2019-02-07 Hearing Transcript - Piilani Partners LLC SMA 18-070

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CLARKSON: Are there any further questions for the Applicant or their representatives? REPLOGLE: Not a question, but thank you. Good information. NANCE: Okay, thank you. CLARKSON: All right, at thank you very much. Please be seated. At this time, we have I'm going to do this to—we have ten people signed up to testify, but before we get into public testimony, I'm going to ask the Commission to make a motion, for somebody to make a motion to go into executive session to discuss a letter we've received from our legal counsel regarding two aspects of this case, and I wanted to do that. In order to do that, everybody would have to leave the room. So, I'd like to coordinate that with a, with a lunch period so that you all leave, we have our executive session, and then we come back at 1:30 for public testimony. Is there anybody willing to make that motion for executive session? KANAKA`OLE (from audience): Is it about personnel? [Inaudible.] BUNN: I'm sorry, Mr. Chair. Maybe there is a misunderstanding? I do have a little bit of wrap- up. Maybe five or ten minutes. I'm happy to do it after lunch. I'm happy to do it now. But, I just had a few more things to say after, after questioning Mr. Nance. CLARKSON: Please proceed. BUNN: Thank you. And, I will be brief. When we were last here in December, we discussed the Public Trust Doctrine and the fact that it requires the Commission to both protect the natural resource and to promote the use and development of the resource. I wanted to talk just a little bit today about the Kauai Springs case, which was in some ways a very similar case and in some ways very different. As in this case, the Kauai Springs case concerned an applicant who was seeking to increase the volume of water it was using in a bottled water plant. Also, as in this case, the source of the water was not in a designated water management area designated by the Water Commission, so it wasn't subject to any permitting requirements. Also, unlike this case, the water that was the source in the Kauai Springs case had a connection such that the more water that the applicant used, the less water that would be flowing in the streams. So, there were several differences. Also, and this brings up something I wanted to mention here, in the Kauai Springs case, the applicant didn't have correlative rights to use the water. The applicant—the water source was not on the applicant's property. It was on somebody else's property, and it was delivered to the applicant through a plantation ditch system basically. So, there were those differences, but I did want to, and I'll provided it to staff and Corporation Counsel, I do have with me today documentation establishing Pi`ilani's right in terms of having correlative rights to use water from that aquifer. But, what I wanted to focus on in the Kauai Springs case was the Hawaii Supreme Court recognized that, you know, having, having agencies other than the Water Resource Management Commission, you know, applying the EXHIBIT D 20