2020-02-06 Exh B Piilani Partners Remand SMA 18-070

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II am not sure that the Court will see this revised decision as being in compliance with its Order. I think it will more likely be persuaded that the existing record does not support the denial of the permit, and that, therefore, the decision of the Commission should be reversed and the permit granted. And, I do believe that that is exactly why the Court included that language in the Order. I'm going to give you a chance to try it. I'm going to give you a chance to go back through the record and see if you can support the decision with findings and conclusions that, you know, that the Court can follow, but if you can't on the existing record, you need to reverse the decision. Reversing the decision, though, would be pretty straightforward. You already have the recommendation of the Planning Department that recommended approval. It had conditions on it, and Piilani and the Planning Commission, well, Piilani agreed on the record to amended or additional conditions. And, I would especially like to refer you to condition number 4 in the Planning Department's Recommendation of over a year ago. [Mr. Fuke passed out a copy of the document.] Condition number 4 says that, "Prior to any well drilling activity on the subject property, the applicant, its successors or assigns shall secure a Well Construction and Pump Installation Permit from the State Department of Land and Natural Resources -Commission on Water Resources Management." So, given what appears to be a very genuine concern about a risk of harm to the aquifer, I think that risk would be much better assessed by the Commission on Water Resource Management. These are hydrologists that are trained by virtue of their experience and expertise to evaluate that risk and to decide whether the risk warrants a permit or not. I mean, they are the ones who have the constitutional duty to do that; they are the ones that have the statutory duty to do that; and they are the ones that have the knowledge and experience to do that. And, as a practical matter, if the Water Commission believes that this is too risky, that there is some kind of risk that, you know, maybe Mr. Nance didn't anticipate, if they think it's risky, they will deny the permit. They won't grant it. And, as a practical matter, because of their expertise, I don't think Piilani would appeal that decision. I mean, it wouldn't appeal the decision in part because since the Water Commission would be acting within their sphere of expertise, the Court would defer to them. The Court defers to the expertise of an agency acting within its sphere of authority. The Commission didn't get the benefit of that deferral because the Commission was not acting within its sphere of authority or experience when it made conclusions that there was a risk. Hey, we're acting as lay people which is normal, I mean, that's the only way you can do it. So, I think that having the Commission evaluate the risks in the context of authorizing a well permit is, is the best of all worlds. They're the ones that know. There are other conditions I just wanted to remind you. You have the conditions in front of you that were in the Recommendation, and then there were subsequent conditions that are, were all proposed and agreed to for a very specific reason, and I wanted to remind you of what that was. Sound level—the original condition would have the sound level at whatever is authorized for industrial uses. Piilani has agreed that once the construction is done and it's in operation, it will adhere to the noise levels for a residential property as opposed to industrial. EXHIBIT B 17