2019-03-07 Hearing Transcript - Piilani Partners Request for Reconsideration SMA 18-000070

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dual mandate. The two mandates are protection of the resource and maximizing reasonable beneficial use. In this case, because we are not in a water management area, so Piilani does not require a water use permit, it falls on this Commission to consider the second of those mandates, reasonable beneficial use. And, we know from the Hawaii Supreme Court in the Kauai Springs case that the way the Commission evaluates whether the use is reasonable beneficial is by determining whether it will interfere with any public trust use of water. The answer is clearly no. Even at the maximum projected use, Piilani will still use less than .1 percent of the sustainable yield of the Hilo Aquifer, and that's after all current and future projected uses and DHHL reservations are accounted for. There is no public trust use that will be deprived of water by granting Piilani's permit. The other mandate of the Public Trust Doctrine, protection of the resource, is given by Constitution, statute, and rule to the Water Commission. Article XI, Section 7 is the provision of the Hawaii Constitution that states that the State has an obligation to protect, control, and regulate use of Hawai`i's resources for the benefit of its people. That provision is often referred to as the constitutional mandate of the Public Trust Doctrine in Hawaii. That same provision also provides for the creation by the Legislature of a water resources agency to, among other things, protect ground and surface water resources. The Legislature created that agency. That's the Water Commission. It also enacted the Water Code, HRS, Chapter 174C, Part VII of which concerns the Water Commission's mandate with respect to wells. Several statutes in there. So, as made clear in the draft Water Resources Protection Plan update that the Commission is now working on, the purpose of Part VII of the Water Code and of the Hawaii well construction and pump installation standards used by the Water Commission is to ensure protection and optimization of ground water resources, and those, that's in attachments that have been attached to our application. The Commission's February 7th action turns the constitutional and statutory framework upside down. The Commission appears to be deferring to the completion of the WRPP update which results in a denial of Piilani's application without ever considering the criteria or making any determination based on the criteria in the Commission's Rule 9-11(e). Moreover, the Commission's application will prevent the Water Commission from answering whatever question the Commission had about Piilani's well permit because if the, if the SMA application is deemed denied, the Water Commission will never get to our well permit. It won't consider it, and you can see that in Exhibit F to our motion which is a schematic diagram from the WRPP of the well permitting process that's used by the Water Commission. So what Piilani respectfully requests is for this Commission to do its job under the CZMA and evaluate the criteria that are in the Commission's Rule 9-11(e), and at the same time to move out of the way for the Water Commission to do its job and to evaluate whether Piilani's proposed well will have any effect on the protection of the resource. If the Water Commission believes that Piilani's proposed well will put the resource at risk, it won't grant the well permit. It has standards that it applies to. EXHIBIT B 3