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

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Public Trust Doctrine, required a little bit of guidance. And, so the court in that case set out a framework, and what it basically did was it distilled the principles from all its Public Trust Doctrine cases to come up with a framework of what the Commission should be asking and how the Applicant should be responding. So, the overarching principle that the court pointed out was, and I'm quoting, "the agency's duty and authority [is] to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial use." So, that's the dual mandate that we discussed. The second principle was that the agency had to determine whether the proposed use would interfere with any of the public trust uses, and again, the public trust uses are maintaining water in its natural state, the protection of domestic use of water, in other words drinking water, the protection of the exercise of traditional and customary Hawaiian rights, and regulatory reservations. I did want to point out that the maintenance of water in its natural state is primarily applicable to surface water, and that's because leaving water in a stream promotes uses that, that the State and the State Water Code has determined to be in the public interest. So, in addition to public trust uses that I just discussed, leaving water in the stream also contributes to the protection of fish and wildlife, the maintenance of scenic beauty, public recreation and navigation, and those are all addressed in the policy statement of the Water Code. Leaving water in an aquifer or letting it discharge in the deep ocean, it doesn't have the same type of impact as leaving water in a stream. It doesn't accomplish any of those purposes. So, that was that. The next principle the court raised was that the agency should apply a presumption in favor of public use, access, enjoyment, and resource protection. The water we're talking about here, it's available, the Mauna Kea water. Nobody, there is—we're not competing if this is granted, we're not competing with anybody else's use of that water. We're using such a small fraction of the sustainable yield that there is plenty still available for any kind of public use or enjoyment. The agency needs to evaluate on a case-by-case basis and not grant vested rights. Pi`ilani isn't claiming any vested rights, and certainly the Planning Commission is scrutinizing this on a case-by-case basis. The next is that the proposed use has to be balanced, or I'm sorry, viewed under the reasonable beneficial use standard which requires examination of the proposed use in relation to other public and private uses. And, that's, that's somewhat repetitive. I mean, we're talking about sustainable yields in the hundreds of millions of gallons of water, and our proposed use is depending on which aquifer it's in. It's .1 percent or .2 percent, and that's after subtracting for the projected future use. So, it's a very small amount. It's not competing with anybody's use of water. Some of the other ones here aren't applicable at all. The permit applicant, and remembering that we don't really need a water use permit here, but must demonstrate the priority of draining water from public streams to satisfy its needs. We're not planning to take any water from any stream, and as Mr. Nance testified, our pumpage won't affect the flow in any stream directly or indirectly. EXHIBIT D 21