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HomeMy WebLinkAbout2020-02-06 Exh B Piilani Partners Remand SMA 18-070WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 6, 2020 A regularly advertised hearing on the discussion and action of the Third Circuit Court's December 13, 2019 Order remanding SMA 18-000070 (PIILANI PARTNERS, LLC) back to the Hawaii County Windward Planning Commission was called to order at 10:58 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Thomas Raffipiy presiding. COMMISSIONERS PRESENT: Gilbert Aguinaldo, Dean Au, Joseph Clarkson, Donn Dela Cruz, Thomas Raffipiy, John Replogle. ALSO PRESENT: Michael Yee (Planning Director), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner), Jessica Andrews (Planner), and Sarah Hata-Finley (Commission Secretary). And 41 members from the public in attendance. APPLICANT: PIILANI PARTNERS, LLC (SMA 18-000070) Discussion and action on the Third Circuit Court's December 13, 2019 Order remanding Special Management Area Use Permit (SMA No. 18-000070) back to the County of Hawaii Windward Planning Commission to issue a revised findings of fact (FOF) and conclusions of law (COL) in support of its original Decision and Order, for the narrow purpose of the Windward Planning Commission clarifying FOF and COL regarding its application of the public trust doctrine for the denial of SMA No. 18-000070, which requested a Special Management Area Use Permit to develop a potable water well and bottling facility with related improvements on a 2.5712 -acre parcel within the Special Management Area. The subject property is located at 525 Pi`ilani Street, at the northeastern corner of the Pi` ilani Street-Mililani Street intersection, Waiakea, South Hilo, Hawaii, TMK: (3) 2-2-033:011. RAFFIPIY: We'll proceed to the next item on the agenda. HALL: I just wanted to address everyone real quick. So, this, to give you a little bit of background about what Piilani, for those of you who have been through it with us, you know, basically it got appealed to the Circuit Court, and the Judge ordered basically that the Commission cannot rule on using plastic bottles to say that, you know, that it doesn't meet SMA criteria. So, basically, the Commission will not be able to use plastic bottles, you know, as a reason to deny the permit. The other thing is the Court was very clear that we are to use the existing record, so basically the evidence from the past hearings. And, also, with the final caveatactually, I'll just read the very last paragraph of the Order because I think that kind of explains it the best, if I can find it under EXHIBIT B this big pile. All right, so basically, "Based on the foregoing" this is the Court's Order, the "D"—"the Decision & Order [D&O] is vacated," there, it's talking about the Planning Commission's last Decision & Order regarding Piilani, "is vacated in its entirety and the matter is remanded to the Commission. Within sixty [60] days of the entry of this Order, the commission shall issue revised findings of fact and conclusions of law in support of its original D&O that (1) do not rely on Piilani's use of plastic bottles as the basis for finding a substantial adverse environmental impact or inconsistency with the objectives and policies of Chapter 205A, HRS" Hawaii Revised Statutes, "and (2) clarify, consistent with this opinion, its findings of fact and conclusions of law regarding its application of the public trust doctrine." Finally, the Court says, "If the existing record does not support such a finding [findings] or conclusions of law, the Commission shall reverse the original Decision & Order [D&O]." So, that's pretty much what this hearing today is limited to, is what the Court has ordered the Commission to do, so that's what the Commission will be focused on, and yeah, all right, that's it. RAFFIPIY: Thank you very much, Ms. Hall. HALL: Mm-hmm. RAFFIPIY: Yeah, we'll just go, we just want to remind everybody that if you want to testify on this matter, please sign up—or any other matters on the agenda please sign up in front. Before we entertain public testimony, is there any questions from the Commission in regards to what Ms. Hall was, the Court ordered? DELA CRUZ: Yeah, Chair, I'd like to go into executive session to ask our Corp. Counsel some legal questions. RAFFIPIY: Is that a motion? DELA CRUZ: Yes, I'd like to make a motion. RAFFIPIY: There's a motion on the floor right now to AU: Second RAFFIPIY: —get into executive session. AU: Second. REPLOGLE: Second. RAFFIPIY: It is moved and second—all those in favor say, "aye?" COMMISSIONER: Aye. EXHIBIT B 2 RAFFIPIY: Any opposed? No? Okay, at this time, I'd like to ask the audience, the public to please if you can relocate outside while we consult with our attorney. Thank you. At 11:01 a.m., it was moved by Commissioner Dela Cruz and seconded by Commissioner An that the Commission go into executive session to consult with its attorney regarding questions and issues pertaining to the Commission's powers, duties, privileges, immunities, and liabilities, pursuant to Hawai `i Revised Statutes Section 92-5. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. The room was cleared, and at 11: 04 a.m., the Commission went into executive session. At 11:28 a.m., it was moved by Commissioner Dela Cruz and seconded by Commissioner Aguinaldo that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. The hearing reconvened for regular session at 11:31 a.m. RAFFIPIY: The Windward Planning Commission is back in session. We're still on Item No. 2, discussion and action on Third Circuit's Court December 13, 2019 Order remanding Special Management Area Use Permit, SMA No. 18-000070, back to the County of Hawaii Windward Planning Commission to issue a revised findings of fact and conclusions of law in support of its original Decision and Order, for the narrow purpose of the Windward Planning Commission clarifying findings of fact, conclusions of law regarding its application of the public trust doctrine. So, at this time, we're going to move into public testimony, but before we go into public testimony, I just want to ask Commissioner Dean Au and Commissioner Donn Dela Cruz if they had an opportunity to read all the information DELA CRUZ: Yes RAFFIPIY: —about this. DELA CRUZ: Yes, I have. AU: Yes, Mr. Chair, I have read all 1,400 plus pages of the documents, so thank you. RAFFIPIY: Thank you very much. At this time, we're going to move into public testimony. I'd like to call out, call up to move to, you can move to the front Cory Harden, Gene Tamashiro, and Greg Kemppainen. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Planning Commission? TESTIFIERS: Yes/I do. RAFFIPIY: Thank you. We'll start from your right to your left. Please state your name— EXHIBIT B 3 KEMPPAINEN: My name is Greg— RAFFIPIY: And, the area you reside in, who you represent. Please speak directly into the microphone. Thank you. KEMPPAINEN: Thank you. My name is Greg Kemppainen. I live in Kea`au. I used to live in Michigan. I was a, I worked for the Department of Natural Resources there in land and water management division, in the ground water permit section, and aone of the things that Michigan went through was that very large companies like Nestle would come into economically deprived areas that had lax water laws and take advantage of that by offering a couple of minimum wage jobs for taking out millions of bottles a day of water that was owned by, whether this is the Kingdom of Hawaii or whether this is owned by the State of Hawaii, this is the water is owned by the people. It is whether it's in an aquifer or whether it's surface water, it's, it's owned by the people, and I don't believe that it is the responsibility of a governor to, or a commission that doesn't listen to public testimony and take seriously a person's, or the population's input into what to do with the water. And, so even though they have a water resources commission in Michigan, and most people that testified, and polled were against Nestle coming and taking the water for—all they paid was a $200 application fee and basically offered a couple of minimum wage jobs in the area. They take out millions and millions of bottles of water every single day. Six and a half million bottles of water a day out of these, out of Michigan, and I think that this is wrong, that we would just allow the water that belongs here, this is very, it's a limited resource, you know, and especially if it's an aquifer, that, you know, if you deplete the aquifer, people that live in Hawaii are not going to have that water. It takes a long time to filter through granite and basalt. So, I guess I just want to implore to the Commission here that I, I, you know, plastic bottles aside, I don't think that the issue ofof, you know, giving somebody the right to take the public's water is, you know, should be done lightly. Thank you. RAFFIPIY: Thank you, Mr. Kemppainen. Mr. Tamashiro? TAMASHIRO: Aloha, and good morning, kakahiaka, Members of the Windward Planning Commission. I'm Gene Tamashiro. I'm a true Kanaka, Hawaiian National, Ko Hawaii Pae `Rina, and I am representing Hawaiian Kingdom general assembly. We have served notice for many, many years now, and actually it goes up to the President, Vice -President, Secretary of State, all the way down through David Ige through the County. We might even have some Council people here, certainly the Mayor, the Prosecutor, Corporate Counsel, your boss, Joe Kamelamela [referring to Ms. Hall], has met with us three times, and in every time we met, not once has any of these people, including, well here's your opportunity, but nobody who pledged an oath to the U.S. Constitution responded to, respond and rebut our claim that Kingdom is in continuity. So, here I go. I'm here today to faithfully, respectfully, and sternly remind all of you that you cannot make rules for what you don't own. Okay? The 127 -year hewa, false presumption, is over. Hawaiian Kingdom Ko Hawaii Pae `Rina is in continuity, and you will all be served in Aloha Truth, a EXHIBIT B 4 notice for title correction and also a warning to cease and desist. Typically, you just get the title correction and then you get to cease and desist ten days later, but, because it's been so many times that people are in dishonor and in default, we're going to give you both today, but this is a tremendous opportunity for justice for everybody all concerned. Ladies and gentlemen, this is not a joke or mere paper tiger to be ignored anymore. Hawai`i's true status and the law of this `aina is confirmed because nobody responds. It's a maxim of law. If I make a claim, and I provide evidence—sure, okay, thank you very much. [Referring to Ms. Hall's sign indicating how much time Mr. Tamashiro had left to test.] If I make a claim and I provide evidence and nobody responds, the claim is now true. The law is confirmed. Kanaka Maoli and Hawaiian nationals of all colors are right now organizing our judicial system and law enforcement infrastructure and procedure. I promise you, the truth and the law will be enforced, and pono Hawaiians and faithful Americans, if you want to be American, will be enforcing the same law together. The same law. I've included a copy in the first title correction, a copy of U.S. Constitution, Article VI, Clause 2 in your notice. This is called the Supremacy Clause of the U.S. Constitution. It's very clear. Treaties are the highest law of the land. This is U.S. Constitution. Any law, no matter how long, 127 years you've been traditionally following it, there's no statutory limit, yeah, on fraud. Be truthful. Do no harm. Honor your word. Play close attention everybody, because the law of this `aina is returned. You will have ten days to respond in writing, please, with your autograph. God bless everyone. Ua Mau ke Ea o ka `Aina I ka Pono. I'll be here for any questions whether in private or public. We thank you for your time. RAFFIPIY: Thank you, Mr. Tamashiro. Ms. Harden? HARDEN: Yeah, good morning Commission. Thank you for your volunteer service. I'm going to be just raising some points that you may or may not want to add in your reply to the Judge, and I'm speaking for Sierra Club, Hawaii Island group, Cory Harden. So, I'm going to be jumping around a bit. The Judge said don't talk about Piilani's use of plastic bottles, but I'm not talking about the use of plastic bottles; the problem is Piilani's abdicating the responsibility for the bottles after they sell them and get their return on them. A comment from the State Office of Planning talking about the aquifer. They said it was fresh, irreplaceable, and highly vulnerable to contamination. Regarding public trust, if Piilani is not harming the public trust, I wonder why there was just zero public testimony in support and, of course, tremendous public testimony in opposition. There was also opposition from Native Hawaiian leaders, which bring us to cultural impacts, and for some Native Hawaiians, the water has spiritual qualities, and as Claudia Rohr has pointed out, Piilani is trying to exploit that and market it. That was from my emailed testimony and then I did some written testimony. There has been a concern about leaks underground. In fact, the Piilani hydrologist talked about well drilled in, on West Hawai` i. Had no idea that they would run into the situation which they did. It was flowing out. "We just sealed the leak last year," and he said I think this was for 16 to EXHIBIT B 5 17 years, the leak was going on, three or four hundred gallons a minute coming out of the deep aquifer into the salt water and the basal ground water below. Another testifier spoke about this aquifer being a really good resource because it's capped and sealed off, so if we mess up our aquifers up above, we still got that as a reserve or insurance policy. And, this testifier was concerned about setting a precedence. He talked about what's happened on Oahu, overdevelopment of wells compromise the system and now the once pristine system is contaminated with military and agricultural waste. And, last point is about noise. There was discussion where the Planning Department staff said it's really hard to enforce noise ordinances and the Commission felt maybe it wasn't that difficult, but it looked like noise could really be a problem and very hard to get that project, for people to change anything. Thank you. RAFFIPIY: Thank you very much. Do you have any questions for the testifiers, Commission? Thank you very much. You may take your seat. Can I have the next group of testifiers come forth, please? Mr. Dwight Vicente, Jaerick Medeiros-Garcia, Dean Fukuchi, and Claudia Rohr. ROHR (from audience): You cut out. Could you say that again? RAFFIPIY: I have Dwight Vicente, Jaerick Medeiros-Garcia, Dean Fukuchi, and Claudia Rohr. Please come forth. ROHR (near the testing tables): Which way are we going? I want to be last. HALL: You can go right there. RAFFIPIY: You can sit right there, ma'am. Can you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? MEDEIROS-GARCIA/FUKUCHL [Nodded yes.] ROHR: I do. RAFFIPIY: All answered affirmative. Thank you. We'll start from this end of the table going back. You may state your name, who you represent, the area you reside. Please speak directly into the microphone. Thank you. MEDEIRO S -GARCIA: Mahalo. Aloha, everybody. Thank you for this opportunity for letting me speak. I come from Pepe`eke6, Makanaloa. My name is Jaerick Medeiros-Garcia, and I thought this issue was solved already. For real. We're back here at the table again. But, I just was, I'm just here to oppose anything against this—you know, whatever this Piilani Water Bottling Company wants to do. I don't know if you guys realize but that is conservation land. don't know how they would get one permit to build anything in some place that's going to be flooding or King Tides putting our County responsible for allowing these things to happen, you know. And, notice, that right behind our County building, this big rain that we just had, by the EXHIBIT B 6 culture center, two feet of water the parking lot was under. And, that goes all the way back. I mean, I don't think this was a good idea in the first place for them wanting to tap into any aquifer or any freshwater spring that might be. We do not have a good recycling program here on the island. It's just, it doesn't make sense. I don't know why we would be at this table again, but one again, mahalo for your guys' time. Thank you for what you guys all do for us, our communities, and, yeah, mahalo. RAFFIPIY: Mahalo, Jaerick. Mr. Fukuchi? FUKUCHL Yes, my name is Dean Fukuchi. I'm here to testify on three points. One point is technical well data. I'd like them to see, have them include more information on the well drawdown, the radius of influence, the aquifer re -charge rate, the cone of influence, and the salt- water intrusions. Those are critical data to be able to evaluate a well construction and in terms of its impact. Yeah, the other item is I think we're not looking at the cumulative impacts correctly. I think as you draw down from the existing aquifer in that area, there is an adverse impact that is occurring in the Wailoa Pond and the river system. As more and more fresh water is drawn out, less and less water is exiting the Wailoa Pond and the river system and, therefore, is causing that waterway right next to Suisan to get shallower and shallower. When I was growing up in the eighties and then the seventies, I used to see millions and millions of water—used to just rush right out Suisan, that area. So, with that much volume, that much water that was rushing out, it would keep that exit or area clear of the sand. Now, you can see that there is less and less water going out so now the sand is coming back in because of the wave action. There is nothing to push it out anymore, because you are drawing too much out of the aquifer. So, with that said, I think the EIS or whatever environmental study needs to look at a bigger picture, because in time, as you draw more from that aquifer, you're going to need a new boat harbor or a new exit area out of Wailoa, because the wave energy is just going to draw the sands in and fill that area up. The last item I'd like to talk about is it's not pono to take Hawaii resources, the water the water that is considered the source of life of Hawaii—for profit. That's the way I learned it. We share, but not to take for profit, and that's all I have to say. Thank you. RAFFIPIY: Okay, thank you, Mr. Fukuchi. Ms. Rohr? ROHR: Thehello, I'm Claudia Rohr, and thank you for doing your job or duty. The draft finding of facts, conclusion of law, decision & order, the amended version, was filed on February 4 1 at 4:08. You're actually violating the Sunshine Law by providing this information so late that people can't really do a good job at supplying written testimony. There's many people who couldn't come today. Okay, I hope you'll be patient and let me fill in whatI submitted a testimony late. I think you need to throw your rules out, and I think you need to make sure that you read it all. I think that this draft is weak and you should, that Ms. Hall or whoever is dealing in the Court should ask for EXHIBIT B 7 a motion for a continuance so that you can respect the Sunshine Law and include public, the public in these revisions. The decision & order says two things, not one thing. The agenda is wrong. The Court order says, "(1) do not" it says, "the Commission shall issue revised findings and [of] fact and conclusions of law in support of its original D&O" i.e. denying the SMA permit, that "do not rely on Piilani's use of plastic bottles as the basis for finding a substantial environmental [adverse] environmental impact or inconsistencies [inconsistency] with the objectives and policies of [Chapter] 205A ... and (2)" the public trust doctrine. They didn't say that you couldn't add the impacts to public land. That case was Hilo Project, CAP 14-000751, Hilo Project vs. The Planning Commission. The Court said remanded because they didn't consider the impacts to the public land. You heard much testimony about Wailoa River State Recreational area. It's included in the Envision Hawaii or Hilo, Hilo Envision Plan 2020-25. It's part of the Bayfront Trails plan. This project is not consistent with what I would call our General Plan, and these community plans that have been worked up over the last ten years. I submitted the Noise Reference Manual. I submitted the email from James Toma. "Thank you for your email. The Noise Section is responsible for enforcing Chapter 48 [46], Community Noise Control. Piilani Partners [,LLC] may apply for a noise permit that would limit the times of noisy construction work Monday[s] through Friday[s]." The industrial activities would also need to comply with Chapter 48 [sic]. The County, if the County chooses to add special noise limitations through a permit that they issue, then it would be up to them to enforce these conditions. So, basically, we know now it's unenforceable. A special, a special noise condition is unenforceable, the community Noise Reference Manual says that it harms wildlife. I personally see the Nene fly in every afternoon to feed in Wailoa, in Waiakea Pond there, because they don't have enough food where they're living. It the noise, it's harmful for human health. They talked about violence. So, you're actually making it more dangerous for people to go to that park if there is incessant noise nearby, because people get irritated and lash out and start fights. I testified to all of this, and don't laugh at me. I don't laugh at you. REPLOGLE: I'm not laughing at you. I'm actually agreeing with you. ROHR: Oh, I'm sorry, I'm sorry. Okay, I live near a beach park. There's a lot of violence, and it happens for various reasons, but one reason in this noise manual is that people get more angry when they are around incessant noise. So, if you would please add into this another section under the public trust doctrine because Article XI, Section 1 protects the beauty and natural environment of public land, and you've had testimony about that. Okay, so—so there, you, the agenda just says narrow public trust. No, that wasn't it. It was more than that that the Court said should be considered. Okay, now the fact that you didn't get specific in the revisions and they weren't done in Ramseyer, we can't even tell what was changed. Jerry Rothstein won a, won a case against the County Council for a rezoning amendment under the Sunshine Law because they didn't always get the revisions and the Ramseyer version to where the public could even review it and testify EXHIBIT B or submit written testimony, and the Court found that you have to give people enough that they can do written testimony. Okay, theI talked to Commission on Water Resources and urged them to recommend an EA. I think that the decision about not, it not being triggered is wrong. They have to extend the sewer, and they haveI'm going to ignore that [referring to Ms. Hall's sign indicating Ms. Rohr's three minutes to testes had passed] because you've ignored every rule, Malia, and it's because of you I couldn't prepare. HALL: I've given you extra time. You've had double the time that everybody else has had. Please respect everybody else. ROHR: You respect me! You submitted that on the fourth HALL: I am completely respecting you ROHR: No, you're not HALL: Please proceed and wrap up your testimony. ROHR: I'm going to ignore you. HALL: Okay, sounds good. ROHR: Okay, so, basically if you look at the record, they defer the decision on the EA to Public Works later. They did not, under the HAR 11-200, the version that was in place before, they had to confer with the other agencies. They didn't confer with Commission of Water Resources. I had them all ready to send their comments on exempting it from an EA, and the comments were like this. The fact that the Commission on Water Resources has promulgated strict well drilling standards and rules, it's evidence that there is real risk of contaminating the lower aquifer. I believe that was in one of the cases. Maybe the, it might have been 1250 Partners? Was it well, anyway, I can't think of the first name, but versus 1250 Partners. Okay, I got that. I sent in—okay, I'm just going to go over the changes as I see them, because that's what we're reduced to. RAFFIPIY: Ma'am, can you summarize it, please? ROHR: Yes, I'm summarizing it. RAFFIPIY: Thank you, ma'am. ROHR: Hold on. Okay, page 12, part 6-b, it talks about Native Hawaiian traditional rights, but you should add in part 7, Principle 1 the words, "The thrust of Piilani's proposed use of public trust resources is the commercialization of the spiritual qualities of 2,000 -year old Mauna Kea water, and it is not reasonable and beneficial use because domestic water use is at risk of contamination." But, the Court actually told you to compare the use between Piilani's use and public use, and I wrote to you about that. The comparison is people want to reserve it like Cory EXHIBIT B 9 said as a bank account or an insurance policy for public use only. So, bottling the spiritual qualities is not reasonable. If they want to take water from the upper aquifer, you know, that's something different. That's not what they're doing. Ok, so number 8, I would add, "The fact that the CWRM has promulgated strict well drilling standards" and that's from that email, "and rules is evidence that there is a risk of contamination." And, that's from case law. Case law says that. Ok, so. RAFFIPIY: Ms. Rohr? ROHR: Yes? RAFFIPIY: With respect to everybody's time, can you please wrap it up, please? ROHR: I am. I'm giving you specific changes that I have bothered to look up and do. I mean, we were not the ones who were late. You can't really limit us, because you didn't even give us this document till 4 o'clock two days ago. Okay, I just wanted to make sure I covered my bases. So, you're going to lose unless you revise this. You should ask the Court for a motion for more time so that you can respect the Sunshine Law. The documents went out late to the public. Cory Harden didn't even get a copy of the finding, the proposed amended finding of fact. This is not fair. You can't lose a lawsuit because people are late, Malia Hall. That's not okay— HALL: I'm not late ROHR: —and that's all I have to say HALL: I was not late, Ms. Rohr. You see, what happens is the Sunshine Law requires that you guys get it the same time as the board. The board got it that same time as you, so there was no lateness. I didn't violate any laws. So, thank you for your testimony, and please let us move on with the day. We have a lot of agenda items. ROHR: I will. HALL: Thank you. ROHR: But you still violated it whether you think you did or not. HALL: Okay, noted. ROHR: Only tricky people HALL: Noted, noted— ROHR: Noted, noted, and I sent the rule to Jeff. EXHIBIT B 10 RAFFIPIY: Thank you, Ms. Rohr. Any questions from the Commission? Thank you very much. You may take your seat. YEE: Michael Yee, Planning Director. So, if you've been to some of these Commission meetings, you know, sometimes I feel like I use it as an education opportunity so the public, who is not used to these proceedings, understands what's going on. Unlike the earlier application, there is a permit being submitted. The board decides. This is different. I've—folks need to understand, there was an SMA Permit application. This Commission denied it. It then, typical, the Applicant went and appealed the decision, okay? So, now the Commission is in this place of having to respond to what the Judge wants. It's not back here because the Commission wants to reopen anything. It's back here because the Judge ordered something to be relooked at, okay? So, I want folks to be clear about the Commission is trying to respond to what the Judge ordered while trying to support why they came to that decision several months ago. Okay, I just want to be clear about that. Thank you. RAFFIPIY: Thank you, all. I understand the Applicant wants to make a statement. Applicant or representative, please come forth. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Planning Commission? BUNN: I do. FUKE: Yes. RAFFIPIY: Thank you very much. You may proceed. BUNN: Thank you. Congratulations, Mr. Chair and Mr. Vice -Chair. Greetings to the other Commissioners, Planning Department staff, Planning Director, and Deputy Corporation Counsel. Thank you very much for your time. I understand that this is a little difficult. I think somebody predicted back when we were going through the original hearings that be careful because this could come back, and here we are. Since we're here to discuss the decision and order, I did want to point out some things about it that Ms. Hall, obviously I didn't expect her to read the entire thing. You probably have it in front of you. It is Exhibit 1 to the Background Report prepared by the Planning Department. So, the first page is just an introductory paragraph, kind of setting up who is appealing what, what was decided. Then it addresses the issues in the same order as the Commission's May 201h 2018 decision, and just so there is no confusion, I'm referring to that as the original decision. So, the original decision addressed the SMA criteria first, and as does the Court's decision. So, pages 2 through 5 is basically the Court's legal analysis of why the Commission could not rely on Piilani's use of plastics as a basis for denying the SMA permit. That section ends at page 6. With the Court's conclusion at the end of that section, that portion of the D&O which denies the application for the SMA Use Permit based on HRS Section 205A-26(2), and the Commission Rule 9-11(e) must be vacated under the standards of HRS 91-14. And, you can ask your attorney what those standards are if you don't know. EXHIBIT B 11 It next goes into the, the analysis of the public trust doctrine, and it makes some very important points here. The Court was critical that the original Decision, after it recited the principles of the Kauai Springs case, which we all talked about numerous times here a year ago, it "the Commission then, in summary fashion, concluded that those principles militated against the grant of the SMA [use] permit. It is not clear, however, what findings of fact the Commission relied upon to make the mixed finding [offact] and conclusions of law." The Court pointed out that the Kauai Springs case talked about another very important duty when one is acting as a trustee of a public trust, and that is that, "When an agency or other deciding body considers an application for permits under circumstances that require the deciding body to perform as a public trustee to protect a public trust resource, the agency or other deciding body must make findings sufficient to enable an appellate court to track the steps that the agency took in reaching the decision." So, that's kind of part of the direction of the Court, and then the Court on the next page gave three specific examples of how the Commission's original decision didn't satisfy that requirement. The first one was that the Commission did not consider Piilani's proposed use in relation to other public or private uses. Now, why is that important? Because as we've talked about several times, every Hawaii case on the public trust in water, starting with the Waiahole case, set forth the test for how do you identify reasonable beneficial use, and it's a standard that requires examination of the proposed use in relation to other public and private uses. So, when the Court didn't see that, it was concerned about the reasonable beneficial analysis. It's second example was the Commission did not address the degree of risk of contamination but merely stated that there is a risk. You know, anybody can imagine a risk of anything until it can be okay, well, you know, there's a pretty substantial risk that this could happen. That's one thing. There was no evidence in the record, though, that would support a substantial risk. It was contrary to the evidence. And, that was really the Court's third point or the third example, which was the Commission did not respond to expert scientific or test technical opinion evidence presented by Piilani by pointing to contrary scientific or technical opinion evidence. Now, the Commission could not have done that because there was no scientific or technical evidence in the record that was contrary to what Mr. Nance said, I mean, he was the only hydrologist that testified. So, you know, a lay member of the public that said well this bad thing could happen because it happened somewhere else, that's—you can't equate that as, as being technical or scientific evidence. The Court did go on to note, though, and this was in the next paragraph, and it's kind of interesting. The Court was open-minded and said that's not to say that the Commission is wrong. They could very well be right, but we just can't tell from this opinion. We can't tell from your findings of fact and conclusions of law that what you're saying is true, because you haven't cited to things in the record that demonstrate that what you say is true. So, the Court did what it did, what the Court did in the Kauai Springs case. I mean it basically, and—and Ms. Hall read you the language from the Order, the Court basically said, I'm going to give you another chance to convince me that you've got this right and that the denial is EXHIBIT B 12 appropriate. I've told you needs to be fixed. I've given you examples. I'm giving you two more instructions. You can't rely on the use of the plastic, and you've gotta make clear findings that I can follow, and you've gotta make them from the existing record. And, if you can't get those kind of findings that would actually support the denial from the existing record, then the only thing you can do is reverse the original decision and grant the permit. That's essentially what the Court said. So, I want to take a look at the attempt to comply with that, and Sidney is going to hand it out. [Mr. Fuke passed out copies of the document.] I, too, shared Ms. Rohr's frustration with not being able to tell the difference what was changed. I have a secretary, though, and I could have her convert the document into a Word document that I could go through and compare it to the other. And, so I just wanted—so let me tell you what I've done to try to make this a little bit easier to see what's been revised. After I converted it to a Word document, I put it side by side with the original decision. You see the little numbers in red that are next to the finding of fact number and they are also next to the conclusion of law number. ROHR (by sign -in table): [To Ms. Jackson] Get a copy for the public! They can't submit things without a copy for the public KAY (walking from staff table to audience area): Ms. Rohr RAFFIPIY: Ms. Rohr ROHR: (near audience area): —file. KAY: (near audience area): I'll go make you a copy. ROHR: (from audience area) What? KAY (from audience area): I'll go make you a copy. RAFFIPIY: Continue, please. BUNN: Thank you. ROHR (from audience area): Okay, so BUNN: So, what I've done is ROHR (from audience area): —You are violating the ADA rules because I need it to follow along. Plus, they have to put a copy in the, that the public can read along with. Not just you. RAFFIPIY: Please continue. BUNN: Thank you. So, next to each finding of fact or conclusion of law, I identified the analogous finding of fact or conclusion of law from the original decision. Where the finding or EXHIBIT B 13 conclusion was changed, I indicated that change. So, just as an example, finding of fact one is derived from finding of fact one in the original decision except that some of the language in the original decision, finding number one has been deleted. And, you can see that that's the red language that has the strikethrough. So, there was a—and I also just noticed this morning when I was reading this on the plane again that that first date is wrong, and it was probably wrong in the original decision. Piilani's application was not submitted in 2019. It was 2018. So, findings two through eight are identical to the same findings in the original decision. Finding nine has some language deleted. Ten and 11 are the same. Findings 12 through 17 are new, and all they do is update the procedural history, so the original decision cut-off on the date it was made, and this updates the history since then. Findings 18 through 50 are identical, so you can just flip through a number of pages. There are no changes there. No changes until we get to finding 51. And, in finding 51 some of the language from the original finding 44, which is the one that corresponds, has been deleted, but you're going to see that language again soon. Finding 54 is a new finding. The original decision omitted the fact that, that Piilani was proposing to build a recycling and redemption center that would divert some plastic bottles from the waste stream. It also forgot to mention when we're talking about potential benefits and continues not to mention that Piilani has also proposed a $100,000 scholarship endowment fund, which I think is a benefit. So, that brings us up to 55 through 59, which are purportedly new allegations of harm. Most of these are either directly from the original opinion or derived from the original opinion with one exception that we'll talk about. Paragraph 55, though, or finding 55, says "Piilani's December 20, 2018 letter stated that contamination of the aquifer would occur if the pipe valve were not closed during tsunami." Now that's language, that's not new. That was extracted from finding 51, what used to be finding 44. So, that's been litigated by the Court. It's not a new finding. It was thoroughly discussed, but the more fundamental problem is that Mr. Nance's December 22, 2018 memo said no such thing. It's already in the record, but Mr. Fuke will give you a copy. [Mr. Fuke passed out copies. ] You know, some of you will remember when Mr. Nance was here testifying in person, and he said there were two things that could happen that they would not know until the well was actually drilled. Either the piezometric head of the artesian water would be higher than the ground level in which case the well would be free-flowing and wouldn't require a pump or the piezometric head would be lower than the ground level, in which case there would need to be a pump. Mr. Nance thought that the former condition, a free-flowing well, was far more likely. So, what Mr. Nance actually said about what would happen during a tsunami depended in part on whether the well was free-flowing or not. If the well was free-flowing which he though was very likely, there would be no issue. It would be completely sealed. There would be no way for water to get into the well during a tsunami. It's only in the condition where the well is not free-flowing that having a pump would require it to have a vent that would require it to have a valve. He's EXHIBIT B 14 described the valve as closing a hose bib, and if you just close the hose bib, the well would be sealed. He did acknowledge the possibility that if there were a tsunami at night and somebody were not on the site in time to close that thing, the hose bib, a modest amount of water would go down the well, and that it would be pumped out within minutes once pumping was resumed again. So, his conclusion significantly is, "There would be no permanent impact on the yield or the quality of water from the deep artesian aquifer" even if some water went down the well during a tsunami because it could be pumped out within minutes. Finding 56 is kind of a hybrid allegation of harm. We've talked aboutactually, in the appeal, it was discussed, and this was the encapsulated arsenic that's in the Wailoa River about a quarter of a mile away. Now, the original theory that was talked about in Court in the appeal was that somehow this, this encapsulated arsenic was going to somehow migrate all the way down a thousand feet, you know, through the aquiclude and somehow get into the artesian aquifer. Mr. Nance said that the possibility of that happening was negligible, and in any event, that would have nothing to do with Piilani's well. It may have happened already. I mean, if that were going to happen, if we drilled the well and found there were arsenic in it, it would obviously be abandoned. That's no use to us. We can't have arsenic in drinking water. The point was, though, that the migration of arsenic even if it could occur all the way down a thousand feet and through all these obstacles would have nothing to do with the well. It would happen or it wouldn't happen regardless of the well. So, that theory has been changed a little bit now, and now it's kind of been merged with the tsunami theory, and so the theory is that if there were a tsunami, then it could disturb the encapsulated arsenic, and remember encapsulated means enclosed. It's kind of sealed up. But, the tsunami would kind of shake that up, and then if the well was no free-flowing and had a valve and had a hose bib that needed to be turned off and somebody wasn't there to turn it off, the salt water, this time contaminated with arsenic could go down the well. It's really the same argument. I mean it, whether the salt water is just salt water or it's salt water that has managed to pick up arsenic from the river. It gets pumped out when the pump is turned on, and it goes away. I mean, it's, it's the same, same water. So, that's really the same argument. Finding 57 is actually the only new finding of fact. Finding 57 says that Piilani's December 20th, 2018 letter also states that during the drilling process, the drill string, consisting of the drill bit, heavy collar, and drill pipe, could twist off in the hole. The driller would try to retrieve the broken parts of the drill string; however, if unsuccessful, the borehole would need to be backfilled with cement in accordance with the rules of the State Commission on Water Resource Management, and that is indeed an accurate description of what Mr. Nance said in his memo. The problem is there is no contamination being described there. So, if the drill string breaks off, the first thing they would do is try to fish it out. They fish it out, there's no problem, there is no contamination, there is no issue. If they can't fish it out, what they do is seal the well, and what Ms. Rohr referred to as the very strict rules for well construction and pump installation in Hawaii, and they are very strict, it's the Water Commission's Hawaii well construction and EXHIBIT B 15 pump installation standards. In Section 3.2 of those standards, the commission points out that the objective of sealing a well and the reason they do it is it's basically to restore the hydrological and geological conditions that existed before the well—before the well was constructed. And, how do they do that? How do they seal a well? We have abandoned wells all over the State. How do they get sealed? By putting cement in them. I mean, the Section 3.4 of those same rules identifies the materials that are approved for sealing a well, and those materials are, and I'm quoting, "neat cement," I don't really know what that is, "sand -cement slurry, concrete, cement bentonite or bentonite pellets." So, if these are the materials that are approved by the Commission on Water Management for sealing a well, they, by definition, cannot be contaminants. They are restoring the geological and hydrologic condition by, by filling the borehole that existed before it was drilled, and that's that's what the Commission uses. Findings 58 and 59 are similar. I have a hard time making sense out of them. They're, they are critical of Piilani for not providing quantitative or scientific data on the effects of the contamination when, in fact, Piilani's expert testified that there would be no effect, no impact on the yield or the quality of water in the aquifer. So, I'm not sure how Piilani would be expected to provide scientific data on an impact that doesn't exist. That's the end of the findings of fact, so there's basically those five are additional, but most have been addressed before, and the Court has seen them. So, let's look at the conclusions of law that start on the next page. What I thought was striking was that all the conclusions concerning the SMA criteria have just been deleted. So, the proposed decision—should I stop? HALL: No, you're fine. BUNN: Okay. The proposed decision would rely only on the public trust doctrine and not YEE: —Hang on, Pam. So, if you want to have a conversation, please take it outside. I know we're nearing lunch but it's getting a little difficult to hear. Thank you. [Referring to members of the public having discussions while the meeting was going on.] BUNN: Thank you. So, the proposed decision would rely entirely on the public trust doctrine as the basis for denying the permit. It would not rely on the SMA criteria at all. And, if we look at the conclusions on the public trust doctrine, the first one is the same, conclusion 5. It's a restatement of the principles from the Kauai Springs case. And, then in the application of those principles, there is, there are more words added—let's put it that way. It's, it's not any clearer on the analysis and how it got from point A to B, and more fundamentally, it doesn't address the three specific issues pointed out by the Court. There is still no application of the reasonable beneficial use test mandated by the Hawaii Supreme Court, because there has been no examination of the use in comparison or in the context of other pub—excuse me, public or private uses. There is no assessment of the degree of risk of contamination but, again, merely stating that there is a risk, and the Commission has still been unable to point to anything in the record that is contrary to Mr. Nance's expert opinion. EXHIBIT B 16 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 Condition 11 is one that got a lot of discussion because of concern about what could happen in the event of a natural disaster. So, we revised the standard condition on emergency preparedness to require the emergency preparedness plan to include certain things. It would have to include actions to be taken and the parts and equipment necessary to take the actions to protect the well and the aquifer in the event of a tsunami, earthquake, sea level rise, or other natural phenomenon. And the reason I bring this up is because when we were talking in the appeal in court, and I think it might actually be in one of the original, in one of the comparison conditions, there was a finding of fact that it was responding to Mr. Nance's comment that, you know, the water, any contaminant will be pumped out in the first few minutes of pumping, and the comment was, "Well, what if the pump doesn't work anymore?" Well, obviously, we would replace the pump, but this condition would certainly, if the Planning Department and the Civil Defense Agency thought it was appropriate to require us to keep a spare pump in case a tsunami happens and the pump is flooded and we can't get it started, we would have a spare pump to drop in there so we could pump it out. Condition 12, I've just mentioned in passing, but we did propose a $100,000 scholarship endowment fund and also a recycling and redemption center. Adopting the Planning Department's Recommendation together with the conditions that have been agreed to on the record would just require a simple vote to do so. There would be no further findings and conclusions; there would be no more appearances before the Court; and Piilani respectfully requests that you do that. Thank you, and if you have any questions, I'm glad to answer them. RAFFIPIY: Thank you very much. Appreciate your time. You guys have any questions? Anybody have any questions? All right, thank you very much. At this time, I'd like to—go ahead. YEE: Michael Yee again, Planning Director. Because the original Applicant submitted my original Recommendation, I want to comment the first paragraph it reads, "Since this recommendation is made without the benefit of public testimony, the Director reserves the right to modify and/or alter this recommendation based upon additional information presented at the public hearing. This approval recommendation is based on the following findings." So, at that time, I made a recommendation. During the proceedings and stuff, there was never a question posed to me have I changed my mind. Okay? It wasn't necessary for me to answer that question. So, I just want to point out this was made at a certain date in time. Once the Planning Commission makes a determination, okay, it could go to Council for a vote and stuff and other things. Once the Planning Commission makes a decision, I support that decision. Again, my authority comes from the Planning Commission, so if they make a decision, I remain highly supportive of that decision because they are trying to take in all the points of view on the Island. So, I want to be clear because they handed it out, just because I made a recommendation then, that was at that point in time, okay? And, there was never a question posed if I had changed my mind since then or not. The Planning Commission has already made their decision, and that's what got appealed, okay? EXHIBIT B 18 RAFFIPIY: Thank you very much, Mr. Director. At this time, I need a motion to close out public testimony. REPLOGLE: I move that we close public testimony. AGUINALDO: I second. RAFFIPIY: It's been moved and seconded that we close public testimony at this time. All in favor say, "aye?" COMMISSIONERS: Aye. RAFFIPIY: Any opposed say, "nay?" [None.] All right, motion carried. At this time, I need a motion for action on this item. ROHR (from audience area): [to Ms. Jackson] Can you see this? Nothing to give your ADA Coordinator claims to communicate in writing! REPLOGLE: I move that— ROHR (from audience area): —You are violating my rights under the ADA REPLOGLE: that we adopt the proposed find ROHR (from audience area): I can't hear you! You're required to RAFFIPIY: Excuse me, ma'am ROHR (from audience area): communicate in writing. JACKSON (to Ms. Rohr in audience area): Excuse me, we can go outside. RAFFIPIY: Excuse me, ma'am— ROHR (from audience area): She's refusing to communicate in writing, and I have a hearing disability. I'd like it on the record that she won't write her answer. RAFFIPIY: Yeah, we need to maintain civil discourse so please respect the REPLOGLE: Should we wait or RAFFIPIY: Go ahead, Mr. Replogle REPLOGLE: continue? ROHR (from audience area): [Inaudible] EXHIBIT B 19 RAFFIPIY: Continue. ROHR (from audience area): I'm going to sue you! REPLOGLE: I move to adopt the proposed findings of fact, conclusions of law, and decision & order. RAFFIPIY: Any second? Motion on the floor. Nobody second? REPLOGLE: May I add something else? RAFFIPIY: Go ahead. REPLOGLE: I do this based on when we're talking about the public trust, all this here is the previous testimony when we heard this case previously before it was sent back to us. None of this has changed in terms of the public trust and what people are concerned about in terms of water in Hawaii. All this has been discussed in hereI could go on, but I won't. But, based on this, we as a Commission, have a responsibility to the public trust and that public trust my understanding is something that has come from way back in ancient Hawaii. The ali`i had a public trust to be sure when they set up ahupua`a that the people had the water, the food, the resources to survive. As when the overthrow happened, that public trust, I don't know if it slipped by the people that did the overthrow, but that public trust sifted through that time and is now part of the State of Hawaii Constitution. And, I don't mean to minimize or compare myself to an ali`i, but Governor Ige, Mayor Kim, we sitting on the Commission, are now in that position of having to determine what is best overall for the public, and to allow the water of Hawaii to be taken as if it were oil or a resource to make money off of, is not in the public trust best interest. Based on that[applause from audience], based on that, I encourage my fellow Commissioners to come along on this ride up the court system and back down if that's what it takes, but we need to stand for the public and this, these are not invalid concerns. They are not written by doctors or scientists, but people who live here, and as been stated a hundred times, water is life, wai is the most used word in the whole Hawaiian language, and there's a reason for it. Anyway, that's why I think we need to keep pushing this. Thank you. RAFFIPIY: Commissioner Clarkson? CLARKSON: There being no second, I would propose an alternative motion. I'd like to point out that I was the only person who voted against the original denial, and in that light, I'm going to—and there may not be a second, but we'll find outI'm going to move that the application be approved as conditioned by the original Department's conditions and as, with the proposed amendments to the SMA Permit from, agreed to with Piilani Partners. And, I won't speak to my motion unless there is a second. RAFFIPIY: Do I have any second? EXHIBIT B 20 AU: Second. RAFFIPIY: It's been the motion on the floor has been seconded. Any questions? Discussions? CLARKSON: So, here I'd like to speak in favor of my motion, please. One of the original concerns with this project was that water was being taken, public trust water was being taken and sold for private profit, and that's true. But, one thing to consider is, is that happens all the time every day, all over the State of Hawaii and that's the reason why much of the water is extracted. There are private wells all over the Big Island. That water is sold for profit to hotels, to residential subdivisions. In Kauai Springs, the Supreme Court said that where private, commercial use of public trust resources is encountered, extra scrutiny should be given. They had the opportunity to say, "no private use of water" but they didn't. They just said if the commercial, if it's a private commercial use of water, the agency should give extra scrutiny. That's what we're trying to do here. Now, what happens, in my opinion, when we give this project extra scrutiny, we have to compare it as Ms. Bunn said to alternative uses. So, let's think about the alternative uses for public trust water. Most public trust water is not used for drinking. It's not used for IV's. It's not used to replenish the body. Most public trust water is either put on plants or it's mixed with human feces and urine and shipped through an elaborate piping system to a facility where it is partially treated and then dumped back into the ground or into the ocean. So, if we were to deny a water bottling plant, but approve say an apartment building or a mini - boutique hotel, the surrounding property is all zoned Resort -Hotel, what we would be saying is it's better to take public trust resources, mix them and make them into sewage, than it is to take drinking water, additionally purify it, and put it in bottles for people to drink. So, that, to me, is a comparison that doesn't stand the—let's put it this way. I think the water bottling plant is providing drinking water at the highest and best use of a public trust resource. Second, where is the actual harm to the aquifer? Everybody is worried about this well, about a tsunami breaking off the top, tsunami salt water perhaps loaded with arsenic flowing down through the well and contaminating the aquifer. Let me just talk about that a little bit. The record refers to the many times where Piilani is going to follow the standards, the well construction standards for which every well must comply according to the Commission on Water Resource Management. Their, and it's also been referred to in the record, their standard says that pumps and pumping equipment and all installations of pumps and pumping equipment shall be constructed in such a manner as to prevent the pollution and contamination of the well from surface sources. They are very well aware of the potential for contamination. Piilani showed a picture of a well with the upper many feet cased on concrete to prevent surface water from infiltrating, and one thing that hasn't been brought up before, but which I think is relevant—I've only been involved in removing well strings and installing new well pumps a few times—but, just as all of these buildings around us have back-flow preventors. You see the big copper and steel check -valve systems that are at the outside of every building. Every well pump has directly above it a check valve that's a backflow preventer. The whole top of the well structure up at the surface could be open to the air, but that well water doesn't drain back. You could dump EXHIBIT B 21 anything in there. It's not going into the aquifer. There's a valve that's automatic, that's always there. So, the harm to the aquifer is practically impossible. It's no, certainly no more likely than any other well that would be drilled anywhere. Then, there's a condition of how much of the water are they taking. They're taking a fraction of one percent of the water that might potentially be taken --.2 percent I think it is. Two hundred thousand gallons a day. And this, one of the things in Kauai Springs is that we have to in our extra scrutiny, we have to say well, what are the alternatives sources. Well, this, this source here is the alternative source. It's below the underground injection control line. This is in an area where the State Water Commission says you can put injection wells there because we don't consider this an area where we need to preserve drinking water. This is, this is below, makai of the underground injection control line. Furthermore, this is a thousand feet down. MEDEIROS-GARCIA (from audience): If damaged, what, how you going repair `em? If damaged? CLARKSON: Let me justI'm speaking to my motion. I'm trying to convince the rest of the Commission it's going to be a difficult thing, because I got outvoted five to one or four to one last time, so, I'm trying to go through my reasons for why I think the permit should be, the application should be approved. So, if you go through all of the things that Kauai Springs says for us to look at, I see nothing that either, that applies, that would speak against this project. Now, I'm not a big fan of plastic bottled water. The Court has said not to consider the fact that the, the container the water might go in, but I am a big fan of pure drinking water. And, a lot of people are fans of exporting products from the State of Hawaii, that's one of the big problems that we have is with our economy is that we import multiple times more than we export. So, if we can get people in distant lands to buy little bottles of Hawaiian water for big prices like they're selling Koyo, they're selling bottled water to Japan, I, you know, it's not my favorite business, but I don't think that speaks against it either. So, anyway, that's my reasons for thinking that we should give them their permit, and I think eventually, the courts, the Intermediate Court and the Supreme Court, if it goes that far, would agree. RAFFIPIY: Thank you, Mr. Clarkson. Mr. Au? AU: So, comments to my fellow Commissioners. The reason why I seconded this motion is we, we live in a democratic country, and we have a process. So, this is, this is a step in the process. You know, let's go back to drilling wells. There's a lot of developments out there that have wells, and like my fellow Commissioner said, you know, there is always, you know, back-up plans, and every project, every well, every Special Permit that, that we as a Commission approve, we're not the deciding factor. There's other agencies that have to weigh in—Building Department, the Applicant mentioned about the Water Resource Commission or the water resource agency, so there's all these different things set in place that, that any project, any Special Permit, any developer has to go through. So, they still gotta go through more thingsso, EXHIBIT B 22 just keep that in mind. We're just a step in the process and, you know, I was sitting in the audience listening to all of this, and I read all 1,400+ pages of all of this, of all the documents, and I support the motion. RAFFIPIY: Thank you Commissioner Au. Commissioner Dela Cruz? DELA CRUZ: Okay, my issue is this. The Court handed down us an Order to actually only consider what was given to us earlier in the last statements, excluding plastics. My issue has always been on the contamination of the wells, of the what do you call, the aquifer, okay? It's not like you're just drilling through one. You're drilling through a couple of `em, okay? So, there's two types of wells, one is positive pressure, and one you're going to have to pump, okay? So, there's two big issues with that. On the positive flow aquifer, if you drill through it, the contaminant will not go inside because the positive pressure of the water will be coming out, but my issue is you're going through two aquifers. You're coming through the Mauna Loa and through the Mauna Kea. Once you hit the Mauna Kea, now whatever is coming out `cause there's no way you're going to make a complete perfect seal, okay, so it's going to leak. So, that leak when you're coming through the next aquifer, in my honest opinion, it's not pushing out, it's going to suck. So, I'm thinking it's going to go back out, but with that being said, we can only go off what was given as testimony for the last hearings that we had, okay, but, that is my concern with the contamination part of that. Other than that, I guess I'll be supporting the issue of what's going on right now. RAFFIPIY: Thank you, Mr. Dela Cruz. Anybody else? I want to make a statement. I'm a frequent user of parks taking my family, my kids to the parks, and I gotta say that I always enjoyed the serenity, the peacefulness of the parks. Along with what Commissioner Dela Cruz mentioned, I brought that up in that was one of my questions earlier on. And, every year for I don't know how many years that I've been participating in preparing the community for Merry Monarch, and one of the other things that I was looking at is, you know, the surrounding area, the complex where we hold our Merry Monarch Festivals. And, I know they always, our visitors always appreciate the natural faunas of this island, all the greenery that they look out and they see to turning that area into complete commercial area, you know, especially the park area where, you know, it's peaceful as is. So, I just want to say that, that the use of that park, I feel it needs to be, remain the way it is, where people can find peace, serenity, where they can go down and lie down. I see a lot of people bring their mats down, lie down, and just enjoy, enjoy their time, peaceful moments. So, I will not support the motion. If there are no other questions, I'd like to have the staff to poll the Commissioners. KAY: Thank you, Mr. Chair. If I may before we do that, Commissioner Clarkson, can you restate the original motion, please, to make sure that I have it correctly? CLARKSON: To approve the application for the SMA Permit with the conditions that were originally in the Recommendation for approval, together with conditions 8, 11, and 12 that were discussed and agreed to during the application process previously. EXHIBIT B 23 KAY: Thank you. CLARKSON: That were submitted today by Piilani Partners. KAY: Thank you. All right, so for the roll call. Commissioner Clarkson? CLARKSON: Aye. KAY: Commissioner Au? AU: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: I'm undecided. KAY: Okay, Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: Commissioner Replogle? REPLOGLE: No. KAY: Chair, pardon me, Commissioner Aguinaldo? AGUINALDO: No. KAY: And, Chair Raffipiy. RAFFIPIY: No. KAY: Okay, the vote is tied three to three. The motion does not carry. [Applause from audience.] FUKUCHI mom audience): Can I ask a question? RAFFIPIY: Sorry, no FUKUCHI mom audience): [Inaudible] I want to ask Piilani a question. HALL: Well, you can ask them afterwards if you'd like to talk to them. FUKUCHI mom audience): Oh no, I mean in front of you guys, especially [inaudible]. EXHIBIT B 24 HALL: No, it's closed, sorry. RAFFIPIY: I'm looking for another motion. REPLOGLE: I would go back to my original motion that did not get a second. I move to adopt the proposed findings of fact, conclusions of law, and decision and order. And, I see the difficulty in this whole thing because we are somewhat limited to what happened previously and told we can't talk about the plastic bottles, but if it would make anybody feel any better, we do realize that this plastic all breaks down, whether it ends up in the ocean, off of Taiwan, or Hilo, at some point it does, and when it becomes microplastics, it gets into our food system through a fish, the limu, the reef, all of that, and it ends up in us again. And, we as a species have over time diminished our planet by making these kind of poor decisions in terms of the plastic and other issues. But, the plastic at this point, it's not just a plastic bottle. We don't have a recycling system here. I know Piilani has offered it, but we're not doing what we need to do as responsible humans, maka`ainana, the people on the land, and based on those things, I think we need to send it back to the Court, and it will probably be back again. But, I think the bottom line in the end is that we should not be giving our water away. There's things happening in the climate, on the planet. Look at Australia. I'm not saying we're going to catch on fire, but, they have wells and aquifers that have been going dry, and we are way out here in the middle of the Pacific. The water is life, man. Anyway, that, myI don't know if it will be the final answer, but it will give us some breathing room to—let's send it back. Deny. Anyway, thank you. RAFFIPIY: Do I have a second? AGUINALDO: What is the motion? REPLOGLE: The motion is the one I'm reading here. I move to adopt the proposed findings of fact, conclusions of law, and decision and order as presented by our Corp. Counsel and attorney. RAFFIPIY: Looking for a second. AGUINALDO: Malia, so what he said, that's going back, right? Getting confused. HALL: I can't predict the future, but most likely it probably will, but I will say to the Commission that if no decision can be made today, that the rules basically dictate that if you don't come out with a decision, that it's a denial. So, I'll tell you that much. In Rule 9[11](f)(1), if the, "In the event the Commission fails to render a decision to approve or deny within the prescribed time limit, the request shall be considered denied." So, those are your options basically today if you guys can't come to a consensus. AGUINALDO: So, to the public what our Vice, our Vice -Chair, John, indicated, truthfully what he said is I truly believe in my heart what he said, how he spoke with his feelings, I going second on that. EXHIBIT B 25 RAFFIPIY: It is moved and second[ed] that we adopt the proposed findings of fact, conclusions of law, and decision and order. Any questions? AU: I do have a concern. So, the motion is to approve the draft, the draft findings of fact, conclusions of law, and decision and order, and I do have some issues with it, so since the motion was made, I'm just going to bring it up really quick. So, the Court brought it back to our Commission, and one of the two points was we cannot use the basis of plastic bottles, so I went back on it, and I looked at it, and I counted how many times the draft said plastic bottles, so if you guys want to refer to it really quick, and I know we're going through lunch and you guys aren't happy that I'm bringing this up, but, let's go to page 4, number 17 on the top. So, Judge Nagata explained what the decision is and there is two items that the judge explained. So, Commissioners, are you on it? So, the draft decision and order, I'm on page 4. HALL: What paragraph, sorry? AU: So, at the very top, what Judge Nagata said. HALL: Oh, sorry, up there. AU: And, the first thing Judge Nagata said was, "do not rely on Piilani's use of plastic bottles." So, I went on and I counted how many times plastic bottles was stated in this document. So, on page 5, it says, "plastic bottles." I don't have any issues with that. And, it says "plastic bottles" again on page 10, item no. 49. It says it twice in that same sentence. I don't have issues with that, because it's not speaking to what the Judge is saying. But, the last one, where it does say "plastic bottles," I have an issue to that. On page 13, item no. 8, Principle 2, it goes on and it reads and the last sentence on line item no. 8, Principle 2, it says, "Further, the use of plastic water bottles is also not consistent with maintain water in its natural state or protection of domestic water use." I would like to delete that sentence. If we are going to approve this document and send it to the Court, or, excuse me, if you are going to approve this document, I think we should take that out, because the whole point of the decision on the Court is saying that we cannot base our decision, base off of plastic bottle use, and it does say "plastic water bottles" [bottling] again on the final page at the very top, and I would like to change that. Take out "plastic" and just put "water." RAFFIPIY: Are you, are you offering an amendment to the motion? AU: I am, if the first and the second is agreeable, I am offering an amendment, and is that in line, Malia? Can we do that? HALL: Yeah, I'm just trying to keep along with you so I can like make your amendments on the fly, but so can you go back to the ones you actually want changes? EXHIBIT B 26 AU: Okay, so the one, the sentence I want to delete is on page 13, the last sentence on line item no. 8, where it says Principle 2. HALL: Okay, "Further the use?" AU: Yes. HALL: That one, okay. I'll just highlight it. AU: And again, fellow Commissioners, the reason I want to delete that is because the whole purpose of the Court sending this down to us is that we cannot, we don't want to say that plastic bottles is the reason why we're denying it, right? That's my, that's my thinking. And, also on the last page, it's a continued sentence from the first page, but I would just like to delete the word "plastic." TAMASHIRO (from audience): Do you have proof that the State Court is lawful here? HALL: The very last, the last page like page 14? TAMASHIRO (from audience): Hello? AU: So, page 13 going onto page 14. So, it just says "Every" and then on the top, it says "plastic water bottling." HALL: Oh, okay. AU: I would like to delete "plastic" and just put "Every water bottling facility adds to the...." HALL: Okay. RAFFIPIY: Commissioner Replogle, are you okay with that amendment to your motion? REPLOGLE: Yes. RAFFIPIY: Any other questions and comments on the amendments? YEE: Okay, I'll lean in a little bit more, but kind of from a different perspective. We have to remember that Hawaii State is still a young state, right? And, so trying to create the body of legal work around public trust doctrine is still in its infancy of sorts, especially in the State. And, so the only way we build that body of work is by having cases go, right, to get reviewed of appeals, through State Supreme Court, okay? Right now, we rely one one case. Kauai Springs seems to be the one we keep referring to. I'm not advocating that we just send cases for the sake of sending cases, but I also understand like we don't have a lot to lean on a lot of times. We're still trying to struggle in this State to understand where our responsibilities are, and so there are times around this case that there are many good points to this discussion. People are pretty emotional from it, but from clearly wearing a planner's hat, I appreciate that people are testing EXHIBIT B 27 what's out there right now, and the Commission took a very courageous vote the last time, and there's some sentiment that may be changing that a little bit here, but I thought that was a good direction. It was Hawai` i Island stepping out there to see where this could go, and so from just wearing a clearly Planning hat, that's not a bad thing when that happens. RAFFIPIY: Thank you, Mr. Director. CLARKSON: I just have a question about process. RAFFIPIY: Go ahead. CLARKSON: So, if this motion passes and these findings are sent back to the Third Circuit, and the Third Circuit finds them unconvincing, what happens then? HALL: Well, in your scenario, if they find them unconvincing then the Court has either, has basically a couple choices. One is to do what they've already done and send it back to you and ask you to basically hash it out again or in the other option is the Court can reverse your decision and demand or order this body to approve the permit. CLARKSON: Okay, so I just want to point out that we're taking a risk here by sending what I consider to be weak findings to the Court, that if they reverse our decision, all of the negotiated conditions about residential noise, $100,000 scholarship funds, all go out the window, and our decision will be reversed and the permit will be issued, of course, subject to court challenge, without any of those. So, just keep that in mind when— HALL: —You don't know if that's true— CLARKSON: Well HALL: I don't think the Court would remove the conditions. That's all I would say, is that I think the conditions will still be attached to the approval, but, again, that's up to the Court. CLARKSON: So, the conditions may or may not be attached to any reversal that might result. RAFFIPIY: Any other questions or comments? AU: Mr. Chair, I'd like to revise my change to Commissioner Replogle and Commissioner Aguinaldo that I want to delete two full sentences. So, delete that, the first one that I said. Further, the use of plastic water bottles is also not consistent with maintaining [maintain] waters in its natural state or protection of domestic water use" and delete the other sentence that starts on the bottom of page 13 that says, "Every plastic water bottling facility adds to the cumulative problem of plastic accumulating in our landfills, streams, and ocean. Just delete that entire sentence, and the reason for that is becauseso, this, this order was, this Court Order was brought down to us saying that we have to keep plastic water bottle use or plastics out of it, so I believe it will make our case stronger if the Applicant decides to take it further. Follow me, guys? EXHIBIT B 28 RAFFIPIY: Just so that I'm clear, so, you're still striking out that last sentence of paragraph 8 and then you also offered to strike out that entire sentence that starts on page 13 and HALL: Paragraph 12 RAFFIPIY: Yeah, of paragraph 12. AU: Yes, and ends with "ocean." So, that one sentence that starts with "Every" and ends at "ocean." RAFFIPIY: It's been amended. HALL: No, not yet. He has to agree to the amendment. RAFFIPIY: It's being proposed that we amend—you okay with that— REPLOGLE: No, actually, I'm not because in reality, even if the Court said not to use the word "plastic bottle," the fact is that the landfills and the plastic getting into our environment, and as I mentioned earlier, the result of the plastic breaking down into microplastics, it's there, whether the Judge thought so or not. It is a reality, and I don't think we should take that out. RAFFIPIY: You're okay with his first proposal? REPLOGLE: The first one I said okay. RAFFIPIY: To strike out that just "plastic" in the REPLOGLE: That's fine. But, this, the one he just mentioned, read about the landfill and that's a reality, that plastic bottles are, they're there. The Court should recognize it as well. Not that I'm superior to the Court, but. RAFFIPIY: Thank you. Commissioner Aguinaldo, do you have anything to say that AGUINALDO: No. RAFFIPIY: Commissioner Au? AU: Yeah, I didn't make the first or the second so it's really up to the first and the second. I'm just making a comment to help us be stronger, making the best vote we can, and I know with this issue, I just went to the other extreme, but I just want to make our decision the best decision because whatever the Applicant does, whatever the public does, whoever moves forward with our decision, you know, we just want to make it as strong as possible. REPLOGLE: Thank you. EXHIBIT B 29 RAFFIPIY: Anymore discussion? AGUINALDO: No. Close `em. RAFFIPIY: Okay, we're going to go ahead and—Commissioner? REPLOGLE: No, I'm waiting for the vote. RAFFIPIY: Okay, can you conduct the vote, please? KAY: Thank you, Mr. Chair. Just to clarify, so we're going on the original motion and second with the deletion of one sentence related to plastic water bottles. HALL: And, also in paragraph, conclusions of law, number 12, second to the last sentence, they're deleting the water, I mean the word "plastic" before water. KAY: Okay, all right, thank you, Mr. Chair. Commissioner Replogle? REPLOGLE: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Au? AU: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: No. KAY: Commissioner Clarkson? CLARKSON: No. KAY: And Chair Raffipiy. RAFFIPIY: Aye. KAY: Thank you, Mr. Chair. Motion carries four to two. RAFFIPIY: Thank you very much. EXHIBIT B 30 The discussion ended at 1:16 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 31 EXHIBIT B