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WAILUKU -- The Maui County Council deferred making a decision Friday on a bill that would establish a six-month moratorium on mining of Central Maui inland sand.
The moratorium would allow for a further sand inventory study, initially done in 2006, and provide time to establish regulations to protect limited natural resources and prevent the disturbance of Hawaiian historical, cultural and unmarked human burial sites, according to the bill introduced by Council Member Elle Cochran.
The bill was revised at least eight times in Cochran's Infrastructure and Environmental Affairs Committee. The measure arose after a Honolulu TV news report in April showed Honolulu Construction & Draying moving excavated sand from a Maui Lani project to Oahu for construction projects. The company has since stopped the work.
Although the county determined that grading permits were properly issued, questions were raised about whether the excavation and exportation of high quality sand for making concrete and other purposes met the definition of "resource extraction," which would have required special or conditional use permits.
The report drew an outcry from community members who raised concerns over the preservation of the Central Maui's inland sand dunes and the protection of Native Hawaiian burial complexes that contain human remains.
Council Chairman Mike White said he did not feel comfortable voting in favor of the bill on first reading.
"This is a significant bill. Most of us support moving ahead (with) a moratorium on sand mining. (But) this has generated some challenges we need to make sure from a fiduciary standpoint we are not putting the county at risk if we move forward," White said in calling for the matter to be deferred.
He added that the bill has "been a moving target" since its inception. There have been concerns brought up by those affected by the bill and challenges lodged in the committee phase.
White asked for a delay of two weeks until the next full council meeting to "get a better handle" on whether legal challenges in written testimony "hold weight or not."
At first, Cochran wanted to put the bill up for a vote, noting her committee has been working on it for six months and took many concerns to heart and incorporated them in the bill. She added that the moratorium would be for six months and amounts to a "temporary ask of us."
Cochran said developers and landowners had lots of time to come to the council with concerns, and even if the bill passes there are waivers available in the bill.
She added that one of the largest landowners that would be affected by the bill, Alexander & Baldwin, said on Friday that it did not have any shovel-ready projects, meaning no construction work would be immediately affected.
But as the discussion continued on the bill, Cochran said she could see that she would not have enough votes to pass it on first reading. She agreed to defer the matter.
While the moratorium would be for six months, the bill provides that it could end sooner if the sand study and a sand mining ordinance have been established.
The bill identified 59 large property owners that may have all or part of their properties affected by the moratorium. Central Maui inland sand areas are identified from Waihee, through Wailuku and Kahului, and stretching just past Waikapu, according to the bill.
Notable landowners and those with the most property affected include Alexander & Baldwin with 6,163 acres; Waiale 905 Partners with 805 acres and Maui County with 369 acres, according to the bill.
Entities can be exempted from the bill. Exemptions need to be approved via a resolution by two-thirds of the council. The waiver only can be granted if the proposed activity will not affect a burial site.
The ordinance defines sand mining as extraction and removal of sand from a lot.
It will not apply to activities required to comply with county, state or federal regulations, nor will it apply to activities related to land management for agriculture, landscaping and related uses that do not involve inland sand transported outside the same lot.
Work that received a permit prior to the effective date of the ordinance would be exempted.
Violators could be subject to a fine not to exceed $1,000 per day. Those who violate the law would be liable for any costs incurred by the county to correct the violation.
Although the sand mining bill was deferred, the council approved an amendment to the bill to exempt Kehalani Ag Investors LLC/Dowling Co. from the moratorium. Cochran proposed the amendment after the owners asked to be exempted and showed that their excavation studies turned up no burials or cultural remains on the property and that there is no longer inland sand there.
She said her office also is working on another possible exemption. This involves Waiko Industrial Investment LLC, which is working on a 21-lot light industrial project.
A representative said the project is almost ready to proceed. An archaeological report has been completed, and no burials have been found, the representative said.
Several developers and landowners testified before the council opposing the bill. One of them was Grant Chun, vice president of A&B Properties. He said the company opposes the bill because of concerns about unintended impacts that could affect affordable housing as well as state and county projects.
Cochran asked Chun if A&B has new projects ready to go in the next six months. Chun replied, "we do not."
Council Member Kelly King asked Chun what could be done about the issue. He pointed to Council Member Don Guzman's set of bills that the council referred to county planning commissions in October. They address regulatory requirements when sand excavating and the monitoring required when grading and grubbing.
Steve Smith of Waiale Road 201 LLC. said the moratorium would affect the developer's affordable housing project in Waikapu. Work on the project will not export sand, he said. In fact, "we are actually in need of a lot of fill," he said.
Developers plan to get the fill from next-door landowner Valley Isle Fellowship, which plans to remove excess sand from a lot for improvements, such as parking and a play area for children, Smith said.
"The tradeoff doesn't benefit me (but) I'll do it as neighbors," Smith said. "If this passes, I'd have to go to them and say 'no.' ''
Adriane Raff-Corwin of the Sierra Club Maui Group said the organization supports the bill. She noted that it's a "heavy compromise" from what was originally drafted.
She also noted that a 2nd Circuit Court judge has placed a heavier burden on one of the property owners, Maui Lani Partners, regarding sand mining. Raff-Corwin was referring to 2nd Circuit Judge Joseph Cardoza's written filing Thursday on his ruling in September.
In that case, plaintiffs Malama Kakanilua, Clare Apana and Kaniloa Kamaunu filed a lawsuit in July to stop earth-moving activities on Maui Lani's Phase IX site until the company complies with its archaeological monitoring plan.
Under Cardoza's September ruling, Maui Lani is blocked from doing earthmoving work unless certain conditions are met. Those include the plaintiffs or their attorney being notified at least 48 hours before the work is conducted; complying with the archaeological monitoring plan and having a plaintiffs' observer at the site when the work is done.
Responding to testimony by developers and landowners who maintained that the moratorium was too strict, Corwin urged council members to pass the bill, noting that it isn't as harsh as the court order.
She told council members that the bill before them may be a "compromise a little too much."
* Melissa Tanji can be reached at mtanji@mauinews.com.