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HomeMy WebLinkAbout2019-03-07 Hearing Transcript - Piilani Partners Request for Reconsideration SMA 18-000070WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MARCH 7, 2019 A regularly advertised hearing on the request for reconsideration by PIILANI PARTNERS, LLC (SMA 18-000070) was called to order at 9:30 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, Thomas Raffipiy, John Replogle. ALSO PRESENT: Michael Yee (Planning Director), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner), Alex Roy (Planner), Jessica Andrews (Planner), and Sarah Hata-Finley (Commission Secretary). And 47 members from the public in attendance. APPLICANT: PIILANI PARTNERS, LLC (SMA 18-000070) Hearing on applicant's request for reconsideration of the Windward Planning Commission's decision, at its February 7, 2019 meeting, to defer action on applicant's request 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 until the Commission on Water Resource Management updates its Water Resource Protection Plan. 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: The next item on the agenda, Item No. 2, is an application from Piilani Partners for a reconsideration of the Windward Planning Commission's decision at its last meeting on February 7 t to defer action on Applicant's request for a Special Management Area Use Permit. Once again, I remind people who wish to testify on this matter to please sign up at the front desk. Will the Applicant or their representative KAY: Sorry Mr. Chair, I'm not going to give another presentation of this. Don't want to make it five in a row, but I just wanted to update the Commission. We did receive several correspondences since our last hearing that have been sent out to the Commission to this point. Thank you. CLARKSON: Yes, thank you. At this point, I'm going to ask the Applicant to come forward. Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? : J0k frel h►VOII:ir1�:3 CLARKSON: Please introduce yourself, and state the reasons for making this application for a request for a reconsideration. BUNN: Good morning, Mr. Chair, Commissioners, Director, Corp. Counsel, staff My name is Pam Bunn, and I represent Piilani Partners. I'm not going to repeat what we've already said in our application. I'll be brief and answer any questions the Commissioners have. The action that was taken on February 7fh was to basically defer action on Piilani's application, and I want to quote it, "until such time as the State [Water] Commission on Resource Management can complete its public hearings and render [its] findings" regarding its update to the statewide Water Resource Protection Plan. That's how it was stated on the record of actions. As stated in the meeting, it was stated variously, but it was very clear that the Commission was looking for some direction from the Water Commission. The effect of this Commission's February 7 t action is to de facto deny Piilani's application because the Water Commission is not going to finish its process by April 8th. So, Piilani's request today is a very narrow one. It's requesting the Commission to reconsider that action. If it's granted, it will effectively undo the action taken at the February 7 t meeting returning matters to the state they were immediately prior to the action being taken. So, the way matters stood at that point was that public testimony on the SMA application was closed, and a motion to deny Piilani's application had failed for lack of a second. It's clear in taking the action that it did that this Commission was waiting for some kind of answer from the Water Commission. It's also clear, however, that the Water Commission will answer any question concerning Piilani's proposed well when it considers Piilani's well permit, which is a step in the process. I just want to talk briefly about the roles of this Commission as opposed to the Water Commission, because these roles are very clearly set out in the Constitution, statutes, regulations, all of which define the scheme, and there appears to be some, some blending. This Commission is designated as the authority, the Special Area—the Special Management Area authority under the Coastal Zone Management Act, which is HRS 205-A. It's charged with carrying out the objectives, the policies, and procedures of Part 2 of the CZMA dealing with SMA permits, and that's in HRS, Chapter, Section 205-A, 27. To carry out this conditions mandate, the Commission is required to adopt certain guidelines for review of SMA Applications. That's mandated in HRS, Section 205-A, 26. The Commission did as mandated in Section 9-11(e) of the Planning Commission's Rules. I'm sure you're all familiar with the criteria that are in Section 9-11(e) of your rules. Piilani has addressed each of those conditions in its application and in its presentations before this Commission, and the Planning Department's recommendation on Piilani's application addresses each condition. The role of the Planning Department on thisI'm sorry, the Planning Commission on this application is to apply those criteria to the application to determine whether to grant or deny the application. Now, here there's a little bit of gloss that may have created some confusion because of the implications of the Public Trust Doctrine. As we've discussed, the Public Trust Doctrine is a EXHIBIT B 2 dual mandate. The two mandates are protection of the resource and maximizing reasonable beneficial use. In this case, because we are not in a water management area, so Piilani does not require a water use permit, it falls on this Commission to consider the second of those mandates, reasonable beneficial use. And, we know from the Hawaii Supreme Court in the Kauai Springs case that the way the Commission evaluates whether the use is reasonable beneficial is by determining whether it will interfere with any public trust use of water. The answer is clearly no. Even at the maximum projected use, Piilani will still use less than .1 percent of the sustainable yield of the Hilo Aquifer, and that's after all current and future projected uses and DHHL reservations are accounted for. There is no public trust use that will be deprived of water by granting Piilani's permit. The other mandate of the Public Trust Doctrine, protection of the resource, is given by Constitution, statute, and rule to the Water Commission. Article XI, Section 7 is the provision of the Hawaii Constitution that states that the State has an obligation to protect, control, and regulate use of Hawai`i's resources for the benefit of its people. That provision is often referred to as the constitutional mandate of the Public Trust Doctrine in Hawaii. That same provision also provides for the creation by the Legislature of a water resources agency to, among other things, protect ground and surface water resources. The Legislature created that agency. That's the Water Commission. It also enacted the Water Code, HRS, Chapter 174C, Part VII of which concerns the Water Commission's mandate with respect to wells. Several statutes in there. So, as made clear in the draft Water Resources Protection Plan update that the Commission is now working on, the purpose of Part VII of the Water Code and of the Hawaii well construction and pump installation standards used by the Water Commission is to ensure protection and optimization of ground water resources, and those, that's in attachments that have been attached to our application. The Commission's February 7th action turns the constitutional and statutory framework upside down. The Commission appears to be deferring to the completion of the WRPP update which results in a denial of Piilani's application without ever considering the criteria or making any determination based on the criteria in the Commission's Rule 9-11(e). Moreover, the Commission's application will prevent the Water Commission from answering whatever question the Commission had about Piilani's well permit because if the, if the SMA application is deemed denied, the Water Commission will never get to our well permit. It won't consider it, and you can see that in Exhibit F to our motion which is a schematic diagram from the WRPP of the well permitting process that's used by the Water Commission. So what Piilani respectfully requests is for this Commission to do its job under the CZMA and evaluate the criteria that are in the Commission's Rule 9-11(e), and at the same time to move out of the way for the Water Commission to do its job and to evaluate whether Piilani's proposed well will have any effect on the protection of the resource. If the Water Commission believes that Piilani's proposed well will put the resource at risk, it won't grant the well permit. It has standards that it applies to. EXHIBIT B 3 So, deferring to the Water Commission to consider the well permit is appropriate and, I believe, required by statute. But, deferring to the WRPP update, so this Commission, rather than the Water Commission, can decide whether the well is appropriate is not in keeping with the statutory scheme. So, we would respectfully request that the Commission reconsider the indefinite continuance it imposed on February 7th, apply the SMA criteria, and the Planning Department's recommendation and wait for the Water Commission to rule on Piilani's well permit. Thank you. I'll take any questions. CLARKSON: Are there any questions for the Applicant? If not, thank you. BUNN: Thank you. CLARKSON: Please be seated. We have at this time 26 people signed up to testify on this matter. I'd like to remind the people who are going to testify that this is a request for a reconsideration. We are well aware of all the original testimony on the merits of the project. But, if you still wish to testify on this reconsideration action, please do so. At this time, I'm going to call up four testifiers at a time. Len Gambla, Dwight Vicente, Lyman Lincoln, and Cory Harden, if you would come forward? Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? GAMBLA/LINCOLN/HARDEN: Yes. VICENTE: [No response.] CLARKSON: Please introduce yourself, speak into the microphone, and we'll proceed on to my left, the testifier to my left. GAMBLA: Thank you, sir. I'm Len Gambla. Good morning and aloha everybody. Thanks for taking your time to listen to the folks who took off work today to come testify. Regarding the request to reconsider the SMA Use Permit to develop the potable water well, I am not in favor of deferringI mean, I'm in favor of continuing to defer. I'm not in favor of the project. When I hear the individual speak about the public use, it is a public use, its public trust water. I get it, reasonable and beneficial use of the water. If it's reasonable and beneficial, to me, it would be something like a public/private partnership. To me that would make more sense than a completely private entity taking the water, benefitting. You know, there's a big, there's an outflow of water, but I wouldn't see the inflow of money from a financial perspective that would directly benefit the County. It might benefit the State, but I don't think the money, that would come back to the County in particular. So, to keep it brief, I'm not in favor of it. CLARKSON: Please speak into the microphone, introduce yourself, and proceed. LINCOLN: Good morning. My name is Lyman Lincoln, and I'd just like to say that I oppose the project, and I'm against having this reconsidered. Thank you. EXHIBIT B 4 VICENTE: Dwight Vicente representing the Hawaiian Kingdom. You heard about the Public Trust Doctrine. It comes from Article IV, Section 3, Clause 2 of the U.S. Constitution which is limited to one territory, the Northwest Ordinance of 1787, Article 5. It does not apply here. They've been applying it to lands, Crown and Government lands rebranded as Hawaiian Home Lands, the L 1,750,000 acres only. So, unless these lands are considered Hawaiian Home Lands, that does not apply, and even that is questionable, because this is, as I stated, the Hawaiian Kingdom. Crown and government lands. The resources belong to the Hawaiian Kingdom whether it's mineral or underground water, water in the stream, even the ocean. So, the question is who is claiming they own these lands? Are they nationals of the Hawaiian Kingdom or are they foreign nationals who remained here after the treaties ended in 1897. What the United States did in 1898, they extended their treaties with those countries whose treaties ended with the Hawaiian Kingdom to this kingdom which the U.S. Constitution does not authorize. Treaties for the U.S. is to remain the 13 states only. It does not go beyond. And, then the, what they're doing is they're using the Downes vs. Bidwell to claim jurisdiction over, not only the Hawaiian Kingdom, but also other countries, and they call them under that scheme incorporated or unincorporated territories. While the 1.7150,000 acres were called incorporated territory, and was destined to become a fake State of Hawaii. And, the unincorporated territories you include South Korea, Japan, Philippines, Guam, Northern Marianas, Micronesia, Panama Zone, Puerto Rico, Virgin Isles, Guantanamo Bay, Germany, Turkey, Spain, Middle East, and wherever you find the U.S. military. All you gotta do is read the rape cases that happened in Okinawa that the U.S. military was a part of. They claim that these—Okinawa is a territory of the United States, so they don't get prosecuted under Okinawan law. It's not only a military base but also the surrounding lands. So, there's a lot of questions that go into dealing with laws of nations, and the United States as I stated is only 13 states. There's no amendment to the Constitution to go beyond that. They need to amend the Constitution through Article V which has not happened so far. Thank you. HARDEN: Good morning. Cory Harden for Sierra Club Moku Loa Group. Thank you for your service on the Commission. I hope you will stand firm on your previous decision. I hope you folks know whether the owners of Piilani are citizens of the State. The resources are held in trust for the citizens of the State. I don't know if they are citizens. We differ with many points in the motion for reconsideration. For example, Piilani Partners says the new draft plan will not have any findings. However, the update we heard about at the hearing last week on this plan says they have a goal of getting a foundation update which excuse me, sounds like findings to me. Piilani Partners says the plan will not come up with new water regulations but the update talks about possibly enforcement rules for people who don't report water use. That sounds like regulations to me. Piilani Partners has said that the Water Commission will not come up with anything material on the SMA application, but at the hearing on the plan last week, there was testimony that was material to the application and that testimony will be considered when the plan is written. I'm just summarizing my written stuff here. EXHIBIT B 5 Piilani Partners says it's not appropriate for you guys to make this decision, but Earthjustice said regarding the Kauai Springs case government agencies have duties under the Public Trust independent of permit requirements. And, Native Hawaiian leaders have opposed Piilani and there's the Public Access Shoreline Hawaii decision saying that the Planning Commission was obligated to preserve and protect Native Hawaiian rights to the extent feasible when doing SMA permits. The Hawaii Supreme Court in the Kauai Springs case said no person or entity has automatic vested rights to water. Also said private commercial use is not protected by the Public Trust, and the agency must apply a presumption in favor of public use, access, enjoyment, and resource protection. Piilani has offered student financial aid to offset public trust impacts, but Earthjustice has questioned whether community benefit payments fulfill public trust obligation. And, lastly, Piilani offered a background and chronology and said nothing about the dozens of testifiers and scores of emails that have come in, in opposition since August. You guys know nobody has come out to support this project except the folks paid by the owners. Thank you. CLARKSON: Thank you. Are there questions for any of the folks who have just testified from the Commission? If not, thank you. Please be seated. At this time, I'd like Hanalei Fergerstrom, Julie Stowell, Kalani Souza, Gyongyi Szirom please come forward. Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? TESTIFIERS: Yes. CLARKSON: Thank you. Please introduce yourself, speak directly into the microphone. In light of the fact that we have 27 people, please limit your testimony to three minutes. Thank you. SZIROM: Aloha, my name is Gyongyi Szirom, and I'm here in opposition to this project. I have two points. One is the aquifer. It's a limited resource, and our population is growing in leaps and bounds. We need to think of the future. So, that's one point. Also, plastic pollution is at a crisis level worldwide, on the island and elsewhere, and it's killing wildlife. It's killing us. Why contribute to the problem? Let's support more ecologically, you know, sound practices. Thank you. FERGERSTROM: Good morning, my name is Hanalei Fergerstrom. I represent Na Kupuna Moku O Keawe, which is a kupuna organization that has representatives from all six districts of this island. We're in opposition to any reconsideration. The previous decision to wait until the findings of the Water Commission—the Commission on Water Resources were made available. I attended the last meeting where the attorney for Piilani bottling plant opted not to accept the option to delay this application, consideration until the, the Council [Commission] on Water Resource Management was completed and available, and said she—and said she accepted the fact that if EXHIBIT B 6 the permit was not granted before the outcome of the Commission on Water Resource Management and the 90 [sic -60] days had passed [inaudible], that it would have rendered the application in default denial. The attorney now wants the Planning Commission to reconsider their own decision claiming there's nothing that would change with respect to the application from the Council [Commission] on Water Resource Management. I disagree with this statement. I attended the meeting at the, of the Commission on Water Resource Management in Hilo last week, where by the way I didn't happen to see the Applicant, and there was a lot of discussion surrounding the Mauna Kea Aquifer. There was a lot of testimony given that directly related to the Mauna Kea Aquifer and the need to understand more of what are some of the impacts known or unknown regarding the tapping of this sealed aquifer. The talk included considering not only not allowing this aquifer to be touched but rather preserved for future generations or a possible back-up in the event of the Mauna Loa Aquifer somehow compromised. This request should be—this request for reconsideration should be denied. The Planning Commission should wait until the release of the findings of the Commission on Water Resource Management is made available. The Planning Commission should hold fast to the decision they made, and you should also note that there has yet to be one person to testify in favor of this project. One of the outstanding statements that was made at the Council [Commission] on Water Resource Management is that they and the local Planning Commission have a right to use their own discretion, and when it comes to matters such as this, we must, we must remember that just because that something is not against the law, it does not mean the project is in the best interest of the public and especially for our children. We should be able to be assured that we have protected their interests. I want to also reiterate what I had said in the last testimony, and I also said it at the Commission—that the State and the counties are merely trustees of resources that were stolen from the Hawaiian Kingdom including the land that is identified by the Piilani bottling plant. Thank you. SOUZA: Good morning, Brother Joe, always good to see you. Thank you guys, thank you everybody for the work you guys do. You know II know how difficult this is. And, thank you everybody for showing up. I've been in communities where this doesn't, in fact, happen. So, it's nice to know that the health of our communities is still engaged in process and dialogue around these things. So, of course, I'm in opposition to the facility. I'm just going to read a quick statement. Some polls recently have found that as much as 43 percent of the American public refuses to believe climate change is even occurring. Recent extreme weather events these last few months have given rise to a few converts from this extreme group of conservatives. As one of several representatives from Hawaii, I am part of the NCAR, National Center for Atmospheric Research, rising voices, indigenous knowledge, and modern science effort. It's ongoing for seven years in partnership with the United Kingdom, United States and its agencies such as NOAA, the National Ocean and Atmospheric Administration, National Weather Service, and FEMA, who I work for as you know. EXHIBIT B 7 Whose scientists overwhelmingly and unsurprisingly believe that we are entering the sixth great extinction moment on the planet. That's for the last 2-1/2 billion years. It's only the sixth time it's happening. Just to make sure that those of us who cut out of science and went surfing understand what I'm talking about. Less than 2 percent of the water available in the world is fresh potable water, drinkable water, could be considered the most valuable necessity on the planet. I repeat, necessity. Water is not a commodity. You do not have an option whether you'll drink or resist drinking. Time and tide eventually, you will need to drink. The untapped, untouched heretofore unviolated aquifer of Mauna Kea, clearly one of the great treasures of the world, is a living legacy we leave our children, our grandchildren, and the unborn future. This our generation has shown the propensity for greed, for indulgence, for self -consumption. The act of sacrificing the potential survival of our future generations for a pittance of GE tax, in an attempt to create County -based revenues while sentencing our children to an uncertain future by resting from them the last great resource to feed our resorts is the height of both political and civil irresponsibility by our elected officials and our appointed officials, now sacrificing sacrificing the well-being of the people of Hawaii for a few dollars is more than reprehensible at the very least. And, at the very best, and I mean this for the camera and those beyond this room, at the very best, that outcome will energize a movement to establish new leadership. With all respect, please excuse the thinly veiled threat. Thank you for your time. Those of you in this room, I know you take it seriously, and I know you guys come down and put forth the effort and commitment. And, thank you for your leadership. Mahalo. STOWELL: Aloha kakou. I'm Julie Stowell. I respectfully request that you deny the Applicant, Piilani Partners, LLC, motion for reconsideration of action taken on February 7 t on the Special Management Area Use Permit application. I oppose taking public trust water from the deep, pristine aquifer of Mauna Kea to send much of it off -island creating more plastic waste on our planet, all to create profit for a hand full of people. The waters of Hawaii belong to Hawaii. Water is a public resource and should never be allowed to become private owned or sold. The Mauna Kea Aquifer, the largest aquifer in the Islands, is unbreached and should not be compromised. This aquifer should be protected and preserved for the future. The ecosystem is dependent on this aquifer remaining intact. Hawaiian leaders have opposed this project. We should listen to the people of this `aina. I have learned from Hawaiians that water is the physical manifestation of spirit. It is not a commodity, and it should be protected at all costs. Many people across the State are currently submitting comments to this plan. It is very important that this democratic process be allowed to play out so the public has every opportunity to determine how Hawaii protects it's most valuable resource, wai. In communities where this is not allowed to happen, we see corporate exploitation that often results in permanent contamination of water supplies such as in Flint, Michigan. The Windward Planning Commission's duty is to render decisions that are in the best interest of the public, the public's health, the public's safety, and the public's interest. And, that duty logically includes utilizing the final Water Resource Protection Plan in consideration of this decision. Further, an SMA special use area permit is by definition tied to a specific special use. It would be incredibly shortsighted to grant an SMA Permit without the certainty that the special use request was, in fact, guaranteed, and certainly Piilani Partners does not have that guarantee to offer. EXHIBIT B 8 In the future, water will be a sacred commodity. Our planet is reaching the point of peak water. We are already seeing the impact of climate extremes to many places and the changes of weather patterns right here in Hawaii. Why would we allow a private corporation to come in, take water from the pristine Mauna Kea Aquifer, and sell it for profit? This water should be used wisely, preserved as much as possible, and remain intact, a pristine source of water for future generations. Again, I formally request that you deny Applicant Piilani Partners, LLC's motion for reconsideration of action. CLARKSON: Thank you all. Are there any questions for any of the testimony, testifiers here? If not, thank you. Please be seated. At this time, I'd like to call up Sylvia Dolena, Susan Rosier, Tanya Aynessazian, and Mary Aflable. Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? DOLENA/AYNESSAZIAN/AFLABLE: I do/yes. CLARKSON: We'll start with the person on my left. Please introduce yourself, speak into the microphone, and continue. DOLENA: Aloha, I'm Sylvia Dolena, and I'm representing Pele Lani Farm, which is an aquaculture farm, and I am opposed to the Piilani Partners use of Hawai`i's water. As previous testifiers have said, this is a very precious resource that will become a more precious resource in the future, and we have to very carefully consider any use or application of this precious resource. We are all morally and ethically responsible to protect our natural resources on this island, not just you as Commissioners, not just the Water Commission, but all of us as individual citizens must do our part to protect the resources for the future, and that's what I'm asking all of us to do. Thank you. ROSIER: Good morning. My name is Susan Rosier. I want to thank you all for volunteering for these positions. I've been in similar situations myself. It's not an easy thing, and it's sometimes, you have to make very difficult decisions. This decision should be kind of clear. It's public trust water, and this is the public. And, not one public has come out and said we like this. Only private. And one of the problems that we've had in this fraudulent State of Hawaii is that it was created for profit. It's all based on profit. The Hawaiian Kingdom Constitution was changed so that Dole, et al. could profit. And, I've come to a few of your meetings, and I really appreciate that you look past that. You look at the public because you are part of the public. You're not one of those getting paid to support the private enterprises. Recently, Dr. deZayas came out with a second letter, and he wrote it in December, and I'm sure that you're aware of the first letter that he wrote last, last year February. This letter that he wrote is directed towards the U.N. There are three pages. I didn't bring it today. I will be sending them to each of you individually at your office. In that letter, he described 40 years that he was with the U.N. that Hawaiians have issued complaints with the U.N. about the governing actions EXHIBIT B 9 here raping the land and controlling all the water. I'm from Maui. I know about water. I know about the streams. I know about living up country where we lived in consistent drought conditions because all the water was diverted down to the new hotels because, they must have swimming pools, but we can't water our cattle unless we catch it from the rain. Please let the Water Commission do their job on this. Please. And, I'm here to tell you even though other people have—it's kind of a big threat to be thought of as being a war criminal, and I understand that you are in that position currently. But, please understand that we, as a people, and you, as our government, because you are really actually an extension of the Hawaiian Kingdom, and this can huli from within. But, it's going to take each of us and each of you and each of us supporting you folks to do that for us, because this is not going to go away. It's only getting bigger, bigger and bigger, and it's not young people anymore. It's everyone. We all know it, you know it, it's time to address the elephant in the world. In the world, the whole world. The military seems to be taking over every country in the world. And, I'm sorry to the Piilani people that get paid for this like she comes up here and acts like she's a lawyer telling you what you're not doing right. That's not right. That's not, really not right. I appreciate your knowledge, and I appreciate your presentation CLARKSON: Please, please wrap it up. ROSIER: And, I thank you very much once again for doing what the public wants. Mahalo. AYNESSAZIAN: Aloha kakou. My name is Tanya Yamanaka Aynessazian, and I'm from Kea`au. I'm very opposed to this project. I hope that you'll not only hold off on reconsideration but stop this project in its tracks immediately. No matter what facts of process and water protection Piilani brings up, their fight is one of the mind and of the intellect. It's of business over life itself. Proving their business concept and processes are legal. It doesn't mean they are pono. Certainly, not in the best interests of our future and the future of all life here. The Piilani project is about raping and pillaging one of the last virgin natural resources we have left after decades and decades of bad business practices, County Councils, Planning Commissions, and volunteers have been willing to enable and approve it. A plastic water bottling company in 2019 as we hover on the verge of banning single -use plastics and other single -use consumables. This is outrageous! I'm aghast at the lack of perspective and vision of you all, of Piilani, of our business community. This is extremely outrageous. 1-1 can't even put into words sometimes how I'm feeling so I apologize for my over -emotion. You guys are lucky I meditate on a regular basis. Because it really feels like we're going back in time. On February 26th of this year, the Hawaii Senate Ways and Means Committee passed S.B. 522 which calls for an outright ban of single -use products including plastic food packaging, single -use beverage containers, like plastic water bottles, and utensils. At 1.2 million bottles a day, this would be 438 million plastic bottles per year originating right here in Hilo. That's what you're allowing. When we want to ban this practice. `A`ole. I ask humbly that you deny Applicant Piilani Partners. And, I do feel bad for you guys `cause you guys are really off course. You're just off course. So, thank you. Thank you for the opportunity to provide my opinion. AFABLE: Aloha, I'm Mary Afable. I attended the February meeting, and I'd just like to point out again as another person did during the testimony that the Piilani representatives were the EXHIBIT B 10 ones that set the denial in motion by their refusal to approve or accept the Commission's desire for a continuance. That's why we're even here today. They could have approved it at that time, and they could have just waited for the Commission to eventually come to the point where they would reconsider it. So, I'm wondering why, why the reconsideration? Also, I'd like the address, not in great depth, some of the issues that everyone else has brought up like how does pumping water that is a public resource for private property benefit the people of Hawaii? As others have also mentioned, the people of Hawaii are here. They're the ones that send in comments. How many have you, how many people from this island have you heard from that approve of this? Virtually, I don't know all of the comments sent in on-line and other ways, but I assume it's a very small number. Finally, and this is totally different from anything that anyone has said, but I'd like to point out that the location of the bottling plant, directly across from the site of the Merry Monarch Festival. Is that the—what we want to present to people visiting Hilo for the Merry Monarch Festival? A bottling factory? To me, that's a real eyesore, and that's just an aesthetic thing. It has nothing to do with the most compelling reason which is converting a public resource into private property. Thank you. CLARKSON: Thank you, all. Any questions for these testifiers? Apparently not. Please be seated. Cherie Griffore, Greg Dauw, Deborah Ward, and Sherri Thal—or Tal. Would you please come forward? Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? TESTIFIERS: I do/yes. CLARKSON: Please introduce yourselves, speak into the microphone and proceed. GRIFFORE: Okay, my name is Cherie Griffore, and I'm on the executive committee for Surfrider Hawaii Chapter Kona Ka [Kai] Ea, and we voted as an executive committee to oppose the Piilani water bottling plant. We have a thousand members, a 1,127. This is my personal testimony, and I just wanted to point out that it's really nerve wracking testifying and everybody's coming here testifying again, and the water bottling plant didn't bother to testify today. Single -use plastics, it takes ten minutes to make, twenty minutes to use, and pollution for generations and lifetimes. You all have reusable drinkware, so you already know. You've been made aware that the S.B. 522 passed in the Senate Ways and Means, so it's going to ban single - use plastics. Hawaii County was the first to ban plastic bags. Other counties followed, and other states followed. We also banned Styrofoam, so we're in the right direction. The Mauna Kea Aquifer is untouched. The impact study is still not done. The Special Use Permit [sic] is still not approved. Why push through before all the requirements are done being completed? Please do not commodify our natural resources without due process. The plastic particles are going to blow everywhere, and Hawaii is the capital for the most endangered species. We are in the middle of the ocean. When we had the hurricane scares, the produce shelves were empty. They and water is always the first thing to sell out. If we don't have water and protect our water for the future, we're screwed. EXHIBIT B 11 Kona has a shortage of water which is also on this island. It's one of the four areas most prone to drought. On February 7th, you had a deferment, the Water Commission must finish their process. The resources and trust for the residents of this County, not an outside county trying to make money. Lastly, if someone came to your house at your backyard and started filling up water bottles and trying to sell them, you would be upset. This is the same thing, but for our island. THAL: My name is Sherri Thal, and I live in Hawaiian Paradise Park. Thank you very much for your work that you do. We really appreciate what you're doing. Thousands have lived without love, but no one without water says W. H. Auden. Water is critical for sustainable development including environmental integrity and the alleviation of poverty and hunger, and is indispensable for human health and well-being says the United Nations. It is with a heavy and strong heart that I am here today opposing granting any permits or rights whatsoever to Piilani Partners or any affiliates for a water extracting and bottling facility in Hilo, Hawaii. To think that a company would want to come to Hilo, drill for our water in our pristine and unique aquifer, and then bottle it in single -use plastic containers and ship it off -island is a travesty. Absolutely ridiculous. An extraction and bottling plant could pose an enormous threat to our water safety and resource on Hawaii Island. If we take this from a purely business standpoint, a water bottling facility such as this would be completely outmoded and outdated before it could even be built because single -use plastic containers are toxic and are rapidly becoming an item to eradicate on our planet. It would be a shame if Hilo fell so far behind the curve by thinking that a bottling plant would be a good business practice. This would truly be a disastrous investment not only for our town but for our environment. If we take this project from an environmental view, this, too, would be horrifying for a number of reasons and just a few single -use plastic toxicity to our oceans and species of all kinds including humans. Breast cancer has long been associated with plastic bottles, and sea life is deeply threatened by plastics. Do we want to be adding to the already out of control mid -Pacific gyre? I don't think so. Drilling our pristine aquifer could permanently contaminate Hawai`i's deep water source along with a posing a threat of contamination all the way down to the ocean, potentially destroying many fragile ecosystems on our island. Flying or shipping bottled water from this island is a huge carbon footprint. Water is the most precious resource on our planet. Public water rights must be, will be adversely affected by a bottling plant. We must keep Hawai`i's water sources, especially the deep water aquifers such as Kaohe clean, pure, and unadulterated. We must deeply consider Hawai`i's water security and future. Please stop this project. Mahalo. WARD: Good morning, aloha. My name is Deborah Ward. I haven't testified on this issue before, because I fully expected that you folks would make a good decision, and I think you will. I urge you to deny the reconsideration. This is not a use, a beneficial use of our water. It's not a protection of our resource, and these are the waters of Kane. It's a large aquifer, but it's being challenged because Pohakuloa wants to use it, the military base. The Hu Honua plant is proposing to take 21 million gallons a day out of the same aquifer for a carbon producing energy EXHIBIT B 12 facility that will not, that will actually add carbon to our atmosphere a long time before those trees regrow. We are 2,000 miles from another water source. For instance, a glacier or a river. We don't—we don't live in a place where we have an automatic, you know, way to get more water, and we're 500 miles from Oahu's water which is at risk because of the Red Hill contamination by military fuel. And, there may well be a demand for that water should those waters become contaminated. We have in the headline today, well not today, but last week, about desalination of water in Kona, because the Kona waters are already salty, unpleasant to drink, and dangerous not only for residents, but for the tourists. And, yesterday, in my mailbox, I got a special report from The Economist about thirsty, the thirsty planet. It's a special report just on water, and I'll just paraphrase a couple of things. The water has to rely—sorry, the world has to rely on just .75 of the planet's available water, almost all of which are subterranean ground water. And, it's, the research says that ground water systems are likely to take far longer fully to respond to differences induced by climate change than does surface water. Only half the world's ground water flows are likely to find a new equilibrium within a hundred years, and the and regions where water is scarce or often where response times are the longest. So, the full impact of water withdrawals now may not be felt for decades or much longer in some cases. And, with that, I close and ask you to reconsider. DAUW: My name is Greg Dauw. I live in Kea`au, Hawaii here, and I want to say mahalo for your considerations for this project that is being considered here. I am in opposition to reconsider the Windward Planning Commission's decision of February 7th, 2019 meeting, and I'm going to just defer any more arguments because I can't say it as well as the people who sit at this table and have preceded me. So, I'm going to just say we need to save our water for the people who live here, and we need to be environmentally sound. CLARKSON: Thank you, all. Are there any questions from the Commission for these testifiers? If not, please be seated. Sure the Director has asked to just speak to you, the audience briefly about the permit process. YEE: So, I just want to clarify. Any citizen, you know, resident, you can make an application to the Planning Department for SMA, for your house—if you submit an application and you kind of check the minimum qualifications, your application if it has to be heard from the Commission will come forth to the Commission. I think most of you who are kind of here understand that, but I'm not sure everybody does. Meaning, just because there's an application in front of the Commission does not mean there was support from the Commission, and in a lot of cases, a new application, they—it's the first time they're hearing it. Okay, I do my job as the Planning Director to work with staff to vet applications, make sure they hit the minimum qualifications in terms of—and, then I make a recommendation to the Commissioners. Okay, and so, just because they're hearing it doesn't mean that they're approving it or disapproving it, okay? That's—this process of having the community speak to `em about the project is exactly the democratic process we have here in Hawaii. I just wanted to clarify that. Thank you. CLARKSON: Thank you. Our next four testifiers I'm going to call up would be Millicent Cummins, Ariel Murphy, Iokepa Kaeo, and Joseph Kualii Lindsey Camara. Who are we EXHIBIT B 13 missing? Okay, Iokepa. Okay, would Geoff Shaw come up, please? Is Geoff still here and wishing to testify? Lahela Camera? Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Commission? TESTIFIERS: Yes [or nodded yes]. CLARKSON: Thank you. Please start down here to my left. Introduce yourself, speak into the microphone, and proceed. CUMMINS: Aloha, my name is Millicent Cummins. I am a rational thinking human being so of course I oppose any kind of project from a profit -based private entity to access a public trust in any way, shape, or form, particularly when that access could compromise the public trust. This is immoral to even suggest that this aquifer be tampered with in any way. If we are to consider not just our own generation, but all future generations, it is immoral, unthinking, and reckless piracy in my humble opinion. Really, all I can is ku kia`i mauna! AUDIENCE MEMBER: Ku kia`i mauna! CUMMINS: Ku kia`i mauna! AUDIENCE MEMBER: Ku kia`i mauna! CUMMINS: Ku kia`i mauna! AUDIENCE MEMBER: Ku kia`i mauna! CUMMINS: And eo. CAMARA, L.: Aloha mai kakou. First of all, mahalo for all your folks work on this Commission. My name is Lahela Camara. I live with my `ohana in the ahupua`a of Kaumana in Hilo, a little below the ahupua`a of Kaohe, which is where the water in this Mauna Kea Aquifer comes from. Thank you for your folks decision last month to defer action on this application, and I'm here to ask today that you stand firm in that decision. There's been undeniable testimony from this community against this project, and even more so today. The fact is we don't know enough about this aquifer, and it has been tapped before, and we don't want to set any precedent that that's okay. We don't know enough about it, and so I don't even want to say that we should do more research to see if we can have an effect on it. This wai, as Mr. Nance stated, is capped by 400,000 -year old land. What does that even mean? We don't even know that. It's older than any of us here, and just the fact that we don't know what that means to us, we probably even haven't even asked that question. What does that water mean? What does that land mean? What does it mean to drill into that? Just because of that, you guys should continue to hold, stand firm on your decision. Hopefully, there are, there's good work to be done with the Commission of Water Resources in their, in their community meetings, in their effort to seek the right kind of protections for these deeps aquifers, and that people of these islands can have a EXHIBIT B 14 better understanding of this wai. Our kupuna knew that it was, that it was a very important resource. It's Kaohe. It is a contained water system. Our kupuna knew that. It may not be written in a commission plan or any kind of law, but it's in our oli, it's in our mo`olelo. And, it's there. And, if we look there, and if we look into ourselves, we know the answer already. So, please stick with your decision and defer action. Mahalo. MURPHY: Aloha, my name is Ariel Murphy. I'm a Punatik, and I'm proud of it. Most of the things I want to say have been said. And, I'll be brief about what I really want to say. Number one, water, potable, fresh clean water is slowly becoming a very scarce resources, and we see that on the mainland. California is trucking its water from Mexico and other states, nearby states. We see Nestle buying up practically all the water rights it can lay its hands on, okay? We are an island in the middle of the Pacific. We have this public resourcea resource that we need to keep in trust and protect from greedy people who are just after making money and for future generations, our children and grandchildren. I'm not here to represent any group. I come here as a Hawaiian although I don't have anyI'm not kanaka, but I am Hawaiian. So, and we made ourselves part, and we take pride in, we are the only state who is a part of the Paris Accord. I think getting this water, plastic water bottling facility to operate is just not consistent or is not in alignment with our being a member of the Paris Accord. And, the other thing is it's like water is like the air we breathe. What are they going to do next? Bottle the air we breathe and charge us for it? And, the other thing is, if I may—if I may put it into an analogy, the Mauna Kea Aquifer is like a piggy bank. It's something that, you know, each member of, we are a family, we put money into it for the future just in case there's a very urgent need to break that bank, but now one member of the family wants to use that money, break that bank, and go gorge himself at the buffet at Queen's Court. That doesn't seem right. Is there a water shortage? Are we running out of water? What the fuck do we need a water bottling facility for? Thank you very much, aloha, and please pardon my language. CAMARA, J.: Aloha O Joseph Kualii Lindsey Camara ko`u inoa. O Mauna Kea ku`u mauna. `Ono Wai Kapu o Kane ku`u wai. I live with my family in the wao ma`ukele o Kaumana. I want to thank all of you guys on this Commission. Through this process, I've really come to appreciate the position that you are in, and it's a very hard, these are very hard issues to weigh in on, and I really thank you guys for, for continuing to hear us and for this, for this big kuleana placed on your guys' shoulders. I know there's a lot of things that you cannot weigh in on, but I wanted toI'm here to try and help you guys make this decision. And you guys can weigh in on the public trust, on the Public Trust Doctrine. And, again, it does comprise of two things: the protection of the resource and also on the considering beneficial uses. And, I think it's very, I think it's very dangerous for us to continue to consider privatization of water as a beneficial use, and you guys do have your guys discretion to use on that. And, I know it's been done before, but, you know, we continue to make that precedent with each decision that we make. You know you know, if we continue, continue to consider the, the correlative and the perlative rights of landowners and tap, and privatization of water as a beneficial use, it's just going to draw in more people who want to exploit our resources. Looking back, under the Public Trust EXHIBIT B 15 Doctrine is also the precautionary principle. That the State has the duty to take anticipatory action to prevent harm to public resources. In the Waiahole I case, the Hawaii Supreme Court discussed the precautionary principle and ruled that the lack of full scientific certainty should not be a basis for postponing effective measures to prevent environmental degradation. Now, I sort of just come back to the fact that we just found out about this water resource, and doing more research, the last well that was dug into the Mauna Kea deep confined aquifer, they had, they had water coming up at 11 bar, 160 psi of a, out of a five -inch pipe, and it's highly pressurized at a thousand feel below under Mauna Kea flow, so it's something that, you know, I don't feel comfortable with any more drilling going into there. So, just to reiterate the precautionary principle, and going back—so touching now on, on the decision in February to defer to the until after the CWRM has come up with its water protection plan, I was at the last meeting on the 28th. I did give testimony, and why I think you guys should uphold that decision to defer to the until after we have this water protection plan, CWRM did, does acknowledge in the water protection plan that the deep confined aquifers are things that we need more information on. Currently, this water resource is undesignated so what it basically means, as it currently stands, even though this is our most, our most abundant, most abundant, most pristineoh, it's three minutes already, okay, shucks—okay, so basically under the current, how it currently stands, there's no protection for this water, even though it's the most valuable, this resource is the most pristine. Under the current framework of things because its undesignated, there's really no protection for it other than, than looking at how we're going to drill a well. There's no consideration given to whether we should drill a well or not, the amount of water they used, and whether or not there are alternative sources, which there are, 350 million gallons a day CLARKSON: Please, please wrap it up, sir CAMARA, J.: Okay, thank you very much. And, so one thing I want to help you guys out with in making this decision, one way if you're not going to uphold the decision to defer, you guys can straight out deny this permit because they're asking for the wrong aquifer. It's not the Hilo Aquifer, it's not the Onomea Aquifer. It's the deep Mauna Kea confined aquifer, so you can deny the permit on the basis that they're asking for the wrong aquifer. There's no known sustainable yield, CLARKSON: —Thank you CAMARA, J.: recharge area, recharge rate. It's unknown, so—so, whatever your guys decision, I just really hope you guys will protect this resource. Mahalo nui. CLARKSON: Thank you. Are there any questions for these testifiers from the Commission? Thank you. At this time, I'd like to call forward Jaerick Medeiros-Garcia, Leah Sherwood, Shelley Mahi-Hanai, and Ku`ulani Muise. Apparently, someone—Claudia Rohr? Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? TESTIFIERS: Yes. EXHIBIT B 16 CLARKSON: Please introduce yourself, sir. Speak into the microphone and proceed. MEDEIRO S -GARCIA: Aloha, I'm Jaerick Medeiros-Garcia. I'm the president of Pepe`ekeo Community Association, and chairman of the Shoreline Fishermen. I'm in a position to the reconsider—everybody spoke on behalf of what I had to say pretty much, but I just look at your folks. I see this is the pretty much the last resort of you folks being our protectors, so I ask you guys to just protect. Protect us. Thank you. SHERWOOD: Thank you so much for hearing our testimonies today. My name is Leah Sherwood. I am a graduate student at UH -Hilo. My field of research is plastic pollution in the marine environment. I work with Hawaii Wildlife Fund at Kamilo, South Point conducting plastic marine pollution surveys. Since 2016, we have removed 260 tons of plastic marine pollution, included in that number are plastic water bottles, beverage bottles, and thousands of plastic bottle caps. I personally counted 800 plastic bottle caps in one day. I am in strong opposition to this proposal for an SMA Use Permit by Piilani Partners, LLC. Given the important role the Commission of Water Resource Management with water quality issues and the relevancy to this SMA application proposal, I would like to ask the Windward Planning Commission to either decline this proposal outright or then to defer it until the new update to the Water Resource Protection Plan update is finalized. This year, the Hawaii Legislature is taking action to secure an ocean -friendly future. This is to combat plastic marine pollution which can be found in every ocean from the surface waters to the ocean floor. Plastic poses threats to our wildlife such as our Hawaiian Monk Seals who are disproportionately harmed by plastic marine pollution due to physical oceanographic processes that allow global plastic pollution to accumulate near our islands. Let's work together to minimize the impacts of single -use plastics. Let's join together to protect our State and its wildlife and plastic marine pollution. Please vote "no" to the SMA Use Permit to help protect our natural resources, our ecosystems, and our oceans. Nature is not a commodity, and water is not a commodity either. Water is a natural resource that needs to be protected. Thank you for your time. MUISE: Aloha mai kakou. O wau no Ku`ulani Muise. O Mauna Kea ku`u mauna. O maha kea ku'u wai. O kahua ku `aina noho, noho nei. I'm speaking to you today as a mother of three young children and as the vice-president of the Hui Aloha `Rina o Hilo. I want to mahalo you for your time, and mahalo for your motion to defer which in my humble opinion was a wise decision, and I'm here to ask that you hold to your decision of an indefinite continuance. Ms. Bunn earlier referred to the 2014 Supreme Court finding that the public trust is the duty and authority to maintain the purity of waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses. I do not see and maybe according to your motion to defer, that you might not see as well, how the privatization of this invaluable and to many sacred Wai Kane will benefit our future generations, our children, our children's children. How will tapping and bottling a deep, contained, unknown, and untouched aquifer put this public trust resource through reasonable and beneficial use? Reasonable how and beneficial to whom? EXHIBIT B 17 Mahalo again for your consideration, and I ask again that you hold firm to your decision to defer. Mahalo nui. ROHR: I'm Claudia Rohr. I sent a memorandum in opposition to their motion discussing the public trust doctrine. They referred to the wrong section of the Constitution that applies to the County and the Planning Commission. It's Article XI, Section 1 of the Hawaii Constitution that covers the Planning Commission and the County of Hawaii. It also requires not only do you have a duty in scrutinizing the project and its impact on what the Applicant is admitting to, is a very special spiritual, historic two thousand year old accumulation of Mauna Kea rainwater that has significance to our Native Hawaiians. But, you must also look at the impacts on the public lands in the vicinity of this proposal. That would be Wailoa River recreational area. If you read the Big Island Noise Manual, in there you'll see that noise has health effects on humans and wildlife. Back-up beeper noise is not regulated, because it's a safety issue. There's no regulations. The Applicant corrected the background information and said that they would be having six to eight trucks an hour. That means that forklifts will be loading in palettes of water bottles all the time. One of the effects of noise is it angers people, and that can be a safety issue in our Wailoa Park, State Park. People getting angry over the beeping noise, and maybe they don't have good control of their impulses, they're gonna start fights. This, there's plenty of reasons both for the reasons I stated in my memorandum, but also because you have an obligation to scrutinize the project's impact on the public lands 400 feet away. Thank you. CLARKSON: Thank you, all. Any questions for these testifiers? REPLOGLE: I have a question for Ms. Rohr. You have mentioned that Piilani Bottling wants to bottle this water and ship it away as a medicinal or a life-giving liquid, is their idea? Are you comparing it to like rhino horn? ROHR: No, I just mean that if this goes to court, that's just going to be a factual finding that everybody agrees on. That the water has spiritual qualities, and that they're trying to exploit that, market it. And, I think that the Article XII, Section 7 of the Hawaii Constitution in spirit would support a ruling on your part, or a decision on your part to deny the permit because of the impacts on the historic, spiritual water found in the SMA. I don't think this is right. It's an insult to the Native Hawaiians. REPLOGLE: Thank you. ROHR: I have one more question. In thisI just got information yesterday or the day before at 2 o'clock, and it indicates that Piilani Partners just signed an agreement to be able to assume somebody else's position for an option to purchase the property. Could you tell me whether they actually have sufficient vesting to take anyone to court? I don't know if they really have sufficient ownership in the property. CLARKSON: I don't think that's a matter for us here today. EXHIBIT B 18 ROHR: Well, they're always threatening to sue, and I couldn't understand how they were able to apply— CLARKSON: I suggest you ask their attorneys about that issue. It's not up it doesn't have anything to do with us, Ms. Rohr. Are there any other questions from the Commission? AGUINALDO: No. CLARKSON: Thank you both. At this time, our last testifier, unless there are other people who have signed up is Geoff Shaw. MAHI-HANAI (from audience): You called my name, but all four chairs were filled, so CLARKSON: Oh, okay. Please come up. You've testified before, so you're sworn please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? SHAW: I do. CLARKSON: Whichever one of you would like to proceed. Please introduce yourself, and proceed with your testimony. SHAW: My name is Geoff Shaw and, well, this is speculation on my part. And, it seems like they're very persistent, this entity, the Piilani Partners, and I'm going to speculate on why they're so persistent. They can see the writing on the wall, and if you remember back, you know, decades ago, bottled water was basically Perrier and Avian, and there wasn't all these other brands, you know, and it was from a pretty exclusive source, and you pay a lot of money for it, and it was kind of a, you know, a vanity thing, you know. If you were drinking that Perrier water, you were some fancy dude, you know. The regular people couldn't afford that stuff And, so, what's happening with the, with the bottling industry is that, you know, there's a lot of opposition to it, and I see you guys have, you know, water cups and stuff now, instead of using your bottled water. When I came to these meetings before, everybody would have a bottle of water in front of them, and now people are changing, you know. And, they're smart, you know. They can see the writing on the wall. You gotta get something exclusive, you know. So, they want to tap into that Mauna Kea water source. And, this is all speculation. I'm not on their board, you know, in their board meetings, whatever, but I think it's an educated speculation, and so, you know, when it gets back to, when, you know, years down the line when this is on, all happening, you know, you'll be looking back on this and saying, wow, you know, we were a part of that, you know. And, now you have a chance to, you know, at least, at least slow the, slow the ball down, you know. I mean, if these guys are persistent, they'll just keep going, and I also want to go back to when I was here before, I was discussing the, the—okay, I was discussing the, the attempt to do a study of the effects of, of PGV on the Hawaiian community, you know, and that study never happened. Even though you guys voted for it, you know, the few people that are still here, you voted for it, it never happened. And, if that study would have happened, you know, we would know how much stuff like this affects the Hawaiian community, you know. It's not just a subtle effect. It's a, you know, I mean, having these things happen to you over and EXHIBIT B 19 over and over again, you know, it'sit compounds itself You know, whether you're talking about Mauna Kea, whether you're talking about PGV, whether you're talking about, you know, Pohakuloa. It all compounds itself, and this is just one more, one more piece of the, you know, being inflicted. So, I guess that's my testimony. Thank you. Thank you for your service. MAHI-HANAL Aloha, my name is Shelley Mahi-Hanai, and I actually used to work for the County a while back under County Councilman Bob Jacobson and Emily Naole. I wanted to also request that the County wait until the report comes out, the Water Resource Management, and the Water Resource Protection Plan. I also wanted to bring up the issue of the HRS 174C-101 that was mentioned before. It's concerning the Public Trust Doctrine where Commission on Water Resource Management failed to render the requisite findings of fact and conclusion of law with respect to whether applicant has satisfied its burden as mandated by the State Water Code. It violated its public trust duty to protect the Department of Hawaiian Home Lands reservation rights under the Hawaiian Homes Commission Act, the State Water Code, the State Constitution, and the Public Trust Doctrine in balancing the various competing interests in the state water resource trust. So, I also wanted to bring up the issue of concern for the language by Piilani trust, that they want to obtain a foundation of data and this is sort of a red flag for possible use of either dye or radioactive isotopes that they put into the water source to see where it flows, how much and what not. And, I want to put a cease and desist on that. I think the community would also agree that they don't want any such things added to the public trust waters. Also, that on the verge of stopping the use of Styrofoam and water bottles and what not, a band on personal use items that we should not be having and encouraging a water bottling facility with plastic water bottles. I wanted to also bring up the issue of the Mauna Kea Aquifer. Right now, up on top Mauna Kea, there are 13 observatories. They have what they call French drains which are basically this open gravel pits into the aquifers. And, the—the blueprints and what not are at the Department of Planning in archives. I think they should be brought out and examined and that either these need to be decommissioned or the French water drains, `cause of the run-off from the mercury that the lens floats on, that's a big problem there. So, we need to protect the aquifer. And, so, in general, I just wanted to, to also say that we need to preserve as much as we can the ambience from between the kahiko to the `auana [sic] of Hilo because this, a bottling plant that's going to make noise and possibly fumes. I'm not sure if they are actually making the bottles there, if there's fumes coming off, but I know the noise particularly from the trucks could have an effect on Merry Monarch and the whole cultural, what goes on in that vicinity, and I just think that it should be considered on that level. And, also that there are what they call appurtenant water rights inside the ahupua`a and CLARKSON: Please, please wrap it up, please MAHI-HANAL All righty. And, so basically, I am opposed to the Piilani water bottling plant, and I hope you will be, too, and that we look forward to a better future protecting our oceans and EXHIBIT B 20 that right now, the Pacific Ocean is under threat from ocean mining activities from the International Seabed Authority. We don't need to be adding any more plastics. Thank you. Aloha. CLARKSON: Thank you both. Are there any questions for these testifiers? If not, is there any other person that wishes to testify on this application? There being none, I'll ask for a motion to close public testimony. REPLOGLE: I make a motion to close public testimony. I move— AGUINALDO: I second. CLARKSON: It's been moved and seconded that public testimony be closed. All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carries. Public testimony is closed. At this time, there would be a request for a motion for action. I would point out that a reconsideration can only be moved by those who voted in favor of the original motion so if there is a motion for reconsideration, it would have to come— REPLOGLE: I have a question kind of techI don't know if it's a technicality, but DELA CRUZ: Eh, you know what? I would like to move into executive session to discuss further issues with Corporate Counsel. IKEDA: Second. CLARKSON: It's been moved and seconded that we go into executive session to discuss our legal options with our Corporation Counsel. All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Okay, we're going to go into executive session after a five-minute recess. During executive session, we ask that all members of the public leave the room. I don't think it will be a long executive session, but I'm not sure. You'll be notified when we're out of executive session. At 10:57 a.m., it was moved by Commissioner Dela Cruz and seconded by Commissioner Ikeda that the Commission go into executive session to consult with its attorney regarding questions and issues pertaining to the Commission's powers, duties, privileges, immunities, and liabilities, pursuant to Hawai `i Revised Statutes Section 92-5. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. EXHIBIT B 21 At 11: 01 a. m., the Commission went into executive session. At 11: 06 a. m., it was moved by Commissioner Replogle and seconded by Commissioner Aguinaldo that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. The hearing reconvened for regular session at 11:10 a.m. CLARKSON: The session is—we're back in session, our recess and executive session. At this time, the Chair will ask for a motion for action on the request to reconsider. REPLOGLE: I make a motion that we reconsider our decision of the last Planning Commission meeting. CLARKSON: Is there a second? DELA CRUZ: Second. CLARKSON: Any discussion? If not, I'll ask staff to poll the Commission. KAY: Thank you, Mr. Chair, and I'm sorry, the motion was to reconsider the decision of the last, of the last reconsideration? CLARKSON: No. REPLOGLE: Or—or to consider Piilani KAY: Oh, pardon me HALL: The decision of the last Commission meeting. KAY: Reconsider the decision of the last Commission meeting, okay. Okay, thank you, Mr. Chair. Commissioner Replogle? REPLOGLE: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Ikeda? IKEDA: Aye. EXHIBIT B 22 KAY: Commissioner Raffipiy? RAFFIPIY: Aye. KAY: And Chair Clarkson. CLARKSON: Aye. KAY: Thank you, Mr. Chair. Motion carries six, nothing. CLARKSON: Okay, at this time, the Chair will ask for a motion for action on the application, the original application from Piilani Partners. REPLOGLE: I wouldI move that the application for a Special Management Area Use Permit Docket No. SMA 18-000070 be denied for the following reasons. We were given public trust factors to be considered for when approving or denying applications. And, one is the agency's duty and authority is to maintain the purity and flow of our waters for the future generations and to assure that the waters of our land are put to reasonable and beneficial use. Giving private business access to our water so that they may enrich themselves is not reasonable or beneficial use to our natural resource for our people. I see nothing in the application that is in the public trust or interest. Number 2, the agency must determine whether the proposed use is consistent with trust purposes, maintenance of waters in natural state, protection of domestic water use, access, enjoyment, and resource protection. Will the water remain in its natural state if at the time of drilling water from the Mauna Kea Aquifer, excuse me, water from the Mauna Loa Aquifer leaks into the Mauna Kea Aquifer, a risk the public may be willing to take at a future date should the need for water arise as a result of water depletion in our present sources of water become acute. However, at this time, to take that risk will do nothing for the public trust or in the public's best future interests. It will not provide protection of future domestic water use. Three, the agency needs to apply a presumption in favor of public use access, enjoyment, and resource protection. We are to presume in favor of the public use. The public has spoken and given written testimony. That's what all this is [holding up his copies of public testimony]. This is one person per page stating they don't want this to happen. Where am I — the public has spoken and given written testimony stating why this application should be denied. All may not be legally part of the debate, however, they are true, in fact, serious concerns of our natural resources beyond the extraction of water and a water bottling facility. So, we're talking about plastic or ecosystem services. Again, approving application SMA 18-000[0]70 is not in the best interest of the public trust. I skipped the next two and went to six. The agency must apply reasonable beneficial use standard which requires examination of the proposed use in relation to other public and private uses. Having access to the land from which to pump the water, being close to all forms of shipping and knowing all the right people does not give vested rights to water. Being private and EXHIBIT B 23 commercial, you are under greater scrutiny considering what appears to be happening on the world stage regarding the scrambling by corporate business and wealthy individuals to grab up and control all remaining natural resources at the expense of people who live in the region. Number six takes usI think that's enough. IKEDA: Second. REPLOGLE: Thank you. IKEDA: Second. CLARKSON: It's been moved that the application be denied for the reasons listed by Commissioner Replogle. Is there a second? HALL: There was a second. CLARKSON: It's been moved and seconded. Any further discussion? Poll the Commission, please. KAY: Thank you, Mr. Chair. Commissioner Replogle? REPLOGLE: Aye. KAY: Commissioner Ikeda? IKEDA: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: Commissioner Raffipiy? RAFFIPIY: Aye. KAY: And Chair Clarkson. CLARKSON: No. KAY: Thank you, Mr. Chair. Motion carries five, one. EXHIBIT B 24 CLARKSON: The next item on the agenda is an application from Wailani Development. I'd like to have staff replay the AUDIENCE MEMBERS: Thank you so much. Thank you. Mahalo. CLARKSON: repeat your presentation from the previous meeting, after a minute to allow people to clear the room. HALL: Sorry, point of order. CLARKSON: Yeah, go HALL: —Going back to the last agenda item. We need a motion, another motion to adopt, to move the adoption of the Findings of Fact, Conclusions of Law to the next meeting. It's on the CLARKSON: Yeah, I was remiss, if, because the motion was against the recommendations of the Department, the follow-up motion needs to be made to continue the creation of Findings of Fact. REPLOGLE: So, I should do that. I move that the adoption of written Findings of Fact, Conclusions of Law, and Decision and Order be committed to the next scheduled meeting for the denial of the Special Management Area Use Permit Docket No. 18-000070. CLARKSON: Is there a second? IKEDA: Second. CLARKSON: If there is no further discussion, which there shouldn't be, can we? KAY: Yes, thank you, Mr. Chair. Commissioner Replogle? REPLOGLE: Aye. KAY: Commissioner Ikeda? IKEDA: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. EXHIBIT B 25 KAY: Commissioner Raffipiy? RAFFIPIY: Aye. KAY: And Chair Clarkson. CLARKSON: Aye. KAY: Thank you, Mr. Chair. Motion carries six, nothing. The discussion ended at 11:20 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT B 26