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HomeMy WebLinkAbout2007-02-15 twaikoloadevco PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT February 15, 2007 WAIKOLOA DEVELOPMENT A regularly advertised hearing on the application of COMPANY (SMA USE PERMIT NO. 25) was called to order at 11:00 a.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman William Graham presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Jeffrey McCall Fred Galdones Rene’ Siracusa William Graham Andrew Iwashita Alvin Rho Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager OgxkkhrEtihlnsn+Rs`eeOk`mmdq Jeff Darrow, Staff Planner And approximately 11 people from the public in attendance. APPLICANT: WAIKOLOA DEVELOPMENT COMPANY (SMA USE PERMIT NO. 25) Request for amendment to Condition No. 12 (completion of the Waikoloa Homesites Venture Golf Course) of Special Management Area (SMA) Use Permit No. 25, which allowed the overall development of the Waikoloa Resort at Waikoloa, South Kohala, Hawaii, TMK: 6-9-7:1-9, 11, 14, 17, 19-21, 26, 30-38; 6-9-8:1-31; 6-9-9:1-14; 6-9-10:1, 34; and 6-9-11:1-26. GRAHAM: Will the Planning Commission come back to order, please? Our next item on the agenda, Unfinished Business the Applicant is Waikoloa Development Company regarding SMA Use Permit 25, and this is a request for an amendment to Condition No. 12, which relates to the completion of the Waikoloa Homesites Venture Golf Course. This agenda item was heard at our last Kona meeting, but the Commission requested some extra materials for evaluation before taking action. So we have received extra materials in the mail, and we can go forward at that point today. Mr. Darrow, would you give us a refresher, please? DARROW: Sure. Just to begin with, this is a continued hearing from our last Kona meeting. The Applicants were asked by the Planning Commission to provide certain information regarding water quality monitoring reports. The Applicants have submitted the requested th information in a letter dated February 5, included along with Exhibits. We have also received thth several letters from Waikoloa Development Company, dated February 12 and February 14, which have been passed out to the Commission this morning. Additionally we have received a th letter dated February 14, from attorney, William Yuen, and again that has been distributed this morning to the Commission. The Planning Director has prepared a memorandum to the EXHIBIT C 1 Planning Commission in response to the Applicant’s request to changes to Conditions 24 to 26. Again that was passed out this morning. Lastly, as requested by Chairman Graham, the Planning Director has distributed copies of the first and latest water quality monitoring reports submitted by the Applicant in compliance with Condition 14 of SMA 25. One of these is dated August 6, 1993; the latest one is dated June 15, 2006. And we have also submitted to the Planning Commission a “Review of Coastal Monitoring Data for Developments in West Hawaii”, a study prepared for the County of Hawaii by the Marine Science Department at the University of Hawaii at Hilo. Just for refreshing for the Commissioners, the area of this application is within the South Kohala District of Hawaii; more specifically we are looking at the Waikoloa area. This white line moving in a north-south direction is Queen Kaahumanu Highway. This particular area is the Waikoloa Development Company project area. We are looking at Waikoloa Beach Road running in an east-west direction or mauka-makai. And the area of the project site for this particular application is identified in red. This is the northern most portion of the project area. The Applicants, Waikoloa Development Company, are requesting an amendment to Condition 12 of SMA 25: A time extension to complete construction of the requested golf course. Are there any questions? GRAHAM: Commissioners, any questions? Well, I think we should hear from the Applicant at this time. So you folks who are here, could I swear you in today, please? Raise your right hands. Do you swear or affirm to tell the truth on this matter before the Hawaii County Planning Commission today? APPLICANTS: I do. GRAHAM: Thank you. You could go ahead with your presentation, and begin with your name and address, please. BAIL: Certainly. My name is Lisa Bail. I’m the attorney for Waikoloa Development Company. My address is 1099 Alakea Street, Suite 1800, Honolulu, Hawaii. GRAHAM: Thank you. And you can go right ahead if you would like to address the Commission. BAIL: Okay. Well, I wanted to be clear with the Commission what we’ve submitted, and what you should have before you, and what our position is on various items. I realize you’ve gotten several – some of them quite recently. What the Commission had requested that we do at the last hearing was to take the extended time period and submit more information regarding various water quality issues, and we have done that. I also understand that you have received the same information from Staff. Initially, with the submission we objected to the Planning Department’s proposed Conditions 24 through 26. What our letter yesterday says is that we withdraw our objection to those Conditions, and we are willing to accept those Conditions, if imposed. If imposed, we are also agreeable to the Planning Department’s revise th modifications in their correspondence of February 12. With that, we rest on the written testimony. GRAHAM: Thank you, Ms. Bail. Sir, could you give your name and address first? EXHIBIT C 2 W. YUEN: My name is William Yuen. I am an attorney representing Waikoloa Homesites Venture, which is the owner of the property that is the subject of the extension request. My address is 1001 Bishop Street, Honolulu, Hawaii. I submitted a letter yesterday to the Planning Department. At the previous hearing I went on record, on behalf of Waikoloa Homesites Venture, stating that Waikoloa Homesites Venture was prepared to accept the Planning Department’s recommended Conditions 24 through 26. We are also prepared to accept the Planning Department’s recommendation now that Waikoloa Development Company has withdrawn its suggested changes. Since Waikoloa Homesites Venture did not conduct the monitoring, the only additional information that I submitted along with my letter yesterday was some testimony that Dr. Steven Dollar gave before the State Land Use Commission in December of 2005, directly related to a question raised by one of the Commissioners at the last meeting, being whether development was the source of algae blooms that were experienced along the West Maui coast some 15 years ago. And Dr. Dollar testified before the Land Use Commission that he had conducted a number of studies directly related to the algae bloom epidemic, and found that there were sufficient natural nutrients occurring in the ocean to support the algae blooms, and that neither agriculture nor development activities nor human activities contributed to the development of algae blooms. That’s basically all I have. Thank you. GRAHAM: Do we have any questions from the Commissioners for the two representatives here? Commissioner Watanabe? WATANABE: I have a question. We just got a response to some of your proposed changes to Conditions 24 to 26 and responses from the Director and within that I assume that you also had this. I believe he is referring to the second golf course, cause there were concerns about the second golf course. This letter is from the Director to the Planning Commission dated February 12, 2007, and the suggested revised wording in Condition 26 is “The IGCMP requirements for the second course shall be conditioned at the time of plan approval. The IGCMP for the first course shall contain, at a minimum, the following requirements.” So I assume that is in addition to that at the very beginning of the original Condition 26. Are you then in agreement with that revision? W. YUEN: On behalf of Waikoloa Homesites Venture and the first course, we have no objection. BAIL: And on behalf of Waikoloa Development Company that will build the second golf course subject to this Condition, we are agreeable to this revised Condition proposed th by the Department on February 12. GRAHAM: Commissioners? Commissioner Iwashita? IWASHITA: I don’t know if these testifiers would want to address it even if I ask them. I have some questions related to the recommendations in the Review of Coastal Monitoring Data for Developments in West Hawaii prepared by the Marine Science Department at the University of Hawaii at Hilo. So would you lawyers want to answer these technical kinds of questions about the recommendations, and I guess what your clients’ positions would be about, I guess in my mind, developing conditions or changing conditions to include some of the recommendations EXHIBIT C 3 so as implementing the Guidelines for West Hawaii Coastal Monitoring Task Force 1992? Should I address those questions to you, or we have other -. BAIL: Why don’t you address them to me? I may need to call on other people who are here today to assist me with response, but let us know what your questions are. IWASHITA: Well, I guess in reviewing this study, which was done in April or the report was done in April 2006, it raises concerns in my mind about the nexus question that Mr. Yuen talked about in terms of the increase in nitrogen or the nutrients. And I guess this review finds that there has been increase in these nutrients. And this report talks about the potential being increased in West Hawaii; if I want to quote here, “suggesting the conditions in West Hawaii may be developing for extreme environmental degradation possibly resulting in algae blooms like those in West Maui.” And I suppose those are the same ones that Mr. Yuen referred to. So the recommendations of this study and report are that, as it would be related to this project, that the Guidelines for West Hawaii Coastal Monitoring Task Force 1992, you know, that those need to be adhered to and enforced, revised, so forth, and that the Guidelines for Environmental Reports need to be provided to the developers – presumably such as yourself – prior to application or implementation. So I guess my question is whether or not your companies have received the Guidelines for Environmental Reports for West Hawaii Coastal Monitoring Task Force 1992. BAIL: The anchialine and all the monitoring that we do at the Resort complies with the West Hawaii Coastal Monitoring protocols from 1992, and that is stated in our th February 5 submission on Page 9. IWASHITA: Okay. And the suggestion also is that this monitoring continue, so that we can keep more information and possibly take a corrective action or preventive action, so that we don’t increase the degradation that may result in an algae bloom. So what position do the applicants take about this conclusion in this report that there is a nexus or there may be a nexus between what they describe as the degradation of the water quality and the possibility of triggering an algae bloom? BAIL: Well, let me address that in several ways. I want to first of all give everybody assurances that not only the existing SMA but also the existing Land Use Commission Decision and Order do require extensive monitoring on an on-going basis. So far, to date I believe there has been more than 30 years of sampling since 1977 under the obligations of both the SMA and the Land Use Commission Order that sampling will continue. With regard to the anchialine pond area that is designated at the Resort, we are under the oversight of the Army Corps of Engineers for the various monitoring programs that we conduct there, and we comply with their directives. To date there are more than 1,600 water quality samples on an on- going basis; there are more than 120 samples collected each year. Those range from ground water samples to anchialine pond water quality sampling and continuing out into the ocean environment. IWASHITA: What is the applicant’s position regarding -. Because I guess now we have conflicting positions scientifically: The ones referenced by Mr. Brock and now this one which basically takes the opposite position. So is the Applicant’s position still that there is no nexus EXHIBIT C 4 between the increase in nutrients, which is documented by these tests, and the possibility that the increase might result in algae blooms? BAIL: Perhaps I’m not understanding your question. I believe that the existing monitoring is designed to detect any nexus between impacts from the existing developments at Waikoloa. That’s why the monitoring is so extensive going from the ground water wells to the anchialine ponds and out to the ocean environment. As stated in our testimony, we don’t believe that additional water quality monitoring is required or that additional biological monitoring is required. And it is our further position as stated in our letter to the Commission that if the Commission is looking at imposing additional conditions beyond those recommended by the Planning Department, that we respectfully be allowed the opportunity to withdraw our request for extension of time. IWASHITA: Thank you. GRAHAM: Other Commissioners? W. YUEN: May I? GRAHAM: Yes, Mr. Yuen. W. YUEN: It’s our position that no further monitoring is required. And based on both the recommendations of Dr. Block (Brock) in his study that no further monitoring is required and the testimony I submitted from another hearing by Dr. Dollar that there is no nexus between development and algae blooms, that kind of monitoring would not lead basically to any show of any nexus between the water quality and the development activities. It is our position, however, that as landowner we are not in favor of any withdraw (withdrawal) of the application for time extension. GRAHAM: Thank you. Mr. Yuen? C. YUEN: I’d like to just give some background on this coastal monitoring data review and what is currently required of Waikoloa – try to put this into some prospective (perspective). All the coastal resorts in West Hawaii have water quality monitoring requirements. So what happens is periodically – depending on the specific wording of the condition – they will send reports in to the Department with a summary and some data, and this has been going on for in the case of Waikoloa 30 years and in cases of some others a shorter period of time. So the Department gets this huge mass of data and reports. What we felt was it was important to try to do an overall review and analysis of this to see if there was a problem, to see whether the monitoring was being done properly, and to see whether there is room for improvement in the data gathering; is there something else we should be looking for. Just to do this overall assessment, we also thought it was important to do it not using the same people who were under contract with the coastal developments; not to cast any aspersions upon them but because they do work for the landowners, there is potential or possibility of a claim of conflict of interest. So the Department commissioned and paid for this coastal monitoring review using our CZM funds, and that’s what you have here. EXHIBIT C 5 And what I see as the basic conclusion is they do believe that there has been an increase in nutrients along the coast that may be due to development activity. They do not draw any conclusion as far as biological harm, which is another -. The increase in nutrients is supposed to be a forewarning that there is some biological harm; if nutrients didn’t do anything, nobody would care about nutrients. They made some recommendations. One of them was that, for most of the developments that we had under sampling, they felt that the data was not kept consistently enough to actually determine trends. The two exceptions were Waikoloa and Hokulia. In other words they felt that Waikoloa and Hokulia were the best as far as the monitoring that we have done over time; that they had most reliable monitoring. Second, that they felt that there was inconsistency in the monitoring requirements, and so we needed to make those consistent. Third, they do feel that we need more biological type of assessment rather than strictly the chemical – monitoring. And this came to us – the report in April 2006. It’s one of the things that we need to follow up on as our Department; what I want to do – just so the Commission understands where we are going with this – I want to do a mini conference involving the various private landowners and involving the University. I understand that the people who have done the monitoring are not necessarily in agreement with the conclusions of the report. You know, you don’t want to just go off without hearing what they have to say about it. Given, though, effort that has been made over the decade with all the developments, I think it’s time to sit down and make sure that they -. I am concerned about the fact that the requirements are inconsistent. I think we should have a consistent protocol, that it should be comparable both over time from one location and from one location to the next. This report gives us some concern about the comparability at that. Final thing that I’d like to say is that I would not want to fiddle with the monitoring requirements on this SMA permit. I think this is something that we should be looking at overall. As I started saying, Waikoloa actually, along with Hokulia, seems to have the best monitoring permits; I’d rather us do an overall review of these and try to actually make everybody be basically consistent on what we are doing and on what we are looking for. GRAHAM: Thank you, Mr. Yuen. I’d like to introduce some thoughts of my own as a Commissioner, not as the Chairman, representing only my own experiences and my own reading of this material, if I may at this time. IWASHITA: Mr. Chair, before you did, can I follow up just to clarify my understanding? GRAHAM: Yes. Please do. Commissioner Iwashita. IWASHITA: Based upon what the Director’s – it’s very helpful clarifying all this information. Basically what I understand the Applicants’ position is that we are doing a good job, we are monitoring now, and we will continue to do that because that’s part of what the existing conditions are. Is that correct? BAIL: That’s correct. IWASHITA: Okay. Thank you. And I thank you for doing a good job, good enough for them to use it in this report. EXHIBIT C 6 BAIL: You’re welcome. GRAHAM: I have a number of things to say on this. First, if we took a parallel like global warming, in this case we are out measuring nutrients, so maybe global warming we are out measuring CO2 concentration in the atmosphere like they do at Mauna Loa. You can monitor forever, but the question is when do you take action. And I think that’s what we are finding in our international and national global warming debate. You know, is the science clear or is it not clear? And if it’s clear, then it’s time to take action. And to me that also brings up a very strong feeling on the interpretation we get on this report prepared by the University of Hawaii Marine Science Department versus the interpretation we get from the private consultants. We’ve had – from following ocean quality issues for many years – we’ve had Mr. Dollar and Mr. Brock, and for a short time there was Mr. Ziemann, preparing these ocean water quality reports for just about every development in West Hawaii since certainly in the beginning of the 80s.And they are very qualified individuals, and I certainly take no issue with their integrity of their numbers and what they are presenting. However, when it gets to interpretation, as to what these numbers mean, we never really have independent points of view; we always get what’s presented by the developers through their consultants. And now for the first time we have a strong comprehensive overview of what’s going on and independent interpretation of what’s going on. And so if I just read – these are just some of the excerpts that I read from the Marine Science Review prepared by the UH Hilo people – Page 4, “It is estimated that nutrient concentrations in the archialine ponds in Waikoloa have more than doubled since the resort’s development.”; Page 4 also, “These elevated nutrient concentrations may lead to algal blooms in West Hawaii, which may be comprised of exotic and/or harmful species.” Now if I compared this with Mr. Dollar’s presentation before the Land Use Commission, who says they can just occur in natural ocean water without any attributes from the land, I have to evaluate the sources. In one case I have four disinterested parties working for UH Hilo in the Marine Science Department, and the other I have a party contracted by an applicant for a land use change. So I certainly cannot say these independent people that were contracted by the Planning Department, I should disregard their testimony; I tend to more highly regard their testimony because they are disinterested. And I personally, from reading these things, feel like we need to do action; it’s not like we can wait until we have the situation develop here, which developed on Maui.And the situation is still strong on Maui, and is stronger now than it was a number of years ago. I lived on Maui in the 1970s. This was not going on down at that time even though – to my knowledge it wasn’t and I had read anything about it – even though Hawaiian Commercial & Sugar was sure doing their agricultural operations and Kaanapali was in full bloom back then. So what I’m saying is when I read Mr. Brock’s interpretation of his sampling, it reads so very different from what I read from the Marine Science Department of University of Hawaii at Hilo; and what I read from the Marine Science Department of University of Hawaii at Hilo is that things have reached a crucial situation. As Commissioner Iwashita indicated, conditions may be developing for environmental degradation as what we read in this report. So to me changing monitoring protocols and all is a very – perhaps necessary but – weak response to this. So – I don’t know – I’m very appreciative that the County contracted this that we have a third point of view; I very much like the idea that we have a conference to try to work out what are very different attitudes as far as interpretation of the results. But I personally can certainly not support going forward as if this report never existed that essentially contradicts interpretation what so much of what we’ve EXHIBIT C 7 heard over the years. So I certainly welcome your response to that or any of the Commissioners. Thank you. BAIL: I also welcome -. GRAHAM: Yes, Ms. Bail. BAIL: I also welcome the Planning Director’s suggestion that this be addressed in a conference. The monitoring that we conduct is overseen by various regulatory agencies, and the implications of changing the monitoring protocols would involve oversight issues with all of those other regulatory agencies as well. The report does note that we do have a good data set for Waikoloa. I think there is also -. The report has never formally been provided to us by the Commission for any kind of response. We are certainly aware of it; we certainly would like the opportunity to address it. I’m inclined to think that through better community involvement in a non-adversarial proceeding, there can be better use made of the report, when further input is able to be had from the community as to the contents of the report. And so we will welcome the Planning Director’s suggestions to hold a conference to examine the report and discuss it. GRAHAM: Thank you very much. I did request of Mr. Darrow from the last meeting that I knew the person who again was an independent person here in West Hawaii and most knowledgeable about water, was a Bill Walsh who works for Department of Land and Natural Resources; and I think Jeff did request, if he could make it today, to come. So if he is here, I would certainly welcome him and I’m sure the rest of the Commission would also, if he has any comments he would like to offer to the Commission about how we should interpret the data we are receiving and anything else that he feels could be helpful. So Mr. Walsh, I’d appreciate your coming forward, if you would. Can I first swear you in after you sit down? Could you raise your right hand, please? And do you swear or affirm to tell the truth today on this matter before the Hawaii County Planning Commission? WALSH: I do. GRAHAM: Thanks. And give your name and address as you begin your testimony, please. WALSH: I am Dr. Bill Walsh. I am the West Hawaii Aquatic Biologist for the Division of Aquatic Resources, Department of Land and Natural Resources. GRAHAM: Thank you. Go ahead with any comments you care to make. WALSH: Let me start off being very frank, and reiterate what Mr. Graham is saying. In the best of all worlds scientific information would have a certain level of certainty, and it would be independent of where it came from. The reality of the situation is however – and we’ve seen this repeatedly here in Hawaii and elsewhere – is that you have to see the source. And as Mr. Graham says, and I would certainly reiterate and emphasize, that information coming from paid consultants does not have the same credibility without any other inspection of the data or peer review of the data than you might expect from people who have no vested interest other than the scientific integrity. This is pretty blunt, but we’ve run into the situation repeatedly throughout the state from Hokulia to Pila`a, and I can see things developing here. Now the EXHIBIT C 8 statement from Steve Dollar that in his opinion – his opinion – based on inadequate science, that the algal infestations on Maui are totally independent of development would be hotly contested by researchers from any number of institutions around the state. So given that, I’m just essentially saying check the source of the information; they are not all equivalent. More specifically, getting to the report that the UH researchers did, they made note that they essentially investigated the water quality monitoring efforts at 13 developments in West Hawaii, and said only three of them actually had enough information where you could develop some sort of trends over time. And certainly Waikoloa is one of them, and they should be commended for that, for having gone beyond what other developments actually should have been doing. Okay, that being said, however, if you go back to the original protocols that were developed in 1992 – and that was by a conference; there is really not a need for a conference; the conference was held in 1992; Consultants such as Steve Dollar were part of that, scientists were part of that, managers were part of the conference. They came up with a number of recommended protocols for water quality and biological monitoring for different developments in West Hawaii. They kind of fall into several different categories: One is classic water quality nutrients – that’s the one that pretty much gets the center of attention – and Waikoloa has been an example on having very good water quality measurements. However, what the water quality measurements are indicating is that there has been degradation of both the anchialine ponds and the near shore coastal waters. And that’s based on the interpretation coming out of the University of Hawaii report. Now you would probably very clearly expect to get a counter interpretation of the data from paid consultants, and I would not be surprised. However, based on what the University of Hawaii is saying, anchialine pond environments – which do not have, interestingly, have any Department of Health water quality standards; they don’t look at them; so the only standards that are available for anchialine ponds are developed by the National Park Service, so that is what the UH report uses – and they say, if you read their report and you look at specific nutrients in there, they are way out of compliance. In one case it was like, for nitrate, 2 to 45 times above the baseline standard acceptable level. So the anchialine ponds – this is from 1991 comparison to 2002, and it’s in the report – have been degraded; and it says the likely sources are irrigation water, waste water, urea-base fertilizer; all human associated kinds of input. With regard to the coastal waters, it’s the same situation. The data says that – and this data collected by Waikoloa – that the near shore coastal waters are being impacted; they are being degraded. You’ve heard statements sort of generalizing that, saying this is sort of setting the stage for problems: For problems of alien algae proliferation, or just even native algae proliferation, for the development of ciguatera, which is a dinoflagellate that grows on limu. And they are also saying this is the beginning of a danger zone. West Hawaii isn’t exempt from what could happen on Maui. Now in terms of the monitoring, what’s going on at Waikoloa? As I said there’s one aspect; it’s nutrient analysis. However, thet protocol in 1992 said there were other kinds of monitoring that should be going on in developments. One very broad and important class has to do with sewage – so looking at things like enterococcus, looking at fecal coliform, clostridium – none of that monitoring has occurred at Waikoloa. So that’s something that was recommended back in 1992, and none of it has been done.Another broad class of monitoring that was recommended by the 1992 conference and the protocol guidelines had to do with looking at the sediments in near shore areas. Sediments are important not only just from things running into the water but because they trap bio-accumulated toxins. So if there is pesticide being used, if there is a heavy metal something or other, any range of known pollutants, they can be sampled in the sediment. There is a requirement that – or rather a recommendation in the monitoring guideline protocols – EXHIBIT C 9 that if there is nothing really untoward being found, there should be at minimum of at least yearly sediment sampling, and they say you do certain things with the sediment. Waikoloa did two samples when they started, and that’s it. There has not been yearly sampling. So that’s something that’s required or – excuse me, not required, it should be required but – it’s recommended but has not been done. The third class of monitoring that was recommended by that protocol is dealing with biological monitoring. One part being the sewage stuff, but then they say what about looking at the health of the near shore biota – looking at coral health, looking at invertebrate health, looking at a number of fishes and so forth – just standard biological monitoring. Other than Chlorophyll A, which is just an indication of phytoplankton abundance, there has been no biological monitoring occurring at Waikoloa. So there is good monitoring in one aspect, but in three other aspects there has been essentially no monitoring. Now with all due respects to Mr. Yuen saying that we should have a conference and we should get together and make this requirement for all developments, I would say, well, that conference has been held. It’s very clear what should be required. And when do you start? When do you start requiring it? Maybe this is the time. GRAHAM: Thank you, Mr. Walsh. Do we have questions from the Commissioners? Commissioner Iwashita? IWASHITA: I just had -. Out of my ignorance here, Doctor, are there standards for each of these three other recommended testing protocols that developers, if we require them to do it -? WALSH: Right. For some of them, there are. So when you are looking at enterococcus or you are looking at sewage, you know, things that Department of Health traditionally has had experience and interest in, then there are standards. Now they would not pertain, for example, to the anchialine ponds because that is not under the purview of the Department of Health. There is no one really taking responsibility for the health and management of anchialine ponds. For sediments, there are also some qualitative and quantitative standards for that. Now when you get to the biological monitoring, like sort of the health of the coral reef, that’s more problematic. There is not a clear cut, you know, if you see this, then you exceeded the standards. In those cases, typically -. IWASHITA: Can I interrupt? There is no baseline kind of studies? WALSH: Well, that’s exactly what you look for. You try to get a baseline before development occurs, and then you watch the trend through time. And the way you say, to sort of say, well, it’s due to what’s happening inshore, is you have controlled areas where development, for example, is not occurring and you compare the control, which is more or less a natural unaffected situation, with that. So that’s the kind of protocols you use. It’s standard, you know, experimental methodology. And that’s recommended in this report that those kind of approaches for this more sophisticated monitoring be applied – that you have a before and an after study, and you have a control and impact study combined. GRAHAM: Thank you. Commissioner Watanabe? EXHIBIT C 10 WATANABE: I have a question for the Director. You know, and I would tend to agree with you; science changes over time and we learn new things whatever, and so you are talking about holding a conference, so that we can have some type of consistency in the monitoring. However, the conditions were written at earlier periods for much of these developments. And I’m wondering if there are other vehicles besides these conditions that would help us to establish some standards for monitoring as well as enforce them. If that can be done through like some kind of law or - that we can impose upon development at a future date when we are able to agree on some type of monitoring standard, so that these projects, the conditions or what we monitor for can be revised at a later date when we learn more things. That’s what I’m really looking for. C. YUEN: I believe that the conditions of the various SMA permits, I know you see , permits are broad enough to modify what kinds of monitoring is done as a result of updated information. In the course of doing this follow-up work we have to look at all those conditions. And if they are not, the permits themselves can be amended to require different kinds of conditions. I don’t like working on the conditions of something like the environmental monitoring in the context of this permit for a time extension for two golf courses. I think that we certainly have reason to be cautious about development in the area. That’s the reason for the conditions on the golf course that are designed to minimize potential for nutrients reaching from the golf course into the anchialine ponds or near shore environment. But at any rate the short answer to the question is that I think that if a result of this is a set protocol, we will be able to impose it. WATANABE: Okay, I appreciate that, and I -. Can I follow up? I kind of tend to agree with you because we are mostly concerned about nutrients when we are talking about the golf course and what not, and we have possibly conflicted testimony here. But I would venture to guess that even ocean temperatures are going to affect coral growth and algae bloom, etc., which is nothing to do with the golf course. And if we have a vehicle then to amend some of the monitoring conditions as we move forward with these SMA requirements, then for me personally I feel comfortable with it. GRAHAM: Thank you. We are trying to direct questions to the testifier here at the moment, if we could. Commissioner Alameda? ALAMEDA: I have no further questions for the Applicant or the testifier, but I’m ready to move forward to the next step. GRAHAM: I do have a question for the testifier, if I may. Since the algal blooms are the most obvious degradation in water – we see on Oahu and Maui and all – and presumably there are monitoring requirements on those islands. Here we have concentrations given to us by the periodic monitoring at different depths and locations of what the nutrients – the nitrogen phosphorus – are. Do we have anything from, let’s say, Maui which says when the nutrient levels were such and such, we didn’t have algae; when it passed some boundary, then we had development of algae? Is there any way we can kind of use any numbers coming from other place and foresee what we might be walking into here? WALSH: I think that’s possible. There is recent research underway by Dr. Celia Smith who is in the Botany Department of UH Manoa. And she has established, I think, sort of unequivocally that there is essentially a nutrient gradient that rolls out from areas where there is EXHIBIT C 11 injection for sewage treatment plants and so forth, that nexus of nutrient enrichment is revealed on the coastal waters, and also by using nitrogen isotope analysis to actually identify that the source of this nitrogen is being incorporated in the algae. So if you look at an injection well – and these typically are very close to the shoreline and apparently the leachate that comes out into the reef, coming up from the sediments – as you move away from that, the nutrient concentration in the near shore waters of the sediments gets less and less and less and less. So there is a clear signal that these human inputs in those sewage treatment plants are high on the list of impacts, or having a direct contributory affect on the near shore water. And then this other work – nitrogen isotope analysis – is suggesting that those nutrients are in fact being incorporated in the algal tissue. So it’s almost the smoking gun for what’s really driving the proliferation of algae in the last few decades there. But in terms of having a level of which all of a sudden things become critical, I don’t know if I could say that; I don’t know if they could say that, either.Part of the issue on Maui – what makes it complex – is compared to the fish populations, the herbivore populations, which seem to be a key element in sort of keeping levels of algae down, even if nutrients are rising. We are in a very good situation here.Our algal feeders or herbivores or Parrot Fish populations, the Surgeon Fish populations, are very high, so they graze the stuff. Now when you compare our populations to Maui, it’s a different game; populations are very much lower there, likely due initially to over-fishing. But once the algae starts accumulating, if you lower the population of fish, it changes the whole habitat, so that areas maybe where Manini and important herbivore could settle out before, now there is algae covering it, they don’t have a shelter, they don’t even settle there. So it just becomes as positive feedback loop of, you know, more algae because of the nutrients, less fish because of the fishing, more algae, more algae, until you end up with a situation that’s just algal dominated. Waikiki is another example of that. So we are buffered somewhat by our wonderful reef fish population. But I think what the study from University of Hawaii was saying is that we are kind of on the edge of the window that, okay, we have the nutrients increasing in the coastal waters and anchialine ponds, maybe it’s being held back by fish, but if something depresses fish populations, very quickly that could change. We could have a state change from coral rich to algal dominated community. So you know that’s pretty much all I can say on that, is that we may be on a cusp of change, radical change. And the change would be expressed in more protected areas. If it’s in a wave exposed area, it’s going to be buffered by the water exchange. So embayments or places that are more protected would be the first areas – sort of a canary in a bird cage. GRAHAM: Thank you very much. Commissioner Rho? RHO: In your testimony you mentioned those anchialine ponds, and I think I’m quoting you correctly, you say that the nutrients or the chemicals in the ponds, I guess in Waikoloa, are way out of compliance. Is that not what you said? That is what you said? WALSH: Correct. Yeah, the authors of the report from UH presented at another aquatic conference in November. And there was one slide that they presented, looking at past and present water quality conditions in the anchialine ponds at Waikoloa, and two of the nutrients that they focused on: One, nitrate, which is really the critical nutrient for algal enrichment, from the 1991 to 2002 period, had increased by over 300 percent and then phosphate EXHIBIT C 12 – sort of its partner in algal enrichment – was up by 350 percent. So you know, very substantial increases. And they also note all nutrient parameters were out of compliance again with the National Park standards, and those are the other nutrients that are measured. So it’s a fairly clear signal that the anchialine pond in this relatively short period of time is changing dramatically; and in some cases it’s hard to exactly say where the change is coming from, but it’s certainly coincident with the build-out of the development. RHO: But I wanted to concentrate on your statement, “way out of compliance”. So there is some table some place that determines what “way out of compliance” is? WALSH: The National Park Service. Department of Health usually sets the water quality standards, right? For anchialine ponds, they do not, because they do not view that as their jurisdiction for some reason. RHO: I think you said the federal government or Feds. WALSH: The National Park Service has a set of anchialine pond water quality standards. And so you apply the water quality monitoring results to those standards, and you end up with -, you know, 300 percent which is way out of compliance for that. RHO: Right. And I think in response to one of the questions, you said there was nobody actually in charge of monitoring that compliance or enforcing compliance. WALSH: That’s correct. Neither the State nor the County really is looking over for the health or the maintenance, the water quality, the biological integrity, of anchialine ponds. It’s not even clear who has jurisdiction over those waters; are they state waters or are they county waters? It’s up in the air; nobody knows. RHO: How about the near shore waters? WALSH: Near shore waters, it’s very clear. That’s when DOH – Department of Health – has their water quality standards that are in effect for near shore waters. So when we talk about the results of the UH study, and they say similar kinds of changes in the deleterious sense, those are based against the Department of Health standards in that case – near shore waters. Oceanic waters, near shore waters: Department of Health monitors those. Ground water: Again no monitoring and no standards by Department of Health. And as I said, anchialine pond waters: No standards by DOH. RHO: Thank you. GRAHAM: Thank you. Commissioner Iwashita? IWASHITA: There are these words at the end of the executive summary talking about – I want to say it correctly; anchialine? WALSH: Anchialine, anchialine. EXHIBIT C 13 th IWASHITA: Anchialine ponds. I’m asking if you can clarify what – so that a 6 grader can understand what these -. WALSH: What page are we looking at? IWASHITA: The last sentence of the executive summary says, “Without development of an anchialine protection management program, anchialine ponds will most likely disappear.” Now when scientists say, I heard in the global warming study thing, one scientist was quoted to say, well, when it’s “most likely”, that means more than 90 percent. I don’t know if you agree with that, but that’s what’s sticking in my mind, “Most likely disappear within the next two decades” – I mean, the hole in the ground is still going to be there; the water is still going to be there – what does it mean it’s going to disappear? Or what do you think it means? WALSH: There is a distinctive community – a biological community – that is associated with those ponds. What sort of makes them unique is that there is fresh water that comes into them, but they are also connected tidally, so it’s this kind of balance between the ocean tidal effects and fresh water. So it’s not just a fresh water pond, and it’s not just a tide pool. It’s this very different thing, and that’s why it has its own name: Anchialine. It’s a balance and the salinity changes depending on the tide.And the community that develops in there – there are some very distinct animals. One actually is being considered for a threatened or endangered status is s small shrimp. There are very culturally important shrimp – Opaeula – little red shrimp that was used for palu, for fishing, also, you know, for pupu kind of thing. They’re only found in those anchialine ponds. And there are some algal species and such, so it has a community that’s very distinctive. So when they say “they’ll disappear”, they are not meaning that the ponds are going to dry up or just not be there, they mean that the definition of an anchialine pond and the community, it won’t be that way any more. It’ll be overgrown by algae that wouldn’t normally proliferate, because now the nutrient concentrations are higher, you know, people introduce Guppies or something that changes it – . IWASHITA: Carp? WALSH: Carp, well, Carp is not going be happy but – you know, it just totally alters what that pond community was like. And that’s what they meant by “disappear”. IWASHITA: And the other thing is I don’t have any kind of picture about how – like in the case of the 300 percent increase in the nitrogen in this one pond – how are they going to fix it? WALSH: Well, you know, essentially what they are indicating is that there are three sources for the enrichment. They are saying they’re irrigation or urea-base fertilizer or waste water. So that may not be the definitive answer; they are just sort of -, that was a suggestion. But that would be the first course of action saying, well, okay, can we identify where this nitrogen is coming from. If it is runoff from golf courses, well, okay, maybe better management practices have to be instituted – rather than a silver standard, it has to be a gold standard. We are kind of learning this as we go here. You institute a certain set of requirements and practices, and if you see things are getting worse, well, then maybe you have to say let’s investigate whether the practice is suitable or is of sufficient quality. So at this point, this is just kind of flagging that there is a change that is occurring, that the monitoring is only adequate in one section, and EXHIBIT C 14 maybe somebody should do something about this. That’s what that essentially the report was saying. IWASHITA: Thank you. GALDONES: Mr. Chair. GRAHAM: Thank you. Commissioner Galdones? GALDONES: Thank you, Mr. Chair. Is it Mr. Walsh? WALSH: Dr. Walsh. GALDONES: Dr. Walsh. Thank you for your testimony. There is a lot of information that you gave us. It appears that you are very knowledgeable with the subject matter that you are representing to us. However, as a Commissioner, after having gotten all this information, I’m asking myself, so what am I going to do with all this information as it relates to the Application and the recommendations? Because from what I see, the recommendations have certain safe guard that the Department is placing as a condition for approval. It appears to me that those conditions will meet concerns that you are raising, unless you are advocating that none of those activities along the coastline should be occurring in order to safeguard our coastal waters. And I don’t think that is where you are going to go. So my question, Doctor, is that are you making any recommendations to amend the recommendations that are provided by the Department? WALSH: I don’t have a clue what those recommendations are, and so I don’t feel comfortable saying anything about it. My only sort of broad scale – and it’s not a recommendation, you know, it’s an observation – is that, going back to what the protocols for water quality monitoring that were developed by the conference in 1992, they say, do this, this, this and this. My question is, well, only this is done, and not this, this and this – why not? And maybe this, this and this should be done in addition to what’s already being done. GALDONES: Okay. Again, Doctor, thank you for the information. And Mr. Chair, taking that into consideration, I echo the same concern or the statement raised by Commissioner Alameda. For myself I’m prepared to deal with the recommendations that is before us right now. GRAHAM: Thank you, Commissioner Galdones. Do we have any further questions? Commissioner Iwashita? IWASHITA: Just a clarification: From what the Director previously stated – I’m trying to clarify my impressions of it. Do I understand that basically your view is that these – I guess in particular the concerns that were raised by Dr. Walsh in terms of implementing monitoring for these other matters – fecal, sediment, biota – can those be implemented by rule, and that all people within the jurisdiction or within the area covered by the West Hawaii Coastal Monitoring Task Force Recommendation set, that by future rule implementation they can be required to conduct those tests? GRAHAM: Are you asking that of the Planning Director? EXHIBIT C 15 IWASHITA: Of the Director, yeah. GRAHAM: If we have no further comments for the testifier, I think we can let him sit back. Thank you, Mr. Walsh, for coming today. All right, go ahead, Mr. Yuen. IWASHITA: Thank you, Dr. Walsh. ALAMEDA: Are there any other testifiers? I’m just curious, Mr. Chair. GRAHAM: Are there any other public testifiers? I haven’t received notice of any. But if there are any in the room, you certainly have the opportunity right now. So you may come forward and sign up at the Planning Department, or you can just come right forward and sit forward here at a moment, if you’d like. All right, thank you.Seeing none, Mr. Yuen? C. YUEN: If I understand your question correctly, it would be something like this: Say, we have a conference like this, and the upshot is that the Department wants everybody to – I’m making up numbers, okay – to take 50 samples 6 times a year, and say a particular developer has been taking 10 samples 3 times a year – just making up numbers – and say the typical condition is going to say something like, as this one, there be a water quality monitoring plan approved by the Director, and it may be that what they’ve been doing conforms to the approved plan. All right? Now if the developer does not agree to change the monitoring, the Director can always bring a request to amend the permit to the Commission. And it’s my expectation that we will come to a reasonable agreement about what kind of changes would be made in the monitoring. Many of them there will be the flexibility to – within the terms of the permit itself – to increase monitoring or to change monitoring requirements without bringing the amendment to the Commission; but if it’s necessary, that would be the upshot of it. GRAHAM: Commissioner Iwashita? IWASHITA: Thank you. I guess then the other follow-up would be – like in the particular instance where we have testing that has been done that shows, you know, 300 percent increase in the nitrogen in the anchialine pond circumstance – I guess my concern would be that the Department has power through rule-making or otherwise to – or I don’t know if the Department wants to do it – but there has to be some way to fix it, you know, once the tests show that there is something going wrong. C. YUEN: Well, this is a situation where actually -, you know, we are familiar with this situation in anchialine ponds, and the reports are that the key indicator species would be the shrimp within the pond. So the ponds in Waikoloa specifically had very good shrimp populations and were very healthy, until fish were introduced in some of the ponds. So regardless of the nutrient levels, you have a healthy shrimp population in an anchialine pond until you get fish into it. And then they disappear. So I’m not going to blow the whistle on nutrient levels when we see that the real problem in – it’s just direct correlation; if you get fish in the ponds and the shrimp disappear, and that is a problem. And they have had, you know, there is a pond reserve that’s very closely watched in Waikoloa, and I’m basing what I’m telling you on all the reports from the pond reserve, that there was a situation pretty recently where fish got into some of the – not by themselves most likely but – fish got into some of the ponds, and that’s what has caused the degradation in the ponds. EXHIBIT C 16 ALAMEDA: Mr. Chair. GRAHAM: Yes, Commissioner Alameda? ALAMEDA: Thank you, Mr. Chair. The discussion is kind of moving into what we would typically do after a motion or maybe previous to a motion, maybe because we don’t know what to make a motion on. So I’d just like to maybe encourage Commissioners maybe we could move that way, and start having our full discussion with each other. Go ahead. GRAHAM: Yeah, I’m certainly in accord with that, that we move towards the completion of this Application. Yes, Commissioner Watanabe? WATANABE: I’d like to make a motion cause I tend to agree. I move that Amendment to Special Management Area Use Permit No. 25 – SMA 25 – be approved with an amendment to Condition 26, which references to the integrated golf course management plan for the second golf course, and I move that we approve this based on the Director’s recommendations. GALDONES: Second. GRAHAM: Thank you. Moved by Commissioner Watanabe, seconded by Commissioner Galdones. Do we have further discussion? ALAMEDA: Discussion. GRAHAM: Discussion, Commissioner Alameda. ALAMEDA: Thank you, Mr. Chair. I appreciate Dr. Walsh’s interpretation of the data and the questions brought up by you, Mr. Chair. But I’m sitting here, looking at the Applicant and thinking, you know, where did they maybe go wrong in their preparation. And just from sitting here, I’m thinking that they did pretty much everything that they had to do to prepare for this Application and to present today. And so our discussion is more around like – so what do we do. And how do we judge this Application then? Do we judge on kind of what was presented or on this global warming kind of environmental issue? And what I hear so far is that, like the Department of Health they do water quality monitoring, so, okay. But what I’m hearing is that maybe they should even do some sewage monitoring, some sediment monitoring, they should be looking at the balance or health of the reef, you know, the monitoring there, but they don’t. So is that the fault of the Applicant? I don’t know. So for me, I’m here sitting and thinking that I think the Applicant has done everything that they needed to do; this is a follow-up continuance from the previous meeting. And I’m inclined to be in favor of the motion because of that. GRAHAM: Thank you, Commissioner Alameda. Any comments from other Commissioners? Commissioner Iwashita? IWASHITA: My concern is that – and I appreciate everything Commissioner Alameda says and we have to look at the practical aspects of, you know, this is a request for an extension, and these are conditions on an SMA. And so I think that, in my mind anyway, the way I look at EXHIBIT C 17 it is we are still looking at the factors in 205A and whether or not, and how those weigh in granting the extension. And what I’m concerned about it is that, as Dr. Walsh pointed out, the study or the task force that was done in 1992 – or before 1992 that resulted in the guidelines being prepared in 1992 – they haven’t been implemented by the County or the Department of Health or -, you know. And so the developers are, you know, and they’re not going to do it on their own, they haven’t done, you know, it hasn’t been done. And so we are at the point today where we have some information that indicates that there is degradation. The Director has indicated that he has some question about whether anything more needs to be done in implementing this. I’m not a scientist, on the other hand, though, in terms of what’s being suggested by the scientists that did prepare this April 2006 report, it is troublesome to me that the recommendations have not -. If you look at all the recommendations, at best it has been 25 percent implemented, and for us to -. There are these predictions about anchialine ponds disappearing in 20 years. I’m concerned that if we don’t start doing something, if we continue to -. An extension is basically another approval of the project that was approved before. The time element was placed for a reason; in my mind it was because this is not a perpetual right. You were granted the entitlement to do the project, you have certain time to do it; if you don’t do it in that time, it disappears unless this body says, you can do it – continue to do it. In the meantime we have this added science that has been presented to us. So what I am struggling with is -. Frankly I don’t feel comfortable that the conditions that are placed on the extension are going to implement the recommendations or the protocol in the West Hawaii Coastal Monitoring Task Force Guidelines. It doesn’t seem like it’s going to be. And so I would like a condition that would satisfy that concern; that would make me feel comfortable that these Monitoring Task Force Guidelines will be implemented. When I grew up, I took it for granted what’s in the ocean. And now that I’ve got all this white hair, I tend not to take it for granted. As I said last time, my son and his friends like to go diving and do all those water things, right? Maybe because they are young. But he’s only 19 and he can see things are getting worse in his short life – from the time that he first started when his grandfather used to take him fishing in the bay in Hilo until today – he can see differences. So now that we have some science that are raising red flags about why this is happening and how this is happening, I am not comfortable that the conditions that we have on this extension, which is essentially saying, go ahead, you can have another 5 or 10 years or whatever to do this, I don’t see that those conditions are going to be effective in implementing the Coastal Monitoring Task Force Guidelines, which Dr. Walsh has made clear, you know, at least you do that so you have a base of information in which something can be figured out what needs to be done. GRAHAM: Commissioner Galdones? GALDONES: Thank you, Mr. Chair. I have a question for Commissioner Iwashita and also a question for Director Yuen. A question to Commissioner Iwashita is is he introducing an amendment to the motion? IWASHITA: No. EXHIBIT C 18 GALDONES: A question to Mr. Yuen: If what Mr. Iwashita suggested is incorporated in the recommendation, does this apply only to the Applicant or does that also apply to all of the other golf courses that have the same kind of activity along the coast line? C. YUEN: Well, there is no way to separate out the monitoring; the monitoring is done for the resort as a whole. So I think that’s why you have these two attorneys in front of you – one representing this particular Applicant and the other representing the resort as a whole – because the resort, Waikoloa Development, does the monitoring, not necessarily the Applicant for this project within Waikoloa Resort. They are both involved because the SMA Permit covers the resort as a whole. But if you amend the condition for the water quality monitoring, it’s something that applies to the project as a whole. And from the standpoint of the County doesn’t care who bears the expense, you know, how it’s allocated within a particular resort, and I don’t know how internally a resort like that allocates – whether they make the different applicants or the different sub-entities contribute, or whether they just cover it as part of their services that are involved in the resort. But there isn’t a way to separate this out, because this is a golf course that covers a large area mauka of the existing development. The only exception would be there may be some kinds of wells that get monitored on site. But if you are talking about the coastal water quality, you have to go out in a boat and take it or from the shore, and there is no way to separate out what’s caused by two new golf courses or from something else that’s going on. GALDONES: Thank you. GRAHAM: Yes. Commissioner? WATANABE: Mr. Chair, I believe we are at an impasse because for one thing we only have six Commissioners here. It’s obvious to me we are going to have two no votes; we need five to carry on. We also have disagreement amongst the applicants; if we are going to increase the monitor requirements, one of them respectfully withdraws their request for the extension, the other is willing to proceed. And I’m not sure I agree that a resort has to be responsible for the monitoring of animal lives, sediments, and to what extent that is the responsibility of the resort as opposed to the state. So you know, I think we are arguing a much broader issue here. I would suggest that we call for a vote because I don’t expect it to pass anyway; we don’t have the votes. So why continue this discussion that I’m not sure is all that germane to this particular Application. GRAHAM: Okay. Any other comments? Commissioner Rho? RHO: Can I just elaborate on Mr. Watanabe’s comment? And I guess the reason I asked about this way out of compliance for those ponds and the response is basically nobody is responsible for compliance and nobody is responsible for governing the ponds. In the popular or the common folk like me – I consider myself as average person – my understanding was that the ponds were doing fine and in fact improving. And I based it on just maybe one article that I read in a plane flying over to Oahu and back. And I think the resorts have a responsibility, and I get the impression that they take that seriously in preserving water quality, etc. etc. But on the other hand, because we don’t have any enforcement power – I’m not talking about the Commission itself, I’m talking about statewide, as described by the person testifying – it’s like asking the fox to guard the hen house. So I don’t care how many requirements you placed on the resort or the developer, if we then ask the developer to give us a report, because we have no funds or no EXHIBIT C 19 mechanism to enforce the compliance or the regulation, then we are going to be back at the same place. So actually in the end – I mean I’m not even sure how I’m going to vote, if we even have, well, we are going to have a vote on that motion but – I guess I’m inclined to approve and see how far we get. I mean this idea about contaminating the ground water, the near shore water and those ponds have been going on for years; and I’m actually surprised that there are no testifiers besides those that testified today; I’m actually surprised. I guess because this is an old application people don’t really understand, or at least environmentalists don’t or didn’t take note of it. But if we don’t have enforcement – I mean I would have to give the resort the benefit of the doubt that they know that that’s a resource that’s going to impact their livelihood as well. Thank you. GRAHAM: Commissioner Iwashita? IWASHITA: I previously referred to 205A, and I just wanted to make clear on the record 205A-26(2) sets for the guideline – one of the guidelines – that we are required to follow in any request for approving, in this case the extension of time to do this development, and says – what needs to be shown is – “That the development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests.” So if we take the report and assessment for the University of Hawaii Hilo scientists and give that credence, as I’m inclined to do, then what we have is showing that there has been substantial adverse environmental or ecological effect of the development as it stands, not any further development, just as it stands. And so then we need to consider whether or not that adverse effect can be minimized in some way – that’s why I raised my concern about the conditions that can be placed on this extension – and then whether those conditions, or the minimization by those conditions, outweigh public health, safety, or other compelling state interests. So that is the basis upon which I’m evaluating this and which, I believe, Chapter 205A requires me to review and apply that analysis in whether we grant or deny this extension. GRAHAM: Thank you, Commissioner Iwashita. I might just say personally, you know, I feel like what I most represent is the people of State of Hawaii, and coastal water quality and anchialine pond quality is a precious resource for all of us, so I take that as my highest calling. I think I try to do what is right in that regard. Thank you. Jeff? DARROW: Thank you, Mr. Chairman. The motion before us is to approve with an amendment to Condition 26 that was listed within the memorandum from the Planning Director to the Planning Commission. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Galdones? GALDONES: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. EXHIBIT C 20 DARROW: Commissioner Iwashita? IWASHITA: No. DARROW: Commissioner Rho? RHO: Aye. DARROW: And Mr. Chairman. GRAHAM: No. DARROW: The motion does not pass, four to two. GRAHAM: All right, thank you. So I’ll check with Mr. Torigoe, but I believe in such situations we have sort of automatic continuance to our next West Hawaii, then we’ll have a different set, perhaps, of Planning Commissioners to some degree. TORIGOE: Yeah, what normally happens under the SMA Rules, basically you have a reasonable time not to exceed 30 calendar days after conclusion of the hearing or within a longer period as may be agreed by the applicant, you have to render a decision.So assuming that the Applicants would like to have you reconvene to see if you can come to a five-vote decision, then you would go ahead and continue. GRAHAM: Is that acceptable to the Applicants that we wait our next meeting and continue this hearing again? W. YUEN: That’s acceptable to Waikoloa Homesites Venture. GRAHAM: Thank you, Mr. Yuen. BAIL: I’m waiting for a response from my client. We would like a decision today, and we do not request that it be continued. GRAHAM: Okay. Mr. Torigoe, how would we proceed? TORIGOE: Well, there would have to be five votes either up or down, and it does not appear that there is one. On the current state of the record, there is a possibility that someone could introduce a different set of conditions and try for a different motion. GRAHAM: Commissioner Alameda, you had a suggestion? ALAMEDA: Thank you, Mr. Chair. I was going to say maybe the Applicant is not aware of how, you know, the process. So if the consultant could maybe educate them around that. Because basically we can’t make a decision because we don’t have five votes either way. GRAHAM: Ms. Bail, is there anything you need clarified or -? EXHIBIT C 21 BAIL: My understanding then is that the extension is not approved. Is that correct? TORIGOE: No, there would have to be some action by five votes one way or another; there would have to be a motion to deny the application that would pass by five votes. ALAMEDA: Mr. Chair? GRAHAM: Commissioner Alameda? ALAMEDA: I wonder if we could take a five-minute break, or no? GRAHAM: Well, we sure could. We are about ready for lunch time also, I know. Would you like a few minutes to consider this? ALAMEDA: Well, I just think that would help the consultant confer with the Applicant. BAIL: Two minutes. We are all hungry. GRAHAM: That would be fine. Thank you, Commissioner Alameda. ALAMEDA: Thank you. RECESSED The Chair called a short recess at 12:26 p.m. RECONVENED The meeting reconvened at 12:30 p.m. GRAHAM: Okay, we’ll come back to order. Ms. Bail, do you have further comment? BAIL: We continue to oppose the extension request. I remind the Commission of our request that we be allowed the opportunity to withdraw our request for an extension all together, if additional conditions are going to be imposed beyond those recommended by the Planning Department. And it is my understanding that the Rules provide that in the event the Commission fails to render a decision or approve or deny within the prescribed time limit, the request shall be considered denied. I believe Mr. Yuen would probably also like to speak to this issue. GRAHAM: Yeah, I think what Mr. Torigoe was saying was the time limit does run for a while. So the question for you, I think, is more, well, you want to withdraw at this point or do you want to let the time limit run until it has expired, that’s all. Mr. Yuen? W. YUEN: On behalf of Waikoloa Homesites Venture, as the owner of the property, we are not authorizing a withdrawal; we are not consenting to a withdrawal of the request. I th believe that the next hearing, I was told, is the 16 of March, and I think that falls within the 30- th day time period, if that is the 16. GRAHAM: Mr. Torigoe? EXHIBIT C 22 th W. YUEN: So like the 29 day. GRAHAM: Just wondering whether the next Kona side meeting falls within the time period for an SMA permit. TORIGOE: Well, basically what we’d want to do if you want to start the clock running, I think you should formally close the hearing today, if you want to do that; and then 30 th days would run from today. What is today, today is the 15. GRAHAM: Yeah, since it’s February it’s only a 28-day month. Then I would think th that the 16 of March would fall within the 30 days, just barely. Is that correct, Norman? HAYASHI: I think we would meet the 30-day requirement, but we could always have nd it on March 2, which is within that time period, although the meeting is in Hilo. It doesn’t necessarily have to be on the West side. GRAHAM: Well, I think we’d prefer on the West side, if we can, because of the public testimony aspect. Ms. Bail, understanding what Mr. Yuen is requesting, is that okay with you? BAIL: No, we would oppose an extension of time. GRAHAM: Mr. Torigoe? TORIGOE: Just to be clear, the Rule provides for another 30 days without any further action. So basically if the Commission were just to deadlock today, then under the Rules, unless there is some affirmative action taken, it would stay on the agenda for another 30 days. And then if there is no decision at that point, then it would be a default, a denial. BAIL: I understand. W. YUEN: I understand under the Rules it’s automatically deferred without any action then, as long as the action is taken within 30 days. Is that what you are saying? TORIGOE: Right. Basically that if there is no action taken today, then under the Rules it would come up again, or it could come up again, within the next 30 days. And if no decision is made, then it would be a default denial. GRAHAM: Ms. Bail? BAIL: In my view that means it’s up to the Commission to determine whether to continue it on the next agenda, and it’s our position that we do not request the continuance. GRAHAM: Is that correct the Commission has to affirmatively choose to continue? TORIGOE: Well, no, I think the Rule basically leaves it alive for another 30 days, assuming that we close the hearing today. And when you put it on the agenda, whether it’s the Hilo meeting or the next Kona meeting, is up to the Commission. EXHIBIT C 23 GRAHAM: So unless the Applicant takes some specific action today, it will automatically go to the next meeting? TORIGOE: Right. And it sounds problematic because at this point I’m not sure exactly who has the ultimate authority, because there is the landowner and there is – who is the Applicant here? BAIL: Waikoloa Development Company, which holds the SMA, is the Applicant. Waikoloa Homesites Venture intends to build the golf course. W. YUEN: Is the landowner. GRAHAM: So then, Ms. Bail, would you choose to take some affirmative action today, asking for some course of action? Or are you willing to let our normal procedure continue it until the next meeting? BAIL: I’m willing to let it continue until the next meeting. But I would request that it not be done through a formal extension, and if it elapses within the 30 days, we understand that. GRAHAM: Fine, thank you. Okay, are we finished with this agenda item then? It appears so. I think we probably want to take a lunch break at this point. So we’ll close the public hearing today on this item? Commissioner Alameda? ALAMEDA: I move that we close this hearing. GRAHAM: Thank you. All in favor, say aye. COMMISSIONERS: Aye. GRAHAM: All opposed? Okay. Thank you. The discussion ended at 12:36 p.m. Respectfully submitted, Noriko Sauer West Hawaii Secretary EXHIBIT C 24