Loading...
HomeMy WebLinkAbout2019-02-07 Hearing Transcript - Piilani Partners LLC SMA 18-070WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 7, 2019 A regularly advertised hearing on the application of PI'ILANI PARTNERS, LLC (SMA 18-000070) was called to order at 11:19 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Gilbert Aguinaldo, Joseph Clarkson, Donn Dela Cruz, Donald Ikeda, John Replogle. ABSENT & EXCUSED: Thomas Raffipiy. ALSO PRESENT: Michael Yee (Planning Director) (to 2:29 p.m.), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner), Alex Roy (Planner) (to 12 p.m.), Jessica Andrews (Planner) (to 12:30 p.m.), and Sarah Hata-Finley (Commission Secretary). And 15 members from the public in attendance. APPLICANT: PI'ILANI PARTNERS, LLC (SMA 18-000070) Continued hearing on an application for 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. CLARKSON: Okay, the next item on the agenda is carried over from a previous meeting. It's an application from Pi`ilani Partners, LLC. At this time since the application has been ongoing for a long time, I wanted to question Commissioner Dela Cruz as to whether you've had an opportunity and have read the entire record since this is your first exposure to this application. DELA CRUZ: Actually, this is my second, but I have read everything that I needed so far. CLARKSON: Okay. DELA CRUZ: All of the minutes and stuff Thank you. CLARKSON: Thank you. At this time, I'd like to review this application, have staff review it briefly with us. KAY: Okay, thank you, Mr. Chair. If I can turn your attention to the screen. The original request was there were originally three requests for this particular project. The first was an amendment to Change of Zone Ordinance 92-122, a revocation of Special Management Area 10V1111.11 11 Use Permit No. 334, and a new Special Management Area Use Permit Application 18-70. Just to kind of refresh our memory, on December 6 of 2018, at that hearing, we voted on the revocation of the old Special Permit [sic] and to move the time extension request, the amendment request, to County Council with a favorable recommendation. So, really, I'll go over this quickly, but we'll focus mostly on the new SMA request. Again, just for context, the subject parcel is located in the South Hilo District of Hawaii Island; more specifically, in the Waiakea area. For reference, we've got Manono Street running generally pardon me, Manono Street running generally north -south through the slide, and Pi`ilani Street running east -west. For context, we've got the Ho`olulu Complex here, the County's Ho`olulu Complex, and the State, the Wailoa State Park here on the left. Okay, so as we said, the first two were taken care of in December. The third request that's still on the table is an SMA Use Permit to develop a potable water well and bottling facility with related improvements on an approximately 31,000 -square foot portion of the subject property. The proposed project consists of a supply well, two 100,000 -gallon storage tanks less than 20 feet in height, a booster pump station, a 1,500 -square foot bottling plant/warehouse, a 560 -square foot office building, both less than 20 feet in height, and associated parking and landscaping. So, in terms of the new SMA Permit, in the early 1990's, the State conducted a drilling project in the area and found a fresh artesian water source to the depth of approximately 1,000 feet. The Applicant hopes to harvest this potential resource at an initial draw of a 100,000 gallons per day and based on market demand, increase to 200,000 gallons per day. The bottled beverages would be produced and stored on site and distributed to various local and non -local markets. County zoning for the subject parcel is Industrial, Limited Industrial twenty—twenty. The State Land Use designation for the subject parcel is Urban, and the General Plan Land Use Pattern Allocation Guide Map designates the parcel as Industrial. Again, the parcel is fully within the Special Management Area; hence, the requirement for a Special Management Area Use Permit. CLARKSON: Excuse me? KAY: Yes? CLARKSON: I just, I just—could you go back to that slide? KAY: Mm-hmm. CLARKSON: Why—do you know why the SMA area jumps over at that intersection? Why the property across Pi`ilani Street is not in the SMA area? KAY: You know, I don't know the answer to that. These are just based on the lines that were produced for the SMA so I'd have to do some research as to whether or not there's some justification. CLARKSON: Thank you. EXHIBIT D 2 KAY: You're welcome. Here's an aerial photograph of the subject parcel and surrounding area. Again, on the left hand side is Wailoa State Park. On the right hand side is the Ho`olulu Complex with Manono Street running north -south and Pi`ilani Street running east -west through the slide. Currently, the subject parcel is vacant of any improvements, and it is in its vegetated state as indicated in the aerial photograph. Here's the Applicant's site plan. On the subject, on the left-hand side is a zoomed -out version with Pi`ilani Street on the left-hand side of the slide. Oh, pardon me, Pi`ilani Street on the right- hand side of the slide, and this road here is a proposed extension to Mililani Street which is right now not constructed. So, the subject parcel is located on the corner here, and the portion of the parcel that will be used for the bottling plant is indicated on the right-hand side. It's zoomed in a little bit more with Pi`ilani Street again on the right-hand side. You can see the warehouse indicated here along with the pump station, the proposed tanks, and small office building and associated parking, and also indicated here is some landscaping as well. Here are elevations for the exterior of the warehouse as well as the exterior of the office. This kind of shows just the office here in relationship to the height of the proposed warehouse and vice versa with the office here shown and also what you'd see in terms of the warehouse behind it. Here are some photographs of the site. Here's a view of the property from across Mililani Street. On this side, Mililani Street is already developed. It's on the other side where it's not developed, but here's the subject parcel here in the upper portion of the slide, upper portion of the photograph. Again, a view of the property from across Pi`ilani Street. Again, you can see it's unimproved and heavily vegetated. And, a view of Mililani Street from across Pi`ilani Street. This is heading more toward Puna. The reason that we had this is just to show the proximity to Dr. Camblor's office who has written in opposition to the project. I just wanted to show the proximity in terms of where the subject parcel is, generally in this area, and his office. Here is a view of Pi`ilani Street looking, pardon me, looking east toward Manono. The subject property would be on the left-hand side. Mililani Street to the right here, and a view of Pi`ilani Street looking west toward Wailoa State Park with the subject property being on the right-hand side. So, again, with the other, with the first two items kind of dealt with already, the Planning Director maintains his approval recommendation for the new SMA Permit. Since the last hearing in January, there have been severaloh, pardon me, December, I believe, there have been several pieces of testimony, written testimony that have been distributed electronically to the Commission. And, then, I think this morning or yesterday and I'm not, you've gotten it, there were another couple of pieces of testimony as well as two documents from the Applicant. One is a set of proposed amendments to the SMA Permit that reflects some of the discussion that took place the last time we met on this project, and it's just aas a refresher. And, then second, the exemptions from the Wailani project with the understanding that the Applicant would be seeking similar exemptions for this project as well, and that's exemptions from [HRS] 343. I'll let the Applicant kind of address that. And, then there are a few other pieces of written EXHIBIT D 3 testimony that we've just gotten in and copied and should be distributed to you shortly. There was one from Cory Harden and then two other pieces that should be coming around to you right now. With that, that's what I've got here. Any questions on the refresher? Oh, sorry, there was one other thing. This morning, the Chairman asked me to provide a slide with some discussion of the underground injection control line and what that meant. So, I pulled a map from the Department of Health website, and this is the Safe Drinking Water Branch that regulates that UIC line. As you can see here in the star is roughly where the subject property is. On the left-hand side of this red line is that underwater injection control line. So, areas below or makai of that line, the Safe Drinking Water Branch determines that those underlying, the underlying aquifer is not considered a drinking water source. There is a wider variety of wells allowed. Injection wells still need a UIC permit or permit exemption, and permit limitations are imposed. Above or mauka of that UIC line, the underlying aquifer is considered a drinking water source. There are limited types of injection wells allowed. Injection wells need a UIC permit or permit exemption, and permit limitations are imposed, and requirements are more stringent. These bullet points here came directly from that website. With that, I'd be happy to answer any questions that the Commission may have on this refresher. REPLOGLE: I have— the line, so makai of the line is what they refer to as undesignated, a water source and above it is designated, meaning that's our drinking water and below it is considered a free for all? KAY: According to the information on their website, that's correct. The area makai or below that line is not considered a drinking water source, and again the subject parcel is located in an area makai or below that line. This information was also available in the Applicant's, the application with their environmental study that was included in that and also in documentation from the Department of Health verifying that that's the case. REPLOGLE: Thank you. KAY: Thank you. IKEDA: Can you repeat that? I missed it. You're saying that the water source is not a drinking potable source? KAY: Right, so the Department of Health, Safe Drinking Water Branch does not consider areas below that line a drinking water source. So, areas above or makai that line, of that line would be considered a drinking water source and, therefore, there's more limited types of injection wells, requirement for a permit, and more stringent limitations or conditions imposed on those permits to protect what they consider a drinking water source. REPLOGLE: That does not mean that the water below that line is bad. It only means that it's not designated as drinking water. EXHIBIT D 4 KAY: So, the information I'm providing to you is based on, that the limited understanding I have of this off of their website, and again, it was this morning that I was asked to provide this— REPLOGLE: No, I understand KAY: I understand, I understand your point. I can't really comment on that one way or the other. REPLOGLE: Okay, thank you. KAY: All right, thank you. REPLOGLE: I guess what I was getting at is it's an administrative sort of decision not necessarily based on whether there's good water there or not. KAY: Correct, that's my understanding. REPLOGLE: They put a line on the map and said we'll get water from here but not there. KAY: That's correct. REPLOGLE: Thank you. KAY: And, mostly it's about underground injection wells, and so below that line, it's more underground injection wells, permits are probably easier to get because they wouldn't have an impact on what they consider a drinking water source. Thank you. REPLOGLE: Thank you. CLARKSON: Any further questions for staff? If not, will the Applicant or the Applicant's representative please come forward? For those that are not already sworn in, would you please, please raise your right hand? Do you swear or affirm to tell the truth on this matter before the Commission today? BUNN/FUKE/NANCE: I do. CLARKSON: Please proceed if you have any additional information or comments to present to the Commission. FUKE: Sure, I'll be very brief. I mean, we were kind of like playing tag teams on this, but I've kind of the consistent person all the time. The first time, I think was Mr. Nance and myself, and the second time was Ms. Bunn and myself, and now, all three of us over here, and hopefully having all three, we'll be able to answer all the questions that the Commission, the Commissioners may have. You know, before turning it over, you know, because this is really EXHIBIT D 5 going to be Ms. Bunn and Mr. Nance's show, but I'd like to kind of like initially summarize what I perceive as being the issues to date and respond to some of them. I think that the issues have been, you know, things like, you know impacts to the neighbors whether its traffic or noise; the use of the plastics; the quality of the water due to the proximity of the former Canec plant; community give -back; the applicability of Chapter 343 relating to EA and EIS's; the nature of the aquifer, whether it's going to be degraded, whether there's potential cross -contamination; impact to the ocean water. Most of these will be addressed by Ms. Bunn and Mr. Nance, but on some of the other issues, I kind of wanted to make some comments. First, on the area of traffic, in my letter of December 24, I think I mentioned that, you know, based on a 100,000 -gallon per day extraction that the estimated truckloads was two. I was kind of like misinformed on that, and after doing further research, it was closer to like six or ten, but six or ten movements at the most, and they probably would occur during the non -peak hours and, you know, staggered. So, it's not like all six coming in or ten coming in at one time. Relative to the noise issue, we had already suggested that as a proposed condition, that the Applicant would be willing to accept the condition, and, you know, we passed it out. I think the staff passed it out. It's Condition No. 8 basically stating that the operation would be limited to the residential noise level. On the matter of plastics, unfortunately, this is something that this one Applicant cannot, cannot really address. I mean it's like the whole issue of plastic straws, plastic bags, Styrofoam. I mean, you know, there has to be some generalized legislation to ban or modify that, but until that occurs, you know, the Applicant can only utilize whatever is there and conform with prevailing laws. However, he's prepared to make a commitment if and when there are biodegradable alternatives, you know, available, then that's what he would intend to use. On the issue of quality of water due to the proximity of the former Canec plant, Mr. Nance will kind of explain that, you know, the well is considerably below sea level, but more critically, we did have a phase one environmental study done on the prop you know, on the property which was made part and parcel of the application. And, basically, the environmental report concluded that there was, really like not going to have any, any such an impact. Furthermore, if you're going to have like any, if you're going to sell water, then obviously you have to be subject to the State Department of Health regulations, and they're not going to authorize the sale of any water that's contaminant. In terms of the community give -back, while it's legally questionable whether such an imposition can be made, if the Commission determines that it's legal and it's appropriate, the Applicant already has a proposal and is willing to commit to setting aside a $100,000 to be donated to the University of Hawaii Foundation expressly for the purpose of, you know, allowing students to get scholarship in the area of marine sciences, environmental studies, geology, hydrology, and so on and so forth, and that's kind of reflected in the, what I had submitted earlier as far as new Condition No. 12. And, of that, I'll kind of like defer it to the Commission and rather if you wish to proceed with the approval of this with that added condition, then, and further if you find it to be legal and appropriate, then from the Applicant's standpoint, he's prepared to accept it. EXHIBIT D 6 Other than that, I'm going to at this point in time turn it over to Ms. Bunn and Mr. Nance. You might have to sit . BUNN: Okay, thank you. Good morning, Mr. Chair, Vice -Chair, Members of the Commission and staff, Corp. Counsel. The last time I was here, we discussed a bit the Public Trust Doctrine and its dual mandate of protection of the resource and maximum reasonable beneficial use. This time, I'd like to address perhaps a little bit more specifically the framework that the Hawaii Supreme Court provided in the Kauai Springs case to assist agencies when those agencies are applying the Public Trust Doctrine. Excuse me, application of that framework, though, requires a little bit of understanding of some technical issues, so I'm going to ask Mr. Nance here to help. I'm going to ask him the questions that I believe are relevant to the inquiry and then try to plug his answers into the Kauai Springs framework. I'll also explain briefly, because I've addressed in a letter, why I believe no environmental assessment is required for the project. If you have further questions for Mr. Nance when I'm done that I didn't think of asking, of course, he will be available to answer them. So, with that, and Mr. Nance, for any question, if you're more comfortable illustrating your answer, we have the easel there and you have the markers. Could you tell us first please a little bit about your background? NANCE: Hi, I'm Tom Nance. Working as a private consultant primarily in well and water system development. I started in 1972, that makes me in my 47th year of doing this kind of work. Over that period of time, I have designed, supervised construction and testing and, as appropriate, designing pumps that went into them, probably, nearly 400 wells throughout the State of Hawaii, including more than 50 on this island, and overseas in the Pacific and Asia probably between a 100 and 200 more wells. Those are wells of all types—drinking water, irrigation supply, industrial cooling, disposal wells of all types, monitor wells of all types. I have done of number of the municipal wells for the Department of Water Supply here, both in direct contract with the Department and have two on-going contracts at the moment, for example, and also for four developers designing wells to County standards that are dedicated to and incorporated in the Department of Water Supply system. BUNN: Thank you. Before we get started on the Pi`ilani project specifically, could you explain what the significance of is of the UIC line? NANCE: Well, as a staff member indicated, it's a, it's a separation between what they believe groundwater that could be converted to a drinking water supply versus it's too salty or for some other reason not appropriate, and that line typically by the regulation is actually, should be drawn not just where potable water exists but where even slightly brackish water exists that could be converted to drinking water with financially feasible reverse osmosis, for example. You can put drinking water wells makai of the UIC line. You do have to go through a process with the Safe Drinking Water branch to allow neighbors to comment on that because once you have a drinking water well in a location, they draw a thousand -foot radius around it and that limits what you can do for wastewater disposal in that area. It's a two-dimensional line and, by EXHIBIT D 7 the way, it's also not exactly hydrologic. It's, you know, it follows a roadway, for example, so it's identifiable geographic things that, you know, in a lot of cases, don't actually have, don't actually reflect the groundwater conditions. The other thing is it's two-dimensional. At the site that we're going to drill, we could very well run through at the start Mauna Lani [sic], Mauna Loa lavas, and likely that water is brackish to saline. What we're going to be tapping which I'll be illustrating in a minute is water that is in the Mauna Kea lavas that are 900-1,000 feet below the ground surface in that location. So, the UIC as drawn is two-dimensional. It doesn't look to the situation that where we've got where the drinking water exists makai of that line but at great depth in the Mauna Kea lavas. BUNN: Thank you. Could you please describe your involvement with Pi`ilani Partners' proposed project? NANCE: I got approached to provide a design for the well, to do the permitting with the State Water Commission to get a well construction pump installation permit and then to provide the kind of information that I'm going to be providing today. BUNN: Thank you. Mr. Nance, I'm showing you something that I downloaded from the website of the Commission on Water Resource Management. It identifies aquifers on this island, and I believe the Commissioners now have copies. Could you please identify the aquifer from which Pi`ilani Partners proposes to draw water and explain how that aquifer was formed? NANCE: Okay, first, cartoon, if you'll bear with me. [Mr. Nance illustrated on an easel.] The boundary on that thing between the Hilo Aquifer and the Onomea Aquifer is the surface contact between those two lavas, and Mauna Kea being the older mountain, lavas come down like that. The Mauna Loa lavas being, came across and banked against it, and the boundary between the Hilo, Hilo Aquifer and the Onomea Aquifer is that surface contact. Depending on where you are if you're down near the shoreline, it's 10 -foot elevation. If you go up the Saddle Road to the Saddle Road Well A, which I'll discuss subsequently, this surface contact actually has nothing to do with what's happening in the groundwater at depth. It was a convenient way to draw a line when you didn't have the information that goes into that. But, you can drill a well here that taps into the Mauna Kea lavas, and the State Water Commission because it's on this side of the line will call it in the Hilo Aquifer, and they will count the amount of water taken out of these Mauna Kea lavas as having been extracted from the Hilo Aquifer even though the Hilo Aquifer typically is the Mauna Loa lavas and the Onomea Aquifer is the Mauna Kea lavas. So, if I talk about how this thing—the details I'm going to, the details I'm going to give you now are based on the two deep boreholes that were done '93 and '99 by the Hawaii Scientific Drilling Project. One of them, the 1993 well that extends about 3,000 feet was close to, was close to where the Hilo Breakwater comes into land and the second one in 1999 that went to more than 10,000 -foot depth was in an abandoned quarry site in the Hilo Airport. But, at the site where we're going to drill the well, subject to approval, ground elevation is about 14 feet. When we drill down, we're drilling into Mauna Loa lavas which cover the area that we're drilling in. 10V1111.11 11 There may be a zone in here that has calcium carbonate old reformation. It did show up in the more makai of those two deep water wells and did not show up in the, in the, in the one that's in the quarry in the airport. Down at about 800, 900, a thousand feet, we're going to run into a soil layer that is definitely the weathered surface of the Mauna Kea lavas at depth. So, this is all Mauna Loa to this depth, and below here is all Mauna Kea. This soil layer which is compressed by all of the weight, 800, 900, or a thousand foot of lavas is basically impermeable, and below that is fresh water under artesian pressure and capped, confined by this layer here. If we go down further, the freshwater body probably extends 300- or 400 -feet thick, and that's what we'll be extracting from. Below that is salt water. The important point in getting this thing to yield is that far below that is a transition between what are known as submarine lavas. Those are lavas that were laid down below sea level during the shield -building stage of the island, and that's at about 3,500 -foot depth. The lavas in here are what are called subarea. They were laid down above the ocean surface and now have sunk all the way down. The island, in fact, is sinking at around .1 inch per year or so, and to have sunk to this 3,500 -foot depth would be sinking at that rate for 400 or 500,000 years. The characteristics of this groundwater that we want to tap, first off, because it's under pressure and at this time the freshwater, the salt water that's below it is about 2-1/2 percent greater density than the freshwater. So, when we drill down, we drill through here, that freshwater is going to come up the hole. It may come up all the way, all the way up ROHR (from audience): Microphone, please. NANCE: Oh, sorry. Or, it may dissipate into the Mauna Loa lavas depending on what their permeability is. So, during the drilling process, this freshwater is, is coming into the formation or possibly coming above ground. When they drilled the second hole in the quarry site, it came out of the ground at very high rates of flow. So, the aquifer was formed by the sinking of the island, permeable subaerial lavas and capped by the soil layer which is the weathered surface of the Mauna Kea lavas. BUNN: Thank you. Mr. Nance, you just drew freshwater infiltrating the Mauna Loa lavas above it, how long would that continue if it occurred? NANCE: It will continue until we come in, and I'll just use a different color, we come in and install casing inside the borehole, and we cement the annular space between the casing and the drill borehole. That is likely to be a period of months, because we will drill a 12 -inch pilot borehole first, do it, do a pump test with an inflatable packer here so that we only pull water from here, and it that's successful, we'll open the hole up and then install the casing. BUNN: Thank you. I have more questions—sorry. CLARKSON: Let's take a minute to see if there are any questions from the Commissioners. DELA CRUZ: Yeah, I got one question. Okay, when you guys drill that hole in the beginning, right, and you guys get all the way down to the Mauna Kea Aquifer— EXHIBIT D 9 NANCE: Yeah— DELA CRUZ: What are the chances of it getting contaminated with the things that you guys are bringing down with the drill bit, and how do you guys plan or what is the method of containing the settlement from going down or being contaminated to the next aquifer? NANCE: Well, this is coming up under pressure, so nothing is going to leak from the Mauna Loa lavas this way. The flow is going to be out. The drilling itself, they use water and a little bit of foam, NSF approved, and that's what carries the cuttings out while they're drilling. So, there, there really isn't a contamination that's going to go on, but there is this leakage. Just as, on the side, we drilled a—State drilled a deep hole in Keopu on the other side of the island. Had no idea that they would run into the situation which they did. It was flowing out. Ground elevation there was 730, so the water didn't come all the way to the surface. We just sealed the leak last year, and for 2001 till last year, three or four hundred gallons a minutes was coming out of the deep aquifer into the salt water and the basal groundwater below. That's in Keopu. IKEDA: So, the Mauna Kea, Mauna Loa Aquifer, is it flowing, is continuously flowing into the ocean? NANCE: Very good question. You'll take her thunder away. Two things about this groundwater we learned through the deep drilling process. One is they can trace using isotopic analysis where this recharge came from on Mauna Kea, and from that isotopic analysis, it's from a zone of about 6,000- to 6,500 -foot elevation. So, that's where it came from initially. The other thing that goes on here is that there's a tidal response. So, in other words, that water is flowing through the aquifer and ultimately discharging at depth off -shore. BUNN: If—did you? CLARKSON: No, if there are no other questions, please continue. BUNN: Thank you. I'd like to direct your attention back again to the aquifer map and make sure I understand it. So, generally, if there is a well drilled in the Onomea Aquifer system, that would also pump from the Mauna Kea lavas? NANCE: Yes. BUNN: Okay, and how about in the Hilo Aquifer system? Are there—are there any wells there that pump from the Mauna Kea lavas? Any other wells? NANCE: Not absolutely known, but up the Saddle Road, a well called Saddle Road Well A which is a Department of Water Supply well, it's at a ground elevation of about 1,900, and if this is the Saddle Road and this is the well, this is the boundary. It was my design, oversaw construction, but we didn't have any weathered interface to tell us that we did or didn't. So, I can't tell you whether Saddle Road Well A does that or stops and takes it out of Mauna Loa, but there's certainly the possibility that that's the case. EXHIBIT D 10 BUNN: And, for each of the aquifer sectors and systems that are on the drawing, the drawing identifies the sustainable yield. Could you explain what that means? NANCE: Okay, let's, let's start first with aquifer recharge and then get to the sustainable yield, because the sustainable yield is based on a percentage of what is computed as the recharge. So, they go through an exercise looking at rainfall, evaporative loss, surface runoff, and determine to where the best of their technology then available how much of that water went and infiltrated and became recharge to the aquifer. So, for example, I think I have some numbers here. For example, Onomea Aquifer has a sustainable yield of a 147 million gallons a day as determined by the State Commission on Water Resource Management, and that's based on a total recharge being 335 million gallons a day. And, how much of that recharge they determine to be sustainable yield by their methodology depends on how high the water level is in the aquifer itself. For example, if it's a low-level basal groundwater, three, four, five feet above sea level, they determine that 44 percent of the recharge is available as a sustainable yield, and they define the sustainable yield as the amount of water that can be extracted without deteriorating the quality of the aquifer or the structure of the aquifer. The reality is where the wells are located depends a lot of whether you can or can't achieve that sustainable yield, but for water levels that are much higher, they go up to saying the sustainable yield is as much as 75 percent of the recharge. BUNN: Thank you. So, I think you identified that for the Onomea Aquifer system, the Water Commission's estimate was that a 147 million gallons per day could be withdrawn without impairing the aquifer. What about the Hilo Aquifer system? NANCE: For the Hilo Aquifer system, they have a total, a calculated recharge of 793 million gallons a day of which 347 million would be available as the sustainable yield. REPLOGLE: Daily? Daily? NANCE: Yes. A lot of water. BUNN: So, I just want to make sure I understand this right. Water in an aquifer underground is not static. It's not like there's an amount kind of sealed within a vault. There's recharge coming in every day, and discharge going out every day? NANCE: That's—that's correct. It's a, it's a cycle depending on the areal extent of the aquifer from recharge to groundwater flow to ultimate ocean discharge can be much longer than a hundred years depending on the size and how long the process is to move through the formation and ultimately discharge in the ocean. BUNN: And, where does the recharge for the water in the Mauna Kea lavas come from? EXHIBIT D 11 NANCE: Oh, it's rainfall, so obviously the greatest amount of rainfall is, I mean the greatest amount of recharge is where the rainfall is greater, so that belt of maybe from three, four thousand feet to six or seven thousand feet is where most of the recharge occurs. BUNN: Is it possible that water from Lake Waiau up at the summit of Mauna Kea would be pumped by Pi`ilani's proposed well? NANCE: It—well, I can't say it's impossible, but I think the chances may be one in a billion or something. I have some done some work on Lake Waiau, and I've read the research on it. Lake Waiau is in a, in a puka area that has, that is filled with water from an area that's only about 33 to 35 acres in size. They've done studies to correlate water levels up and down in the lake with the amount of snow melt and direct rainfall that come into it. So, we know that the source of water in the lake is just that local recharge and that 30 to -33- to 35 -acre area. They've also probed through the sediments at the bottom of the lake, and I went down pretty deep, but I can't remember exactly how deep, but essentially those sediments are silt that might have been blown in, but decayed organic matter. If you've been up to Lake Waiau, you know that the algae content in that lake is about as high as you'll ever see anywhere. I mean, it makes it, makes it pretty green. So, that that very thick, sedimentary bottom pretty much prevents leakage from the lake going, going down and ultimately becoming groundwater recharge. BUNN: Thank you. Would—would Pi`ilani's proposed pumping from the Mauna Kea lavas reduce the flow in any surface stream? NANCE: No, not to my knowledge. BUNN: And, I think you answered this before, but I just want to make sure. What happens to the water in the Mauna Kea lavas that is not used? NANCE: It it ultimately discharges in the ocean. In some locations, for example, the location we're talking about here, it's buried under Mauna Loa lavas to a thousand -foot depth or so. So, that discharge is going to be at depth off -shore very likely at a deeper depth then, then where it is on -shore. Where the lava, where the Mauna Kea lavas are exposed to the ground surface and no overlying caprock or other anomalies of geology, most of that discharge is along the shoreline, but there still may also be some discharge off -shore as well. BUNN: And, what would be the impact, if any, of reducing the amount of fresh water from the Mauna Loa lavas that discharges into the ocean at depth by approximately .2 mgd. NANCE: Okay, you said Mauna Loa. You mean Mauna Kea? BUNN: I'm sorry, thank you. I meant Mauna Kea. EXHIBIT D 12 NANCE: Okay. If we look at, and if you believe that the Onomea Aquifer's total recharge is 335 million gallons, and the total pumpage today is actually less than .5 million gallons a day, so basically, you've got more than 330 million gallons a day of water from that groundwater, from that aquifer, discharging into the marine environment. The pumpage of .2 will eliminate .2 out of 330+ million gallons a day of discharge into the ocean. BUNN: So, it's infinitesimal. NANCE: You would not be able to detect the change. BUNN: Okay. I wanted to go back and talk about wells in the Onomea Aquifer system. So, did I understand correctly that all of the operating wells in the Onomea Aquifer system draw water from the Mauna Kea lavas? NANCE: That's correct. BUNN: Okay. And, are any of the operating wells in the Onomea Aquifer system municipal wells? NANCE: Yeah, the Water Commission lists 18 wells that are drilled in the Onomea Aquifer, four of which are recording pumpage to the Water Commission or maybe one or two of that should have been and aren't, but of those four, three of them are municipal wells, Department of Water Supply wells. BUNN: So, people living in the area designated as the Onomea Aquifer system could be drinking water from the Mauna Kea lavas as in turning on their taps— NANCE: —Would be, would be drinking water from the Mauna Kea. BUNN: Okay. And, is the same true for the Hakalau Aquifer system? NANCE: Yes. You're going up the coast of the Mauna Kea, the east Mauna Kea side, yeah. BUNN: And, so Pa`auilo as well? NANCE: Yes. BUNN: And, Honoka`a? NANCE: Yes. BUNN: Okay, so is that why just recently in talking about the discharge you were talking about 388 million gallons per day? EXHIBIT D 13 NANCE: Well, if we take those four aquifer systems as part of this East Mauna Kea Aquifer sector, they have a combined sustainable yield of 388 million gallons a day, but that's based on a calculated recharge of 883 million gallons a day. CLARKSON: Can I interrupt? I just wanted to ask a question. Are—to your knowledge, are there any wells supplying the public water systems that are makai of this proposed well? NANCE: There are none, no. BUNN: Do you know the total volume of water pumped from the four aquifer systems we were discussing that are in the East Mauna Kea Aquifer sector? NANCE: Well, I know specifically about Onomea which is less than a half a million. The others are probably of the same order of magnitude, maybe all of them may be on the order of two million gallons a day or so out of a sustainable yield of 388, recharge of 883 million gallons a day. BUNN: Thank you. Can you tell us how many wells have been drilled in the Onomea and Hilo Aquifer systems? NANCE: Okay, the Water Commission lists 18 in the Onomea Aquifer, and they list 39 wells in the Hilo Aquifer, 12 of which are reporting pumpage to the Water Commission. BUNN: And, you told us, I believe, that the total REPLOGLE: I'm sorry. I didn't get that last thing you said. Twelve or NANCE: Reporting pumpage to the Water Commission. REPLOGLE: Oh, okay. Thank you. BUNN: I think you told us that the total pumpage currently in the Onomea Aquifer system was roughly .5 mgd. Do you have an estimate for what it is in the Hilo Aquifer system currently? NANCE: I have the data from the Water Commission. The total pumpage in the Hilo Aquifer is on the order of 45 million gallons a day. Forty million gallons a day of that is for pulling wter wells for the HELCO's power plant near the airport. Forty million of the 45 or 44. So, the balance of other wells, municipal and otherwise is around 4 million gallons a day or so. BUNN: Thank you CLARKSON: Excuse me. Isn't it true that that 40 million gallons is taken from relatively shallow depth and immediately reinjected? NANCE: That's correct, yes. EXHIBIT D 14 CLARKSON: It's not consumed. NANCE: No, it's a single pass cooling and out it goes. BUNN: Do you know what the projected future pumping in the Onomea Aquifer system is? NANCE: Well, I know that the County land use and development plan shows very large numbers. I can't remember exactly. It's based on potential development, but, you know, the realities of what might happen from my perspective anyway, my view, is that it's neverI don't want to say my lifetime `cause I'm pretty old, but in a foreseeable future, it wouldn't exceed five million gallons a day. BUNN: And, how about in the Hilo Aquifer system if you exclude the water that's essentially recycled for cooling water? NANCE: Again, another five million gallons a day excluding the power plant pumpage. BUNN: Okay. Mr. Fuke submitted a December 20th, 2018, letter to the Commission and it included a memorandum that you apparently drafted answering some questions that were asked by the Commissioners at the December 6th meeting. I just, I have a few questions for you, but I want to first make sure that what's attached to Mr. Fuke's letter is the memorandum that you drafted. NANCE: Yes, it is. BUNN: Okay. First, I just wanted to ask you about some of the terms that you use in that letter because some of them I was seeing for the first time. And, you used earlier as well the term "artesian." Can you explain what an artesian aquifer is? NANCE: Well, an artesian aquifer is one that has a capping formation that confines it so that the water is actually under pressure, so, and that's the case here, and once we cut this open, you'll see that artesian pressure move the water up the hole as a result. BUNN: Okay. CLARKSON: And, excuse me, and it's under pressure because that layer is gradually going uphill and you have hydraulic head from further up. NANCE: That, plus the fact that you've got all this salt water, denser salt water, and as soon as you open this up, even if it wasn't being pushed from up mauka, this water would raise up twenty -odd feet just so that the column of freshwater had the same density as the column of salt water. BUNN: Okay, it sounds like it might be related, but you also used the term piezometric head. Could you explain what that is? EXHIBIT D 15 NANCE: Piezometric head is basically that level to which the artesian water level would rise. We express it as a feet above sea level. BUNN: Okay. One of the things you say in your memo, and it was in response to one of the concerns raised at the December 6' meeting was, and I'm quoting, "Due to the higher piezometric head in the fresh artesian aquifer than in the overlying saline groundwater, there is no possibility that the saline groundwater will move downward and enter [into] the fresh artesian aquifer." Can, and I think it's what you've been explaining. I just want to make clear. Explain why it's impossible for the overlying salt water to move down into the fresh water. NANCE: The salt water basically has a level at sea level, whereas this thing is possibility 20 feet above sea level, so it's going to be forcing water out of the borehole into the formation rather than the reverse. BUNN: And, can you think of any circumstances under which salt water could contaminate the underlying freshwater in the Mauna Kea lavas where Pi`ilani is planning to drill? NANCE: As I say, when we're open borehole, we're flowing up, let's say the well got finished and now we're sealed off from the salt water above and for whatever reason somebody decided to pump 40 million gallons a day rather than a 100 gallons a minute, grossly over -pumping in that location, in that case, we might pull the salt water up from the bottom as a result. We're not designing the well, we're not going to actually be [inaudible] impossible to do. BUNN: And, can you quantify please what you mean by grossly over -pumping in, relative to the plant pumping which is .2 mgd? NANCE: You know, tens of millions of gallons a day. BUNN: Now, we were talking about the possibility of salt water contaminating the underlying fresh water. What about the reverse? Is it possible that the underlying fresh water could contaminate the overlying Mauna Loa Aquifer? NANCE: Well, contaminate is probably the wrong word because we think of this as a much higher quality water than what the salt water and brackish water that exists up here, so—it's going to flow into it. You can call it contaminate it, but I would call it improving it. BUNN: Okay, and again, that flow is temporary NANCE: —Right BUNN: just until the casing is installed NANCE: until it gets sealed off, yeah. CLARKSON: Can I ask a question? What is the possibility that the barrier, the cap soil is a hundred percent continuous over the entire Mauna Kea Aquifer? Isn't it likely that periodically EXHIBIT D 16 every, what, few hundred feet, every mile there's a breach in that and you would have fresh water leaking up into the overlying brackish water? NANCE: And, that may actually be occurring. We can't say. But, for those breaches or where that cap is absent, that can very well be happening. BUNN: Okay. Are you aware of any damage to the aquifer caused by any of the 18 wells in Onomea that are drilled into the Mauna Kea lavas? NANCE: No, none at all. BUNN: And, can you think of any circumstances under which drilling the well Pi`ilani proposes could do irreparable damage to the aquifer? The Mauna Kea lavas? NANCE: No. BUNN: What about an earthquake? CLARKSON: Excuse me, excuse me. How how much longer is your presentation going to be? BUNN: This part of it will be maybe ten more minutes. Maybe five. And, then I did want to talk a little bit about the Public Trust Doctrine unless you're comfortable with that? CLARKSON: No, that—and how long might that discussion last? BUNN: That might be five minutes as well. CLARKSON: Oh, five minutes? Okay. BUNN: Probably. CLARKSON: Okay, okay, we'll wait. BUNN: Thank you very much. CLARKSON: I see Commissioners getting restless. BUNN: You know, if I could suggest, perhaps when Mr. Nance is finished, if the Commissioners have questions for him, that may take some time, and that might be a good time to break. I'm freezing in addition to being restless, but we'll see. CLARKSON: Please proceed. EXHIBIT D 17 BUNN: Okay. So, we were talking about the potential for irreparable harm to the aquifer and my next question was what about an earthquake. Would having a well make it any more or less likely that the aquifer would be damaged in an earthquake? NANCE: I know of no earthquake damage to a well or even an aquifer in all the years I've been working like this. BUNN: And is that just in Hawaii or is that in all wells? NANCE: That'sno, that's limited to the State of Hawaii. BUNN: Okay. And, what about a tsunami? Would a tsunami cause damage to the well or to the aquifer? NANCE: We got two situations to deal with if, in fact, we had an inundation with a tsunami. One is if the aquifer's piezometric head is above ground, we would basically seal it off, and there would be essentially no opportunity for any of the sea water above to go down below. It would be sealed off If, what I don't think will happen, is that the piezometric head is somewhere below ground. In that case, the baseplate that we put over the well would have a vent, and it would be a screen vent in a J shape, and we put a valve on that. So, if we have a tsunami, if that valve isn't closed, that would be a passage way for salt water to possibly come into the well. So, if we have that situation, we would have to go close the valve on that vent, and otherwise the well is completely sealed and wouldn't be damaged. BUNN: And, what is the process of closing that valve under the circumstances you described where the piezometric head is less? NANCE: Well, once somebody gets to the site, another 15 seconds. BUNN: Okay. NANCE: You're talking about just an inch and a half pipe with a small little valve. It's just an air valve really. BUNN: And, I had the same question regarding sea level rise. What is the potential for sea level rise to damage either the well or the aquifer? NANCE: Essentially, none. What people don't realize, we've already experienced sea level rise for months at a time. The mean ocean level actually goes all over the place with large-scale meteorological events that lasts for weeks or even months. El Nino or the like. And, ocean level, mean ocean level, not the semidiurnal tide, but the mean ocean level for many part of one year to the other and the years that I've been tracking it, can be up to a foot different, and what happens with the groundwater is it rides up with it and it goes back down. So, if the sea level rises, what will happen is the artesian head will also rise in response to that, but otherwise no impact one way or the other. EXHIBIT D 18 BUNN: Okay, and the same question regarding lava inundation. What would happen to the well or the aquifer in the event of lava inundation? NANCE: Well, again, if it's, the piezometric head above ground, it's already sealed. It'd be buried under the lava and that would be that. If, if it's got that vent system, you'd have to close that off, and it would be buried under the lava. BUNN: So, whether it's inundated by a tsunami or by lava, the reaction to it would be the same. NANCE: Yes. BUNN: Okay. Mr. Fuke discussed a proposed condition having to do with an emergency preparedness and response plan, and what's—what's changed is that Pi`ilani has proposed amendments to that condition. Is that something that you've seen? NANCE: Yes. BUNN: Okay, and did you participate at all in the consideration or discussion of those amendments? NANCE: Well, I think information I provided was incorporated in the memo. BUNN: Okay, and just so we're all clear what, or so you know what I'm talking about, the proposed condition as amended reads, "The applicant, its successors or assigns shall prepare an emergency preparedness and response plan" defined as the "Plan" "which shall include any specific actions to be taken, and the parts and equipment necessary to take such actions, to protect the well and the aquifer in the event of tsunami, earthquake, sea level rise, or other natural phenomenon. The Plan shall be filed with the Hawaii County Civil Defense Agency and the Planning Department prior to the issuance of a certificate of occupancy for any portion of the proposed development." Can you think of anything that should be addressed in the emergency preparedness and response plan that wasn't referenced in that proposed condition? NANCE: No, I think it's comprehensive. BUNN: Okay, and do you expect to be involved in preparing the emergency preparedness plan? NANCE: I'm assuming so. BUNN: Okay. I want to thank you, Mr. Nance, and just one last question. Is there anything that you think that would be important for the Planning Commission to know that I haven't asked you about? NANCE: I think we've covered it with that and their questions, so BUNN: Thank you. EXHIBIT D 19 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 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 And, finally, if there is a reasonable allegation of harm to a public trust purpose, we must demonstrate that there is no harm, and I believe that Mr. Nance has done that today, whether it's tsunami, earthquake, lava inundation, there will be no harm to the aquifer. I think everybody looks impatient, and I'm still freezing so I will stop there. Thank you. CLARKSON: Thank you. We're going to break until 1:30, and the Commission may have, may or may not have an executive session, but those who want to testify, and we so far have ten signed up, please be back here at 1:30 for your testimony to be presented. KANAKA`OLE (from audience): [Inaudible] executive session not applicable [inaudible]. I'm trying to like understand your reason. You didn't really define an explanation for this executive session CLARKSON: Oh, I thought— KANAKA`OLE (from audience): Is it personnel or finance? CLARKSON: No, it's regard to our consideration of recent legal advice from our Corporation Counsel. KANAKA`OLE (from audience): Does it apply to personnel or finances? CLARKSON: Neither. KANAKA`OLE (from audience): Doesn't the Sunshine Law allow us that the Freedom of Information Act be present at this meeting where you have this discussion? `Cause it's not CLARKSON: —I'll let—I'll let our Corporation Counsel address that. KANAKA`OLE (from audience): You just said, it's not, it doesn't deal with personnel or finances. HALL: The Sunshine Law also allows the committee to confer with their counsel for their legal rights, duties, and obligations. So, that's also KANAKA`OLE (from audience): In regards specifically, it was not told specifically requesting this executive session. Is it for personnel or finance? HALL: No, it's neither of those things. They're going to confer with me about their legal duties and obligations as a commission. KANAKA`OLE (from audience): I think you know already what your legal obligations are. Aren't you? Don't you? HALL: Thank you. EXHIBIT D 22 CLARKSON: So, KANAKA`OLE (from audience): So, it's a back -door deal AUDIENCE MEMBER: Can we leave now? Should we leave now? HALL: Yeah, you can go ahead. CLARKSON: Please KANAKA`OLE (from audience): So, this is a back -door room deal then? To discuss with your attorney CLARKSON: No, no KANAKA`OLE (from audience): It has nothing to do with your personnel or your finances. Is this being recorded? I want to know if this is public record. You're all paid legislators. You guys are paid by the State— HALL: No one is paid here. These are all volunteers, ma'am. CLARKSON: No one is paid. HALL: They're all volunteers. KANAKA`OLE (from audience): So, how do I volunteer to be on that thing HALL: —Okay, let's close this session and then we can discuss that. CLARKSON: So, we need to have a motion for KANAKA`OLE (from audience): I have vested rights in here, in the water. So, I have interest. DARROW: You're going to be able to testify. CLARKSON: We're not shutting off testifying KANAKA`OLE (from audience): I don't want to testify. I'm claiming my rights to this vested interest. HALL: Okay, we'll note that. KANAKA`OLE (from audience): And, you guys part of this war crime if you continue to deplete, diminish, cause to diminish our resources. EXHIBIT D 23 HALL: So noted. IKEDA: I move that the Commission enter into executive session KANAKA`OLE (from audience): [Inaudible] CLARKSON: Is there a second KANAKA`OLE (from audience): [Inaudible] under investigation. [Inaudible] under Federal investigation. So, you guys all under Federal investigation! DELA CRUZ: Second. CLARKSON: All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carried. We'll be in executive session. At 12:33 p.m., it was moved by Commissioner Ikeda and seconded by Commissioner Dela Cruz 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 five aye votes. At 12: 36 p.m., the Commission went into executive session. At 12: 45 p.m., it was moved by Commissioner Ikeda and seconded by Commissioner Replogle that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with five aye votes. Chairman Clarkson called a lunch recess at 12:45 p.m., and the hearing reconvened for regular session at 1:31 p.m. CLARKSON: The Windward Planning Commission is back in session, and at this time, we're going to proceed with public testimony. So far, we have ten people scheduled to testify. I'd like to call up the first four. Cory Harden, Hanalei Fergerstrom, Gary Harrold, and Claudia Rohr, if you would please come to the front. AUDIENCE MEMBER: Gary Harrold had to leave. CLARKSON: Okay, then Mary Afable? [Pronounced "affable."] AFABLE (from audience): Afable. EXHIBIT D 24 CLARKSON: Afable. Claudia, you're scheduled to testify in this group, please. Would you all please your right hand? Do you swear or affirm to tell the truth on this matter before the Planning Commission today? TESTIFIERS: Yes. CLARKSON: Please let's start on this end this time with Claudia Rohr. Please proceed. ROHR: This project is between two recreational properties, the Holulu [sic-Ho'olulu] something park complex and the Wailoa Park recreational area. Also, it's a, the noise that they're saying that they will keep down. I'm sorry, I thought you were going to start at the other end. I'm not actually prepared. I have to get something out, so maybe you should move on. CLARKSON: Go ahead, please then. HARDEN: Okay. CLARKSON: Introduce yourself, please. HARDEN: Yeah. CLARKSON: And then proceed. HARDEN: Cory Harden for Sierra Club Moku Loa Group, and I want to thank you folks for your service on the Commission. We oppose taking public trust water from a pristine aquifer over the objections of Native Hawaiian leaders and with zero support from the community. The only support I've seen is people who are hired by the owner to come and speak here, and this is the water, a lot of the water apparently would be shipped off island, and this is all to benefit a few people. I don't even know if they live here. We haven't seen them. So—have assorted concerns. One is that there's been a lot of information kind of given at the last minute, some of it this morning, and then some only verbally and not in writing that makes it impossible for the public to make meaningful comments. Also, difficult for you folks to absorb. And, it's specialized information about water resources and what you do with water. I don't know what your folks' background is, but it's very difficult, I think, for you as a Planning Commission. Let's see, I did not quite catch what Tom Nance said. I think he said once a well was drilled, there's a 1,000 -foot circle around it where other people can't drill wells or can't do certain things, so I hope you will ask about how the neighbors will be affected by this. Let's see, and I wonder, I don't see any decommissioning plan. Suppose the plant goes out of business. The owners walk away. Tom Nance was talking about, I think, an uncontrolled well in Keauhou [sic-Keopu] that was going for like 18 years, and they're expecting this well to be under pressure where it will flow out, so it'd be good to have some kind of decommissioning plan. EXHIBIT D 25 They talk about having a valve on the well they can close in case of tsunami so no salt water can get in. However, if there's a local abrupt tsunami, there wouldn't be time to close any valve. Pi`ilani Partners has offered $100,000 in student financial aid to offset public trust impacts, but Earthjustice has questioned whether community benefit payments fulfill any public trust obligations. Also, you can get an exemption from an environmental assessment for single -structure projects, but they're proposing maybe having a structure for a recycling center on there at some point which would be a second structure. Let's see, and there's a whole lot of improvements going to be done. Pavement widening, sidewalks, streetlights, sewer, waterline, and so likely other business will—other businesses will go oh, nice road, easy sewer hookup, we think we're move in there, too. So, this is going to influence the future. Claudia has pointed out the 1990 feasibility study, and I think with two lots nearby, they said Industrial designation was inappropriate. So, has anything changed to make it now appropriate? And, I see a requirement for an emergency response plan, but I don't see any requirement that anyone approved that plan. So, basically, we have a lot of concerns. I will hope you will vote down this project. Thanks. FERGERSTROM: Good afternoon. I'm Hanalei Fergerstrom. I'm the spokesperson for Na Kupuna Moku O Keawe, which is a kupuna organization of representatives from all six districts of this island. Did you hear me yet? HALL: Yeah. FERGERSTROM: Oh, okay. Thank you. Okay, so of course, we're speaking, we're speaking in opposition to the proposed Pi`ilani bottling plant. I'm opposed to, I'm speaking in opposition to the proposed Pi`ilani bottling plant. Not only is there no need for a new bottling plant and certainly not in this chosen area. Thank you, Mr. Camara, whom at the last meeting revealed that the sources of water in this proposal is the virgin Mauna Kea Aquifer. As described, the Mauna Kea Aquifer is a sealed aquifer below the Mauna Loa Aquifer. These are resources that are unnecessary to touch and is, and it is a reserved water source for future generations. So, the integrity of that is extraordinarily important. There's no need to touch that water in actuality. There may be a desire, but not a need. The whole idea of the, a water bottling plant in this area is challenging as to, as to it's approximation to Wailoa ponds and the waste dump pits of the last tsunami when Hilo Bay Front was wiped out. It is also known to be toxic because the arsenic that was used in the previous Canec plant in the same location. EXHIBIT D 26 It is important that you know that water is a public resource and should not be used for personal or private gain. Water is under a trust obligation with the State and requires permits and justification for its use. Water for sale is not a good use of public water. While at this time water is under the control of the State, it is, in fact, a resource of the Hawaiian Kingdom. Unless the State—unless the State of Hawaii, a state of the United States, can show a lawful documentation of a lawful jurisdiction was in the Hawaiian Kingdom, I can but only give you a proper notice that this action on your part shall be treated as a willful and knowledgeable act of fraudulent participation in the taking and selling of property that does not belong to yourself. Thank you very much. AFABLE: Hi, I'm Mary Afable. I live in Hilo. Hello Commissioner Members, I'm in opposition to this bottling plant, and although there are many problems with various aspects of the plant, I'd like to focus my concerns regarding the on-site fabrication of plastic water bottles. The fabrication of plastic water bottles requires three times the amount of water needed to fill the bottle. The water that's used in fabrication is contaminated by chemicals used in the manufacturing process. The production of plastics used for water bottles requires—let's see if I can pronounce this, pyroxylin. It's a derivative of benzene, and known carcinogen. Other carcinogens that may be released as the plastic resins are heated for the molding and the, molding process include formaldehyde and VOC's also known as volatile organic compounds. I'd like to know how the fumes created during the fabrication process will be vented. Also, fires in the plastic manufacturing plants release hazardous chemicals into the air endangering residents' health, and plastic manufacturing plants are known to have fires. Is the Hilo Fire Department ready to deal with a chemical fire at a plastic plant? Finally, should this area adjoining Wailoa Park, the marina, and near Lili`uokalani Park be devoted to an industrial activity, will other industrial applications be accepted based on this facility, or possibly other bottled water companies may request permits to pump more water from the Mauna Kea Aquifer. All of this and the citizens of this island get no payment for the taking of our water for profit. Thank you. ROHR: I sent in an email that I got from the CLARKSON: Please introduce yourself for the record. ROHR: Claudia Rohr. I sent in an email that I got from the head of the noise and radiological department of the State, and they will not enforce a special sound limitation put on a County permit. The County of Hawaii Planning Department does not have the equipment or even the personnel to enforce a special noise ordinance put on by the Planning Commission. You would be putting on a condition that was unenforceable. Besides that, Pi`ilani cannot claim to have control over the truck noise that will occur next to the Wailoa Ponds. This is what we're going to be hearing as they backup, six to eight an hour. [Ms. Rohr played a recording of the beeping sound a truck makes when backing up.] This was the problem at Hu Honua. The neighbors all complained. The County Planning Department was notable to do anything. They came in and asked for some kind of special construction—sorry. [Ms. Rohr's phone inadvertently played EXHIBIT D 27 music.] Some kind of special change in their permit to allow the beeping for their construction vehicles. That's not me. [Another high pitched sound was heard.] Anyway, you folks had it reviewed and sent forward with a favorable recommendation on the Bay Front Bike Trail Master Plan which was approved by the County Council. Also, the Envision Downtown Hilo, that was approved by the County Council. Those were two Planning documents, future planning documents that this project is not consistent with. I sent you a zoning map and a GP map showing that this Industrial property is a, is spot zoning, and right now, the way the ordinance reads, that ordinance sets into existence has no value to Pi`ilani. It doesn't apply to them. The deadlines have way, in the past, expired prior to them buying it. They have no zoning rights. When they bought the property, that zoning ordinance was expired. So, without consistency with the General Plan, you're not supposed to be able to approve an SMA Permit, and I think the value of guaranteeing that we're going to have a good recreational project and that the bike trail, the Bay Front Bike Trail project, which has already been funded, will succeed, in part, depends upon how you treat this industrial project. It's not spot specific. It can go onto another parcel with Industrial zoning. I'm asking the County Council to just ask, to repeal the zoning ordinance altogether. Basically, there's supposed to be a bike bath down Pi`ilani going to the bike trails, so this project would definitely, with this truck traffic, be inconsistent with the Hilo Bike Trail Master Plan. Thank you. CLARKSON: Thank you, all. Any questions from the Commission for any of these testifiers? If not, thank you. I'll call up the next people to testify. AFABLE: Can I add one tiny thing I forgot to mention? It's only one sentence. I just was wondering how the contaminated water from the manufacturing process would be dealt with. You know, where is it going to go? Who is going to clean it up? CLARKSON: We'll bring that up HALL: —Could you just restate your name real quick just so that they AFABLE: I'm Mary Afable. HALL: Oh, into the microphone, sorry. AFABLE: Mary Afable. HALL: Okay, thank you. CLARKSON: Would Shannon Matson, Mr. Camara, Lauhela [sic] Camara, and Emily Leucht— HALL: Lahela CLARKSON: Lahela Camara and Emily, please come forward? Who are we missing? Well then if we're missing someone, will the last person then, Simbralynn Kanaka`ole, please come EXHIBIT D 28 forward? Okay, you're the last three. Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? CAMARA, J. & L.: Yes. LEUCHT: I do. CLARKSON: Let's start with you, sir, and please introduce yourself and proceed. CAMARA, J.: Aloha, O Joseph Kualii Lindsey Camara ko`u inoa. O Mauna Kea ku`u mauna. O Wailuku ku`u wai. Noho au me ku`u `ohana i ka wao ma`ukele o Kaumana. So, I'd like to thank all of you guys for being here today and for your guys' service on the Planning Commission and for hearing this very important issue. I was here on January 3rd, and I gave testimony also. I have written testimony. I'm just going to touch on a couple of things. There are a lot of things I want to respond to, so I'm going to try my best to touch on all of these things. Just to reiterate what I had in my written testimony and my previous testimony that these waters, all waters in the State, are public trust resources, and the State has a fiduciary responsibility to, to serve the public's best interests and also to, they have a specific fiduciary responsibility to Native Hawaiians, to improve the conditions of Native Hawaiians. So, even though this is before the Planning Commission, I really, I really going to keep reiterating that the highest level of State oversight be taken in this, and that would be the Commission on Water Resource Management before you guys issue a permit. The precautionary principle, also I talked about the precautionary principle. This aquifer is a deep contained aquifer. We don't have enough information on these types of aquifers to make informed decisions on how they should be extracted. I heard Mr. Nance's testimony. It's, you know, so he's an expert, a hydrologist, but, you know, he—even in his own testimony, it's hard to seal around the well. And, I'm not worried about the contamination of water between—it's the loss of that resource leaking out. A 400,000 -year old system just leaking out. And, if there were other pukas in it, it would have leaked out already. So, it's a pristine system. And, you know, and also there's no—there are alternatives to this. There's 350 million gallons of water flowing beneath, in between where they want to drill and the surface. There's 350 million gallons of water flowing to the ocean. There's—so the alternatives, there are alternatives to this. It is not needed. I have a lot of otherI put it in my testimony. Also, another thing that's coming up. So, the Commission on Water Resource Management is updating their Water, their Water—their Water Plan. So, in my, in my opinion, our regulatory system for our water sources are insufficient to are insufficient to take into consideration all of the new information we have, and I believe that is why they are redoing their Water Plan. To look at these things, and specifically these deepI'm going to make a suggestion to them, and so I'm going to go forward with them. These deep confined aquifers are something new that we didn't know about. We don't know. We don't know enough about them. We don't know enough about them to be able to make informed decisions about—yeah, I'm sorry, I'm going to try my best to stick to the time. EXHIBIT D 29 And, the last thing, in their application, they talk about the Onomea Aquifer. This is not the Onomea Aquifer. I know it's what Mr. Nance was saying this is. He used the words, this is Mauna Kea lavas. He didn't talk—there is two separate water sources. This is a deep confined well. And, in his own testimony, you'll see he mentioned isotopes. If you look at the isotopes from Mauna—from the Onomea, 18 wells at Onomea. You look at the isotopes they would get from the deep water. It's two different isotopes saying it will be two different recharge areas. So, there's no sustainable yield that's ever been looked at for this aquifer. The sustainable yield is not looked at. The recharge area has not been looked at. We don't know. We don't know how this is recharged. And, another thing that was said, they would—say that it's a different source. This is artesian. It comes out under high pressure. The other the other sources in the Onomea Aquifer, they need to pump it out which would suggest that it is not a sealed system and is two separate systems. So, I would guess that this confined system runs under both the Hilo and the Onomea Aquifer systems. It's a totally different system. We don't know enough about it, and so going back to the recharge area, we don't know, so where this resource—where the recharge area is, but I'm going to take a little bit of time. I didn't get to hit on this last time. But, our kupunas did. It's Kaohe. Kaohe, the ahupua`a of Kaohe extends from Mauna Loa, the top of Mauna Loa, taking the whole top of Mauna Kea, and the Pohakuloa plains. Now, what Mr. Nance said, the isotopes suggest that the recharge area is 6,000 to 6,500 feet. That would suggest that this Pohakuloa plains area is the recharge area for this. This is a kino lau of Kane, the Wai Kapu o Kane. It's sealed. It's sealed. These are restricted for the god of Kane, and it's not just because, kapu because it's sacred. It's kapu because Kane is responsible for supporting all life. Kane is all terrestrial life. Kanaloa is all! Marine life, they need these elements to support them. We don't understand the importance of this water, and I don't expect you take my CLARKSON: —Could you CAMARA, J.: I'm sorry, I going finish. I don't expect you to take my testimony over an expert, but the reality of it is that there is no unbiased, you guys don't have any unbiased consultation from hydrologists to make decisions on this. CWRM gotta look at this. CWRM gotta look at this. And, the Wai Kapu o Kane, to touch on this, saying it's not linked to Waiau, okay, so this aquifer is fed from the summit of Mauna Kea. CLARKSON: Please wrap it up, sir. CAMARA, J.: I will. So, Lilinoe, Poli`ahu, daughters of Kane. They call this the Wai Kapu o Kane. Ka Houpo o Kane, Waiau, Waihu, it's not when it leaks, it's when they fill up and they overflow. It goes into Pohakuloa Gulch, which is the kou uli pa pao Pohaku o Kane. Ka Houpo o Kane spring. You know, it's spring, which is actually Lilinoe's spring. Wai hua Kane, goes into the Pohakuloa plains and feeds this aquifer. So, the piko of my, the piko of my kupunas, yeah, up inside there. It's in this aquifer. There's no reason to puka, puka the sea within yeah. Mahalo nui. Thank you. CLARKSON: Thank you. Please introduce yourself and proceed. EXHIBIT D 30 CAMARA, L.: Aloha, Planning Commission. Thank you for being here today. My name is Lahela Burgess Camara. I live in the moku of Hilo. Sorry. I live in the moku of Hilo in the ahupua`a of Kaumana with my husband and our two keiki. Mauna Kea is my mauna, and the Wailuku are my waters. I'm here to give testimony against the issuance of SMA Permit 18- 000070 to Pi`ilani Partners for the development of a commercial well and water bottling facility. There have been numerous reasons stated in previous hearings and just now by the community and from members on this Commission considering the considerable adverse impacts this project could have on the well-being of our aquifers and, therefore, our communities. The Mauna Kea Aquifer from which this project proposes to harvest artesian water from is a public trust resource. It is absolutely not a resource to be commodified and sold for the financial gain of a small group of people. It is a resource that should receive the highest safeguards and review. The intrinsic value of this unique aquifer merit its protection, but we should also take every measure to ensure its quality and quantity is not compromised should future generations require it. This is a much bigger issue than an SMA Permit. Our current water use designations are insufficient and need to be changed. The fact that this Commission has the power to determine if a power, if a project like this, with this kind of impact on our water can proceed, is shocking to me. As an environmental educator for over ten years, my work heavily focuses on the engagement and involvement of our communities and the restoration of our native forests, the areas that primarily ensure the recharge of these aquifers. When I go into a classroom, I'm often met with blank stares and confusion when I ask the children, "Where does your water come from?" When I proceed to explain the very basics of island -water systems, the confusion continues. As I mention, I'm going to describe to them what an aquifer is, there's an obvious disconnect between us and our water. I believe a main reason for this is that our freshwater systems are forests, the water filtering through them. Our aquifers are largely out of sight and out of mind. Most of us are miles away from the water gathering forests that reach our dry aquifers. We are, however, bombarded at the grocery stores of aisles of bottled water creating the perception for our children that our water comes from the grocery store. What I am getting at is that our daily landscapes have a tremendous influence on how we perceive our environment and how we value it. I drive past the location of the proposed project very often, at least four times every Monday and Wednesday on my way to hula. Last night on my way home, I imagined the facility there, the upper banks on the Wailoa River, a once rich and abundant landscape whose soils are now contaminated. Adjacent to it, a community recreation area to which thousands of locals, outer islanders, and international guests travel to each year. How will this facility influence our communities and our visitors' perception on how we as island people should engage with and value our water. I believe that if this project is allowed to proceed, it will contribute to the disconnect of our residents to our water resources and our water systems, and paint a picture for them that it is okay for us to treat our water this way. EXHIBIT D 31 To Pi`ilani Partners or for those representing them, I ask that you reconsider the use of this land. Do your research of the history of Wailoa and the Piopio area. You have the opportunity to create a space and contribute to the restoration of this important wahi paha and bring it back to abundance. To the Commission, I ask that you consider the influence this project will have on our community's relationship to place and to water. Please deny this permit. Mahalo. LEUCHT: Aloha mai kakou. My name is Emily Leucht. Mauna Kea is my mauna. Waiakea is my wai. And, I usually speak for the trees, but today I am here to speak for the water. I am writing to submit testimony against the application for the Special Management Area Use Permit to develop a potable water well and bottling facility at 525 Pi`ilani Street in Waiakea, Hilo. There are many reasons I am opposed to this facility many of which others have spoke about today and in past meetings, but my main concern is the drilling into this artesian aquifer and the sale of said water. The choice to drill into the Mauna Kea Aquifer remains unclear to me. The proposed application states that the drilling site is makai of the underground injection control line and, thus, has less stringent well regulations, because the water is considered non -potable and saline. The UIC line is in place to protect our potable water resources. The Applicant even states so in its application, yet Pi`ilani Partners plan to drill at the proposed site, pass Mauna Loa Aquifer to access potable, artesian Mauna Kea waters. First, there's a discrepancy in this logic. If potable water is found below the UIC line, does it not deserve the same distinction as waters above this line? Second, there is no clear reason why the Mauna Kea Aquifer is the chosen target for this company's exploits. Before we risk the degradation and possible leakage of these artesian waters, these questions must be answered. In addition to the threat of contamination, my second concern is the sale of our island's water. As many of you know, our aquifers are recharged through rainfall. Oahu Board of Water Supply says it takes about 25 years for our water to make its journey from the top of the Ko`olau's to the bottom of the aquifers. Who knows if that's different for our island? We don't know this yet. And, with increased rainfall that we've all seen—I've been it in my lifetime, and I'm not very old. How do we know that will affect our future recharge rates? And, from what Kuali`i said, we don't much about these underground aquifers or these specific ones. So, why would we allow the sale of water in our communities that, for when our communities need this in generations to come? Lastly, the water we have lying beneath our island is a gift. It is not for us to benefit from, but for us to safeguard for our children and their children. We live on an island surrounded by salt water thousands of miles from other resources. Fresh water is not a resource we can sell. It is sacred. Without it, we cannot live. So, I ask both Commission and Pi`ilani Partners to really think hard on this application. It's a much bigger issue than just allowing a pump for profit. Mahalo nui for your time and consideration and for all the emotions. Sorry. EXHIBIT D 32 CLARKSON: Any questions from the Commission for these testifiers? If not, thank you. Please be seated. So, there were a couple of people that didn't respond when I asked them to come forward. Is there any other person that is wishing to testify on this matter? Please KANAKA`OLE: Aloha CLARKSON: Come— HALL: Please have a seat. KANAKA`OLE: My name is Simbralynn Kanaka`ole. CLARKSON: Oh, okay, so that's you KANAKA`OLE: [Inaudible.] All I'm just here to tell you to cease and desist. HALL: Sorry, we need you to use the microphone, please. Thank you. KANAKA`OLE: I'm just here to tell you all to cease and desist. This is, I haveI like most of our `ohana have vested interest in this water and these resources. We've had enough. The poor management in the past has caused our resources to diminish by projects like this. So, I'm not asking. I'm demanding that you cease and desist. If you continue, you are in violation of war crimes. Participating in acts allowing people to diminish our resources which does not directly benefit us. Does it? I mean, I'm standing here, and I know it ain't gonna—we're not going to benefit it. Our children are not going to benefit. I'm not saying I represent the Kingdom, but I do have vested interests, and as such, I demand that you cease and desist. Aloha. CLARKSON: Mr. Rathburn? RATHBURN: Aloha. I'm Thomas Rathburn, Kamaki Rathburn. I just wanted to kind of ask or mention a couple things. Mr. Nance was speaking, so it was very informative, and discussing some of the points on how the drilling will relate to what's above and below the surface, the different areas, you know, the marks between the potable water and non -potable, etc. But, he mentioned the airport across from Lyman field, the drill site I believe is the one he mentioned. In talking about the fresh water coming up when it's pushed up or is being pumped up and there's a possibility of it escaping. You know, they're going to put the casing and all that, but there could be, always a problem there, so I don't know the details that Mr. Nance would, but I thought that there were problems with that drill site is what I understood, and that the aquifer, the aquifer—one of the aquifers had been damaged beyond just drilling through it or something. There was some rupture or something like that. The water was leaking out, and I heard that it's still leaking out so that's something I don't know. Just something I've heard. Something on my mind. It's a concern, because if this similar situation would arise in this particular case, it could be a very serious problem. I don't know if that breach did occur and it's continuing or if it's been dealt with or mitigated, but what I understand is they stop the surface flow but that there was breach down below at some point somewhere. EXHIBIT D 33 And, the other point I wanted to bring up was with freshwater which, of course, the outflow of freshwater to the coastline both surface and subaquatic, like you know, along the flanks of the volcano, etc., and we're talking about intra -island flow, the water affecting a particular island within the island and on and around it. Pardon me, but I also, and again, I'm not a hydrologist and I'm not a historian or anything like that, but I've always understood that there what were called gushers in Kewalo Basin, and when they dredged Kewalo Basin, these, several gushers which were enormous openings where fresh water was coming up by I don't know how many millions or billions of gallons whatever it was escaping freely, naturally, and then when they dredged, they collapsed that, they diminished that flow, but the point of all that is that that water apparently from what I understand comes from Mauna Kea and Mauna Loa from the Big Island. Because the lava tubes are not just intra -island, they're inter -island. So, if you look at Lake Meyer, what they call Lake Meyer on Molokai, that's in the interior of the island. It's up thereKalaupapa, you know, it's in the forest over there. And, what I understood, too, is—and, again, I'm not an expert, so this is not factual. This is what I've heard, and maybe you guys can look into this because it's very important that the water, the main source of water for Lake Meyer, of course, receives whatever amount of rainfall and precipitation in the area, but that the, it's connected to an inter -island system which provides freshwater from the Big Island perhaps, Maui, and the pressure causes it to come up in Lake Waiau. So, if that's the case, then, we're not just talking about fresh water off where it's limited to the surface of the island into the aquifers and out to the sea. By feeding to other islands, these are natural systems that were created long before we ever thought about bottled water, so those are things that have been destroyed or damaged, and so, pardon me, I'm very concerned about those issues, and I feel like the drilling is not really something that will—the benefit will not outweigh the risk. Whatever profits are made, whatever income and revenue comes to the County to the local community, the $100,000, a million dollars, ten million dollars, is just insignificant. What's really important is that things are preserved and that we not only look at the limited, this project to this island, it affects all the islands, and when you bring an expert in here that can point these things out or rates them or explain them or diffuse them or eliminate them or enlighten us how far it really goes, then I don't think any project should be done until we've looked further, then just the surface of the island, the aquifer, the outflow to the ocean. Is that enough, that in itself is enough, that we should not move forward, but with the other things in mind, I think those are very serious considerations, and I'd like them to be addressed if the panel could address those and have those addressed and the answers brought forthcoming. CLARKSON: Thank you. RATHBURN: Yeah, sorry, I know I took my time but there was a couple of other things, but I'll just wait. Thank you. CLARKSON: Any questions for Mr. Rathburn? No? I do want to follow up on Ms. Aflable's question with the Applicant about what happens to water that is not put in a bottle at the facility. I know there was a restriction on use of the County sewer system, but what, where does all the water go? FUKE: My understanding is that they're going to extend the sewer line to the property and any excess waste including the water would go into the County system. It should also be noted that EXHIBIT D 34 this is not going to be a plastic manufacturing plant. They're going to be bringing in those, in small little collapsed type of bottles and then having it blown up, and that's how like, you know, the other, like Hawaiian Springs, handle their bottling. CLARKSON: So, there won't be any other form of waste disposal of water other than either into bottles or into the County sewer system? FUKE: Not to my knowledge, no. CLARKSON: Okay, thank you. Are there any other persons wishing to testify on this matter? If not, I'll ask for a motion that public testimony be closed. REPLOGLE: I move that public testimony be closed. CLARKSON: Is there a second? DELA CRUZ: Second. CLARKSON: All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Public testimony is closed. At this time, I'll BUNN: Chair, may I take care of a brief housekeeping matter? Earlier in my testimony, I mentioned that there were documents that I wanted to have in the record. There are three. One is the exemption from the matter that was heard earlier this morning, and I believe that Mr. Fuke mentioned putting that in the record. There are two that have to do with this property. One is entitled "Assignment of Commercial Real Property Purchase and Sale Agreement" and another is "Amendment, Assignment, and Assumption Agreement and Consent" and those are documents between Pi`ilani and the owner of the property. CLARKSON: And, and you're submitting that as written testimony? BUNN: No, I would just like to submit them to have them in the record. Is that appropriate? HALL: Well, you guys have to review them before you make a decision if they're in the record. BUNN: Really? CLARKSON: Yeah. BUNN: They are the documents I described concerning the authority, I mean the landowner's authorization of Pi`ilani to drill water. If it upsets things, I won't seek to have this admitted. EXHIBIT D 35 CLARKSON: I think it would upset things to have written documents introduced now. We would have to pause as our Corp. Counsel says to review it. BUNN: Okay. May I submit the exemption? CLARKSON: Was that already included in a communication from Mr. Fuke? BUNN: That's my understanding. KAY: They've already been distributed. BUNN: Okay, thank you. CLARKSON: Where are we? Motion for action? HALL: Mm-hmm. CLARKSON: At this time, I'll ask one of the Commission[ers], to make a motion for action so that we can discuss it. REPLOGLE: I would like to make a motion. I move that the application for the Special Management Area Use Permit Docket No. SMA 18-000070 be denied for the following reasons. In the information I have on public trust factors for approval or denial, number 3, the agency needs to apply the assumption in favor of public use access, enjoyment, and resource protection. All the testimony we've heard through since September with the exception of Pi`ilani Partners and their advisors has been against having this done, and that suggests that this would go against the will of the people or the resource protection section of that statement, and right at this time now in February, the Department of Land and Natural Resources is now holding their, Commission on Water Resource Management has scheduled hearings throughout the month for public input on the management and water resource protection within the State, and I think it would be irresponsible of us to go ahead and grant this permit while this process is ongoing and beginning to happen. And, it's my contention that we should allow the hearing process to take place, see how it all comes out, what the Water Resource Management Commission comes up with, and at that point, should they come up and say yeah, we should sell water or what then, we can revisit this at a much later date. To go ahead and grant this now, I don't think would be serving the public interest because as I've said, we've heard a lot of people speak against it, and in terms of protecting our resources. When this first started out for me personally, I was grasping at I can't believe the State has left that whole area undesignated below the line. HALL: Okay, wait, I'm going to just pause you. Sorry, point of order. REPLOGLE: Yes? EXHIBIT D 36 HALL: Are you finished with your reasons, because if you're finished with your reasons, we need a second, and then you can go on to discuss this— REPLOGLE: Okay HALL: But, do you have more reasons? REPLOGLE: It's part of the reason. HALL: Okay. REPLOGLE: Okay, so HALL: —Let's try to be concise and clear with your reasons, okay? REPLOGLE: Okay. HALL: Okay, thank you. REPLOGLE: The reason being that the State had, they had no answer or anything for this application, and right now, it showed up. They're having their public hearings because it's time to revamp what's going on with water in the State, and for those, that reason, we should deny this application. Thank you. CLARKSON: Is there a second? There being no second HALL: —The motion is dead— CLARKSON: ead CLARKSON: —the motion dies. HALL: —We're still looking— CLARKSON: We're still looking for a motion for action. REPLOGLE: I hate tomay I say something again? Is a continuance a possibility or has this gone too long? HALL: We need a motion first before there is discussion. REPLOGLE: I would like to make a motion that this issue be put into a continuance until after the State has completed its public outreach as to water resource management throughout the State and possibly comes up with the answer we're all waiting for, or not waiting for, but we'll have an answer. CLARKSON: In regard to that, before I make a second or request a second, isn't there a time limit on this application whereby if we don't act, it's automatically approved? EXHIBIT D 37 KAY: We need to consult the rules for a moment. May I see it? [Addressing Mr. Darrow.] Okay, thank you, Mr. Chair for waiting. So, this is going to fall under Planning Commission Rule 9-11(f), Decision and Order. It reads, "Within sixty days following the close of the public hearing[(s)], or a longer time period as agreed to by the applicant, the commission shall either deny or approve the application. The decision, whether to grant or to deny the application, shall require a majority vote of the total membership of the Commission. 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. The applicant may request the Commission to defer action on the application. A majority vote of the total membership... is required if applicant requests to defer action on the application. In the event the Commission fails to render a decision to defer action within the prescribed time limit, the request shall be considered denied." So, that first paragraph speaks to if the Commission, what their time frame is and if they fail to render a decision unless agreed to by the Applicant. CLARKSON: Thank you. So, we have awe have a motion. Is there a second? Would you please restate your motion, Commissioner Replogle? REPLOGLE: I make a motion that we continue this application, for a continuance of this application until such time as the State Water Commission on Resource Management can complete its public hearings and render its findings. It may be a while, but I don't that's my motion. That we continue this until the State has come up with its new water regulations, if you will. CLARKSON: Okay, is there a second? IKEDA: I'll second. I'll second. CLARKSON: It's been moved and seconded that— KAY: Oh, I'm sorry, just a moment. If it's the case that this moves forward and the Applicant does not agree to it, then unless the CWRM issue is dealt with within the next 60 days, the application will be considered denied. CLARKSON: Wait a minute, I don'tI need some advice as to why the Applicant affects that paragraph one, the Applicant's approval is relevant to the paragraph one. DARROW: Okay, we're looking at Planning Commission Rule 9-11(f), number one, okay? So, the hearing has been closed. You have 60 days to render a decision. If you continue this open- ended without the Applicant agreeing to that continuance, after 60 days, the application will be denied. So YEE: Or, or if the Applicant EXHIBIT D 38 DARROW: —The Applicant agrees. So, that would be, it may be appropriate to ask the Applicant if they agree to allow the continuance beyond the 60 days. CLARKSON: And, so if they agree, then it's not automatically denied? DARROW: Correct. REPLOGLE: We would in essence be waiting for the outcome of this public intake for the Water Commission. DARROW: And that—that would take some time as mentioned. REPLOGLE: I understand that. DARROW: Yeah. CLARKSON: Do we have to ask that, get approval or disapproval from the Applicant before we make our motion? I mean, before we vote? DARROW: Well, I would suggest that. I mean, again, if you vote now without their acceptance or agreement, then after 60 days, the application is considered denied. CLARKSON: Up to you BUNN: On behalf of the Applicant, I do just want to point out and no, the Applicant is not going to agree to an indefinite continuance. I know something about the Water Commission process. It is an opportunity for public testimony on the water development planning process. That's a continual process that's been going on since the Water Code was enacted. Every water plan gets, is supposed to be updated every ten years. That could go on indefinitely, and that's not something the Applicant can agree to. It needs some finality. CLARKSON: Okay, thank you. BUNN: Thank you. CLARKSON: So, it's been moved and seconded to continue this matter. Is there any discussion? I mean, I have a comment about it if no one else does. I'm going to go last. I'm going to vote against this motion because I think that the presence of numerous wells into aquifers all over Hawaii for private benefit, private water systems, clearly show that that is allowed in the State, and there's no law against making use of public trust water for private gain. But, if there's no further discussion, would you call the roll please, Christian? KAY: Yes, thank you, Mr. Chair. Commissioner Replogle? REPLOGLE: Aye. EXHIBIT D 39 KAY: Commissioner Ikeda? IKEDA: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: Chair Clarkson? CLARKSON: No. KAY: Thank you, Mr. Chair. Motion carries four, nothing. CLARKSON: Okay, that concludes KAY: Pardon me, four to one. My apologies. Thank you. DARROW: Mr. Chairman, I'm sorry, if I could just interject. It might be appropriate at this time just to confirm with our Corporation Counsel what, what the action will result in after 60 days. Is that correct as far as the reading of the rules that after 60 days, this application will be deemed denied? Unless by chance, somehow the rules are completed, the rulemaking process, and we're able to come back. HALL: I don't even know what that question was. DARROW: After 60 days HALL: —What is that question? I really don't—it all comes down to the definition of close of public hearing. We've continued many, many hearings, and the time doesn't start, I don't see anywhere in here that it talks about agreement of the applicant, but, you know, if that's the way that you guys have been doing it, that's how you've been doing, but honestly I can't speak to whether it would be within 60 days or not at this point. I'd have to look, I'd have to do more research. CLARKSON: I thought we just closed public testimony. HALL: Oh yeah why. They're not the public. Who else would we have [inaudible] CLARKSON: Well, I'll let the legal staff wrangle this one. The discussion ended at 2:29 p.m. EXHIBIT D 40 Secretary's Note: At 2:31 p.m., after the approval of the January 3' 2019 Minutes, Mr. Fuke approached the Commission, and had the following discussion with the Commission on the record. FUKE: Mr. Chairman, like I realize that this is kind of like maybe out of sync or out of order, but, you know, on the last item like where the Commission had voted to defer, I don't know whether, according to Robert's Rules, the Commission would be in a position to reconsider its motion. I know that they can reconsider its motion either at this meeting or the subsequent meeting, and if you don't reconsider it, then obviously, you know, that opportunity is lost. My understanding, and as noted earlier by Ms. Bunn, is that from the Applicant's standpoint, they kind of want to have some closure, you know, on this, and largely because if there is a decision made, then the Applicant would know what its next step is. Whether the next step is to if, for example, you know, hypothetically if it's denied, then the Applicant would know its options as far as whether it should or should not appeal. If the application is approved, well, that's another matter, then the Applicant would be in a position to proceed and then, you know, I guess, all I'm saying is that from the Applicant's standpoint, it would appreciate a decision one way or the other rather than you know like continuing almost like—this application was filed in April, July of last year, and we had the hearing in September [sic -August], and it's kind of like been going on and on. And, we cannot help but believe that almost all of those issues that were raised at the first meeting and this meeting have been the same issues. I don't know what is necessarily going to be gained by having a continuation on the State Water Commission action that might be interminable. CLARKSON: I sympathize with you there, sir, but I don't know what to do. There was a motion for denial which would have been definitive, but there was no second. Then, there was a motion to defer, we seconded and voted four to one. I don't know what other option we can bring, this motion to deny up again or to approve it at a future meeting FUKE: —Well, let me CLARKSON: If the rules permit that, if Robert's Rules permit that, but FUKE: My understanding is that the only way that can be done isbecause the Commission already made a decision, that the Commission to be able to reconsider that, they would need to have a motion made to reconsider the decision to defer. And, the maker of the motion has to be someone who voted on the prevailing side which would be the four individuals. CLARKSON: Well, we're consult with our legal staff on, on that. We take your request for some kind of definitive action to heart. HALL: He is correct about the reconsideration. IKEDA: That's right. EXHIBIT D 41 HALL: So, somebody could motion for reconsideration, either this meeting or next meeting, and then after that, that right to have a motion to reconsider would expire. DELA CRUZ: So, Sidney, you guys would rather have a denial than an extension? I mean would you guys rather have a denial or an extension? I mean I understand that part, but you know what I'm getting at, right? I mean, if you guys want a definitive answer so it's either going to be a yes or no? FUKE: Well, the answer to your first question, no we would not prefer a denial. DELA CRUZ: Well, that's what I kind of asked you because the way it looks like now, that's what it's going to end up coming, you know what I mean? FUKE: So, like all CLARKSON: Versus a continuance? FUKE: Well, the continuances would be like for 60 days maximum because this is the date CLARKSON: Right FUKE: the Planning Commission acted on CLARKSON: Right, you rather be denied now then wait 60 days to find out FUKE: Well, because the reason for the continuation was pending the input from the State Commission on Water Resource Management public input program, and I think that Ms. Bunn had indicated its kind of like an ongoing process, so there's no necessary terminus point behind that. Ifif you can, if the State, if the motion were like such that you were going to defer it for a specific point in time and not necessarily tied in with all of the, you know, until the CWRM finishes its study, then, then that would be one thing. But, the way the motion was framed and approved is kind of like an in terminis process. So, we would suspect that at the end of the 60 - days, you still wouldn't get that input, and so, it would amount to where we are today. CLARKSON: At the end of 60 days, it would amount to a denial. FUKE: There would have to be, unless the Commission decides to make, you know, make another motion, because, you know, the motion right now, and the acted upon motion is motion to defer for a maximum 60 -day period. CLARKSON: Yes, but we're being told that, no, there was no period in there, but we're being told that if we do not take any action within 60 days, it will automatically be denied. FUKE: Correct. EXHIBIT D 42 CLARKSON: Okay. So, to reiterate Commissioner Dela Cruz's question, would you rather have a definitive yes/no vote at this meeting or take your chances for the next 60 days? DARROW: If I could interject here. There's a certain protocol as far as action on the committee. I mean, I don't know, this would be our Corporation Counsel's call, but this particular agenda item has been voted on and pretty much everybody that was here on the matter has left. And, so it wouldn't be good, you know, appearance if we go forward and do any action on this without it being, you know, publicly notified and everything. I think if we're going to if the Commission so wills to do another action on this, it should be at the next hearing. Thank you. FUKE: Given that then, Mr. Chair, I understand what the staff is saying. I would like, probably on behalf of the Applicant—you know, the answer to the first question is that, the reason why there should be some measure of closure, you know sooner than later, is that the Applicant would know rather there is a basis for appeal and, if so, whether they want to do the judicial route or some other alternative or actually start construction. Because the, you know, like the motion and the decision was to kind of like continue almost like an indeterminable amount of time, perhaps as an alternative, if this item could be agendized for this and the subse—and if no action is done by the next meeting, then at the subsequent meeting, just having it agendized, then it gives the Commission the opportunity to render a decision or reconsider or whatever, you know, so. CLARKSON: I don't know who has the power to place items on the agenda. DARROW: The app— I mean, again HALL: —You do DARROW: —The Chairman can do it as Malia said, but also the Applicant can request it, and then we can place it on the agenda, and the Applicant can propose their request to you. It it appears that if they do request that, that there would be a notification process. FUKE: You mean notification on the Applicant's part DARROW: Correct FUKE: to surrounding property owners? DARROW: If you submit the request, then at that point, you would have to notify. I mean, it's not something that I believe is unnotified. It's going to go in the paper, and we should notify surrounding property owners. CLARKSON: Well, even if I put the item on the agenda DARROW: Then we would notify. CLARKSON: Right. EXHIBIT D 43 DARROW: Right. CLARKSON: Okay. FUKE: So, therefore, the Applicant CLARKSON: Please put this item, please put a reconsideration of this motion—of this deferral on the agenda for the next meeting. DARROW: Okay. To be REPLOGLE: I DARROW: Oh, I'm sorry. HALL: I don't think we'll REPLOGLE: I don't HALL: Oh, no, go aheadoh, no, I was just going to say, okay, you get to decide what's on the agenda, but you can't call it a motion for reconsideration `cause you were on the losing side. The motion for reconsideration has to come from the winning side. CLARKSON: This would be on the agenda and if there's a motion, we'll know about it in a month. DARROW: I'm sorry, Malia, you lost me. CLARKSON: I didn't say DARROW: The winning side would be which side? REPLOGLE: No, the Chairman can't make this motion `cause he was losing CLARKSON: I wasn't making a motion for reconsideration. I was making an agenda item for reconsideration. DARROW: Okay. CLARKSON: Of this topic. DARROW: —Yeah, just so I'm clear CLARKSON: Of this Applicant's application. EXHIBIT D 44 DARROW: Just so I'm clear as far as staff, it's still my understanding that the Applicant has to submit a request for consideration. Is that correct? REPLOGLE: I would say so because as you brought up DARROW: —That would be my thought— REPLOGLE: as you brought up, the public has left. DARROW: Right. REPLOGLE: And, now we're having this private discussion. DARROW: The reconsiderations within the rule that I see are of the Applicant's request. They request the reconsideration. CLARKSON: Well, then why'd you tell me I could put it on the agenda? HALL: You can put—you have control of putting items onto the agenda, but a reconsideration is a special request either made by the applicant or a motion made by the winning side. CLARKSON: All right, then we'll just leave at that. DARROW: Okay. CLARKSON: Pi`ilani Partners application shall be on the next month's agenda. Period. DARROW: Okay. REPLOGLE: No, he can't do that. DARROW: That's what I thought Malia said, but FUKE: Mr. Chairman, can I just put in one comment in? CLARKSON: Well, I'm just going by, I'm just going by Corp. Counsel's advice. She said that I could put an item on the agenda, so FUKE: But, I think that the point, Mr. Chairman, is like when you put it on the agenda, then obviously there has to be some sort of anticipated action that's going to be taken on any item on the agenda. So CLARKSON: I disagree that— FUKE: —Well, the question then is if it's on the agenda, then what is the Commission discussing or I don't know what is the public discussing? You know, would they be given a EXHIBIT D 45 chance to provide the same level of testimony? The Applicant as well? So, I think there has to be some idea as far as what is on the agenda, the purpose of having that on the agenda, so, given what the staff said, I think, probably our only recourse is to officially request for a reconsideration motion at which time then it would be agendized. CLARKSON: Okay. I'll leave that for you to communicate with staff DARROW: Thank you. This discussion ended at 2:43 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT D 46