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HomeMy WebLinkAboutCOM 0064.016 2018-2020 P1PG 0o014. 2 - COUNTY CLERK COUNTY OF HAWAII opposition to Bill 16 amending Ordinance 92-122 re. Pi'ilani Partners for Hawai'i County Council Planning Committee 21119 FEB 19 All 9: 36 10:15 AM Tuesday, February 19, 2019, West Hawai'i Civic Center from Cory Harden, Sierra Club, Moku Loa group, PO Box 1137, Hilo 96721 333cory©gmail.com We oppose taking public trust water from a deep, pristine aquifer,to send much of it off-island, spawning plastic waste that will persist for generations--all to enrich a few people. 1 - INDUSTRIAL ZONING Should the lot lose its industrial zoning? The original Ordinance says"should any of the conditions not be met or substantially complied with in a timely fashion,the Director shall initiate rezoning of the area to its original or more appropriate designation." Ordinance 92-122, Bill 668, N(5) I did not go through the multiple boxes of Planning Department files to see if every condition was met, but it seems the burden of proof is on the applicant. 2- NOISE How will noise limits be enforced to protect the peace of Wailoa Park? At the December 6 Planning Commission meeting, the Planning Department expressed doubts about its ability to monitor and enforce noise limits. Noise will be generated by truck engines, backup beepers, loading, unloading, operations inside the plant, and maybe well pumps and a recycling center. 3-WELL SHUTDOWN What is the decommissioning plan? If the well flows freely with no pump, and the plant goes out of business, who will stop the flow and ensure the well never leaks? 4- STATE OFFICE OF PLANNING (SOP) Were SOP recommendations followed? "public trust resource evaluation required by the ICA[Hawai'i Intermediate Court of Appeals],should be applied ... "Input and comments should be specifically sought from the State Commission on Water Resource Management..." June 27, 2018 letter from SOP to Michael Yee, director of the County Planning Department;it refers to. the ICA decision on Kauai Springs, Inc., v. Planning Commission of the County of Kauai, April 30, 2013 5 - ENVIRONMENTAL ASSESSMENT (EA) Is an EA is triggered by these factors? e use of water, a public trust resource, from a pristine aquifer(see 6-AQUIFER CONTAMINATION) ® major construction for a block-long sewer line extension, road widening, sidewalks, traffic controls, and streetlights, causing multiple environment impacts, using government land ® impacts from future projects attracted by the improved road and sewer system � Comm. No. (04•I.`(0 Ref. To: PDPC Ref. Dote FEB 1 9 2019 O Special Management Area designation ® tsunami evacuation zone location Pi'ilani Partners may be mistaken in claiming an EA exemption. They say: The Environmental Counsel [sic] HAS PROVIDED AN EXCEPTION [capitals added]for the construction of"small facilities or structures...including, but not limited to...offices...designed for total occupant load of twenty persons or less per structure," and "[w]ater, sewage, electrical gas, telephone, and other essential public utility services extensions to serve such structures or facilities [.1" HAR 11-200-8 (a) (C) and (D) letter from Pamela Bunn. Pi'ilani Partners lawyer, to Joseph Clarkson, Planning Commission chair, December 26, 2018, p. 2 But HAR 11-200-8 (a)says [capitals and spacing added] actions"MAY be declared exempt [not"shall"] ... provided that agencies declaring an action exempt under this section SHALL [not"may"] obtain the advice of other outside agencies or individuals having jurisdiction or expertise as to the propriety of the exemption." The HAR 11-200-8 (a) (3) exemption list does NOT include industrial facilities, like the bottling plant. HAR 11-200-8 (a) (3) (C) only exempts single-structure projects.. "The following list represents exempt classes of action...(3) Construction and location of SINGLE [capitals added] ...facilities or structures...(C) Stores, offices, and restaurants designed for total occupant load of twenty persons or less per structure, IF NOT IN CONJUCTION WITH THE BUILDING OF TWO OR MORE SUCH STRUCTURES..." [capitals added] But there may be a second structure. Pi'ilani Partners said they may lease space to a recycling operation. (This will also increase traffic.) "...an area within the subject site shall be set aside for a recycling and redemption center...said area shall be made available at a nominal ground lease/rent fee to potential operators, subject to appropriate and reasonable terms that do not adversely impact the operation of the proposed bottling plant, the neighborhood, and environment and subject further[meaning unclear]to the operator securing the appropriate land use and related permits." New Condition 12 from Pi'ilani Partners'"Proposed Amendments to SMA Permit(No. 18-000070), February 7, 2019 HAR 11-200-8 (b) says"All exemptions under the classes in this section are inapplicable when the CUMULATIVE IMPACT of planned successive actions in the same place, over time, is significant, or when an action that is normally insignificant in its impact on the environment may be significant in a particularly SENSITIVE ENVIRONMENT." [capitals added] Pi'ilani would have CUMULATIVE IMPACTS from road and sewer construction, a recycling center, and future development attracted by road and sewer upgrades. And it is an industrial operation in a SENSITIVE ENVIRONMENT: ® a Special Management Area 6 near peaceful Wailoa Park and Ho'olulu recreation complex ® planned for low-impact use by EnVision Downtown Hilo and Hilo Bayfront Trails 6-AQUIFER CONTAMINATION Who will ensure this is prevented? At the August 13, 2018 Planning Commission meeting,Tom Nance, a hydrologist hired by Pi'ilani Partners, said they will drill in such a way that "the salt water above [the fresh water aquifer] doesn't come in, and we won't take it too deep so we don't pull salt water from below." minutes of August 13, 2018 Windward Planning Commission meeting, p. 7 Nance said the well design is based on a drilling program done by Don Thomas and others at the University of Hawai'i at Hilo. An article Thomas wrote about that program says"...it has not yet been possible to obtain samples of the freshwater zone without contamination from the deep saline fluids..." Hydrogeology of the Hawaii Scientific Drilling Project borehole KP-1:2. Groundwater geochemistry and regional flow patterns, Journal of Geophysical Research Atmospheres 1011(B5):11683-11694 - May 1996, https://www.researchgate.netlpublication/241551736 Hydrogeology of the Hawaii Scientific Drilling Pr oject borehole KP-1_2 Groundwater geochemistry and regional flow patterns If contamination is a problem when getting samples, will it be a problem when drilling a well? The State Office of Planning (SOP) says the aquifer" 'is currently used as a drinking water source, fresh, irreplaceable, and is highly vulnerable to contamination.' " [quoting Pi'ilani Partners' application] letter from Leo Asuncion, director, State Planning Director, to Michael Yee, County Planning Director, June 27, 2018 7- KAUAI DECISION Could the amendment to Ordinance 92-122 be challenged on this basis? Excerpts from the Hawai'i Supreme Court decision on Kaua'i Springs, Inc. vs. Planning Commission of the County of Kaua'i, February 28, 2014: "...no person or entity has automatic vested rights to water." p. 78 "Private commercial use is not protected by the public trust... a 'higher level of scrutiny' is therefore employed when considering proposals for private commercial use." pp. 80—81 "The agency must apply a presumption in favor of public use, access, enjoyment, and resource protection." p. 81 "The applicant is `obligated to demonstrate affirmatively that the proposed [use] [will] not affect[a protected use], in other words, the absence of evidence that the proposed use would affect[a protected use] [is] insufficient[.]' Waiola 0 Molokai, 103 Hawaii at 442, 83 P.3d at 705..." p. 82 "When an agency or other deciding body considers an application for permits under circumstances that requires the deciding body to perform as a public trustee to protect a public trust resource, the agency or other deciding body must make findings sufficient to enable an appellate court to track the steps that the agency took in reaching its decision." p. 83 "...a lack of information from the applicant is exactly the reason an agency is empowered to deny a proposed use of a public trust resource." p. 85 8- COMMUNITY BENEFITS? Do payments fulfill public trust obligations? Pi'ilani Partners initially refused to consider paying any fees for the aquifer water. But it takes tremendous government and private resources to protect aquifers—caring for forests that catch water and allow it to migrate underground, preventing contamination, and preventing over-pumping of water. Pi'ilani eventually offered $100,000 in student financial aid to offset public trust impacts. But Earthjustice has questioned whether community benefit payments fulfill public trust obligations. "Instead of following the precedent in the landmark Waiahole case, the majority applied its own diluted interpretation suggesting, for example,that community benefit payments could fulfill the public trust." Hawaii High Court Fixes Flawed Footnotes in Mauna Kea Decision, But Problems Persist, by Isaac Moriwake, Staff Attorney, December 21, 2018, https://earthjustice.org/from-the-experts/mauna-kea-thirty-meter-telescope-hawail-supreme-court 9- STATE CITIZENS? Are the project owners citizens of the state? HRS §174C-2 says"Declaration of policy. (a) It is recognized that the waters of the State are held for the benefit of the CITIZENS OF THE STATE [capitals added]. It is declared that the people of the State are beneficiaries and have a right to have the waters protected for their use."