially to the lands of Moku Honu (Turtle Island), particularly the area from Alaska to Baja California, whence some important winds have directly travelled. The Northern Plateau of Mauna Kea is one of the primary areas in all of the Pacific for the gathering of high-level atmospheric waters that have travelled thousands of miles before being naturally collected in this sacred area. 

 The elements of this place are also connected most strongly to the rest of the Pae ‘Āina o Hawai‘i, which the plateau faces.  Just as the Northern Plateau of Mauna Kea is the primary place in all of Hawai’i to view the entire island chain in relation to the heavens, it is also the place by which the waters of all islands are connected, through clouds, winds, vapors and more.  The integrity of the Mauna as a whole is very important to the waters that are in it and on it, because those waters are protected and purified by the mountain as a whole. Their ability to heal comes from that sanctity, so it is important that no harm come to any part of the mountain. The same is true of the herbal medicines that are gathered. 

My own laau lapaau teacher, who was the most renowned traditional Hawaiian herbalist of his time, was extremely meticulous about our gathering practices, and very sensitive to shifts in the relationship between people as a whole and specific plants, including those located in areas watered by Mauna Kea aquifers.  Many in Hui Wai Ola were taught this sensitivity.

Several times, he suddenly stopped us from making medicine from a specific herb that he had previously been using regularly. We were never told why, but came to understand that the relationship between that herb and people had shifted in such a way that had done some harm to its healing properties, at least for certain ailments, and could no longer be used effectively.  

Members of Hui Wai Ola use waters from Mauna Kea, including snow, for cultural and healing purposes. We are also concerned with the protections of other sacred water-related practices in which Hui members are engaged or have knowledge of, many of which are being revitalized in current and upcoming generations of Indigenous practitioners, or may be brought back in the near future.  

One example of this is the practice of sacred time-telling, in which the clearest sacred waters are used in order to observe very fine celestial reflections so that very specific and important determinations of ceremonial timing may be made.  Sacred waters are used for other important observational and reflective practices as well.  

Hui Wai Ola has serious concerns about pollution. Some of the most sacred healing waters of Mauna Kea and its surrounding areas are sourced deep within the mountain. Their percolation through layers of lava and other substrate are integral to their unique qualities.  Natural runoff in the form of surface water and moisture is also important. These waters, and also plants that are sustained by them, are used in laau lapaau and other sacred practices, and would be seriously affected by excavation and surface changes of the Northern Plateau. 

 Laau lapaau patients must put all of their faith into the process of healing, as must all laau lapaau practitioners.  Healing is extremely serious. There can be no doubt attending the healing process.  If a practitioner is not certain whether a water or mineral source or plant is affected by contamination or has the same qualities due to changes to pollution and runoff patterns, this lack of certainty impacts our practices, pono, and the ability to heal.  In some lineages of strict traditional practice, energetic contamination or disturbance means that that specific medicine or sacred thing cannot be used at all.  In this way, such changes have the potential not only to impact our sacred practices, but in some cases, potentially to eliminate them entirely.  

Approval of the TMT renewal application thus threatens very serious harm to Hui Wai Ola and its members’ cultural practices.  The Department of Health has not identified those practices, the harms, nor how to protect the practices, and therefore is not meeting its constitutional obligations. Further, TMT incorrectly certified that its discharges will not impact cultural practices and resources. This is false.

Second, TMT previously violated terms of its NPDES permit. The Department incorrectly concluded the TMT had no opportunity to become non-compliant with the original permit because construction had not commenced.  Idle TMT construction equipment leaked oil directly onto the bare ground of the TMT construction site in 2015. See HAR §11-55-17(c)(1) (“Noncompliance by the permittee with any condition of the permit” is a reason to deny renewal).  There may have been other impacts as well.  

The original permit required compliance with best management practices, which include “operating procedures, and practices to control plant site runoff, spillage or leaks[.]”  HAR §11-55-01.  TMT has not complied with their previous permit and should not be granted a new or renewed permit. 

Third, the Department has not conducted a meaningful review of the impacts of TMT construction stormwater runoff in the particularly sensitive ecosystems of Mauna Kea, and new information concerning Mauna Kea hydrology was not considered in either the TMT’s application or the Department’s recommendation.  

The Department’s recommendation is premised on the TMT’s application, which is dated November 16, 2018.  Since that time, new information about Mauna Kea hydrology has been presented to the State that is material to the ways that stormwater runoff percolates through the mountain and into aquifers.

The Department’s review is stymied by the TMT application itself, which appears to be factually inaccurate.  For example, it states that it will reduce impervious areas by 11.1 acres.   Many other errors exist as well.  

To ensure compliance with anti-degradation laws, the Department’s review must be edified by actual review of hydrological and geological conditions at Mauna Kea, which are unlike many other aquifer systems.  The proposed TMT location is hydraulically connected to the saddle region between Mauna Kea and Mauna Loa volcanoes, where “hydrologic conditions were strikingly different from those predicted by conventional models for ocean islands[.]”  

Further, since the TMT applied for its permit, the Caltech Submillimeter Observatory has put forth new hydrological information as part of its recent decommissioning plan that was not considered in the application and which establishes the interconnection between aquifers underlying the summit and much of Hawai‘i island. This needs to be considered as well.

Standard conditions and cursory review would not suffice to meet the Department’s obligations to protect public trust water and Kanaka Maoli traditional and customary practices, as it is bound to do.

It must be remembered that Mauna Kea and all of the waters connected to it are a part of the Kingdom of Hawai’i.  While we are not requesting that this Department address this issue at this time, nor seeking remedy outside of the Department's abilities or immediate  purview,  it is important that the Department of Health at minimum meticulously follow its own rules and the laws of the State of Hawai’i in the protection of that which was wrongfully taken, and must someday be ultimately returned.  

For these reasons and more, Hui Wai Ola requests that you reverse your recommendation to approve TMT’s NPDES permit, and hold a legally-required public hearing on this matter before any action is taken.

Mahalo nui loa for your time and consideration.  I look forward to your timely response.

Me ka ‘oia’i’o,

Laulani Teale, 

on behalf of Hui Wai Ola